THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 THE 
 
 CONSTITUTIONAL LAW 
 
 OF THE 
 
 UNITED STATES 
 
 BY 
 
 WESTEL WOODBURY WILLOUGHBY, PH. D. 
 
 Professor of Political Science, Johns Hopkins University; Managing- Editor 
 American Political Science Review; Author of " The American Con- 
 stitutional System," "The Supreme Court of the United 
 States : Its Place and Influence in our Consti- 
 tutional System," "The Nature of the 
 State," " Rights and Duties of 
 American Citizen- 
 ship," etc. 
 
 VOL. I 
 
 NEW YORK: 
 
 BAKER, VOORHIS & COMPANY 
 1910 
 
 82204
 
 Copyright, 1910 
 By W. W. W1LLOUGHBY, Ph.D. 
 
 J. B. LYON COMPANY 
 
 PRINTERS AND BINDERS 
 
 ALBANY N. Y.
 
 V, I 
 
 PREFACE. 
 
 In the preparation of this work, the aim has been to give a 
 
 logical and complete exposition of the general principles of the 
 
 constitutional law of the United States. The effort has been to 
 
 ascertain and to discuss critically the broad principles npon which 
 
 * have been founded the decisions rendered by the Supreme Court 
 
 ^ of the United States in the leading cases, anol thus to present, as a 
 
 -y~tematic whole, a statement of the underlying doctrines by 
 
 which our complex system of constitutional jurisprudence is 
 
 governed. The performance of this purpose has required that 
 
 attention should be devoted rather to a consideration of those 
 
 ^ principles of our public law which are fundamental, and especially 
 
 of those the possible implications of which are not yet certainly 
 
 i determined, than to a statement in minute detail of those adjudi- 
 
 *o cations which, in themselves, establish no general rule of law, or 
 
 illustrate no novel application of one. This latter task is one 
 
 which more properly belongs to compilers of digests or to the 
 
 authors of more special text-books. It is confidently believed, 
 
 I however, that in the present work no really important case has 
 
 ^ been left unnoticed. 
 
 Such merit as the present work may possess must, then, con- 
 sist in its systematic arrangement, and in the fact that, with 
 reference to the constitutional principles which are discussed, 
 it fully sots forth the processes of judicial reasoning by which 
 they have been established, it suggests the corollaries which may 
 be drawn from them, and it indicates the relations which they 
 bear to one another and to the more general doctrines of Ameri- 
 can public law. 
 
 Whenever space hag seemed to permit, the author has repro- 
 duced the language of the Federal Supreme Court, This has 
 jr-ccvsitated many and, at times, extended quotations. It is be- 
 lieved, however, that this practice will commend itself to the 
 reader. Since the character of this work requires in any case that 
 
 [Hi]
 
 IV 
 
 PREFACE. 
 
 the arguments should be given, the authoritative language of the 
 nation's highest tribunal is certainly preferable to a statement 
 by a commentator of his understanding of the court's ruling or 
 reasoning. 
 
 The author desires to make especial acknowledgment of the 
 very great assistance which he has received from Hon. John C. 
 Rose, United States District Judge, and Dr. Frank J. Goodnow, 
 Professor of Constitutional and Administrative Law at Columbia 
 University. Both of these friends have generously spared the 
 time to read this treatise in the proof. That they have not, how- 
 ever, committed themselves to all of the positions assumed herein, 
 hardly needs to be said. 
 
 The author wishes also to express generally his debt to the 
 various law magazines published in this country. These journals 
 are an honor to American legal scholarship, and to the articles 
 contained in them the author owes more than he has been able 
 specifically to acknowledge. 
 
 In conclusion, it may be added that, where appropriate, the 
 author has repeated language used by him in an earlier and 
 briefer work entitled The American Constitutional System. 
 
 The work as a whole is based upon lectures delivered during 
 recent years to the graduate students in Political Science at the 
 Johns Hopkins University. 
 
 June, 1910. W. W. W.
 
 TABLE OF CONTENTS. 
 
 VOLUME I. PAGE. 
 
 PREFACE iii 
 
 TABLE OF CONTENTS v 
 
 TABLE OF CASES xxxi 
 
 TEXT OF THE CONSTITUTION Ixix 
 
 CHAPTER I. 
 THE SUPREMACY OF THE CONSTITUTION. 
 
 SECTION 1. The Courts and Unconstitutional Laws 2 
 
 2. Marbury v. Madison 2 
 
 3. Criticism 3 
 
 4. The expediency of this judicial power 7 
 
 5. The courts do not " nullify " laws 10 
 
 CHAPTER II. 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 
 
 SECTION 6. Circumstances under which the courts will hold an act of 
 
 Congress void 12 
 
 7. Legislative motives 18 
 
 8. Expediency and reasonableness of legislation not subject to 
 
 judicial determination 19 
 
 9. Presumption in favor of the constitutionality of an act 
 
 of Congress 20 
 
 10. Presumption in favor of the constitutionality of a state 
 
 statute 22 
 
 11. The force of contemporaneous or long continued legislative 
 
 interpretation 25 
 
 12. Legislative and executive practice not absolutely binding. 26 
 
 13. Extrinsic evidence 27 
 
 14. Technical terms 28 
 
 15. The interpretative value of debates in constitutional con- 
 
 ventions 30 
 
 16. The Federalist 31 
 
 17. History of the times 32 
 
 18. The interpretative value of legislative debates 33 
 
 19. Resort to the preamble for purpose of construction.... 35 
 
 20. " We, the People " 36 
 
 21. " 'Constitution " 37 
 
 22. " Common defense and general welfare " 39 
 
 23. The Constitution is to 'be construed as a whole 40 
 
 ~24.~-So-called "natural" or "unwritten constitutional" laws 
 
 have no constructive force 41 
 
 25. The " spirit " of the Constitution 43 
 
 [v]
 
 vi TABLE OF CONTEXTS. 
 
 PAGE. 
 
 SECTION 26. Applicability of constitutional provisions to modern con- 
 ditions 44 
 
 27. The Wilson -Roosevelt doctrine of construction 47 
 
 28. Stare Decisis 51 
 
 CHAPTER Ili.t 
 
 THE DIVISION OF POWZRS BETWEEN THE UNITED STATES AND ITS MEMBER 
 
 STATES. 
 
 SECTION 29. Federal powers 53 
 
 30. Express and implied powers 54 
 
 31. Federal powers to be liberally construed 55 
 
 32. Strict construction a corollary of the States' Rights 
 
 Doctrine 58 
 
 33. " Necessary and proper " 58 
 
 34. MeCulloch v. Maryland 59 
 
 35. Administrative necessity as a source of federal power.... 62 
 
 36. International sovereignty and responsibility as a source of 
 
 implied powers 64 
 
 37. Resulting powers .- 65 
 
 38. Inherent sovereign powers ^>6 
 
 39. Express limitations upon the Federal Government 70 
 
 40. Implied limitations upon the Federal Government 72 
 
 41. Exclusive and concurrent federal powers 73 
 
 CHAPTER IV. 
 THE SUPREMACY OF FEDERAL AUTHORITY. 
 
 SECTION 42. Federal supremacy 78 
 
 43. The States may not be coerced 86 
 
 44. Conclusion " 4 91 
 
 CHAPTER V. 
 
 THE MAINTENANCE OF FEDERAL SUPREMACY: THE FREEDOM OF FEDERAL 
 
 AGENCIES FROM INTERFERENCE OR CONTROL BY THE STATES. 
 
 SECTION 45. State taxation of federal governmental agencies 92 
 
 46. Property of federal agencies may be taxed 95 
 
 47. State taxation of federal franchises fl!) 
 
 48. State taxation of patent rights 100 
 
 4!. State taxation of federally licensed occupations 101 
 
 50. State taxation of fedenil salaries 102 
 
 51. State taxation of federal property 102 
 
 52. State taxation of federal s:>. .untie- 103 
 
 53. Income from federal securities exempt from state taxation. 107 
 
 54. State taxation of circulating notes of national banks 107 
 
 55. State taxation of bequests to the United States 108 
 
 56. State taxation of national banks 108 
 
 57. Federal taxation of state agencies 110
 
 TABLE OF CONTEXTS. vii 
 
 PAGE. 
 
 SECTION 58. Federal taxation of property of municipalities 114 
 
 59. South Carolina v. United States 114 
 
 60. Federal taxation of state documents 118 
 
 61. Federal exercise of eminent domain in the States 119 
 
 CHAPTER VI. 
 
 THE MAINTENANCE OF FEDERAL SUPREMACY.- WRITS OF ERROR FROM THE 
 FEDERAL SUPREME COURT TO STATE COURTS. 
 
 SECTION- 02. Writ* of error to state courts 120 
 
 " 63. Martin v. Hunter's Lessee. 121 
 
 64. Cohens v. Virginia 121 
 
 CHAPTER VII. 
 
 THE MAINTENANCE OF FF.HKRAL SUPREMACY: REMOVAL OF SUITS FROM 
 STATE TO FEDERAL COURTS. 
 
 SECTION 65. Right of removal of criminal cases 124 
 
 66 Tennessee v. Davis 125 
 
 67. Right of removal in civil cases 129 
 
 CHAPTER VIII. 
 
 THE MAINTENANCE OF FEDERAL SUPREMACY BY HABEAS CORPUS TO 
 
 STATE AUTHORITIES. 
 
 SECTION 68. State courts may not interfere with federal authorities. . 130 
 
 69. Issuance of the writ by federal courts 131 
 
 70. The Xeagle Case 135 
 
 71. Writ issued only when imperative 136 
 
 CHAPTER IX. 
 
 THE MAINTENANCE OF FFDFRAL SUPREMACY: THE INDEPENDENCE OF 
 
 FEDERAL COURTS FROM STATE INTERFERENCE. 
 SECTION 72. Independence of federal authorities 141 
 
 73. Injunctions from federal to state courts 142 
 
 74. State restri. ti> n> upon the right of removal of suits from 
 
 state to federal courts 145 
 
 CHAPTER X. ^ 
 THE FEDERAL CONTROL OF THE FORM OF STATE GOVERNMENTS. 
 
 SECTION ~:>. State autonomy 151 
 
 76. Republican form of jrovennnent defined 151 
 
 77. The constitutionality of referendum laws 154 
 
 78. Dorr's relx-llion 156 
 
 7H. Luther v. BoHen 158 
 
 80. The r*'o ti-tnii-tion of Southern States after the 'Civil War. 161 
 
 81. Restricted <uirrajrc cmnpatilile with republican form of 
 
 government 164
 
 viii TABLE OF CONTEXTS. 
 
 PAGE. 
 
 SECTION 82. Public office not a property or contract right 166 
 
 83. Suits between two or more claimants to state office 168 
 
 84. Taylor v. Beckham 171 
 
 CHAPTER XL 
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES: THE FOURTEENTH 
 AMENDMENT. 
 
 SECTION 85. The Fourteenth Amendment 175 
 
 86. The Slaughter House Cases 177 
 
 87. Effect of Fourteenth Amendment upon rights enumerated 
 
 in first eight amendments 183 
 
 88. Suffrage not a necessary incident of citizenship 185 
 
 89. Legislative power granted Congress by the Fourteenth 
 
 Amendment 186 
 
 90. Summary - 193 
 
 CHAPTER XII. 
 INTERSTATE RELATIONS: FULL FAITH AND CREDIT CLAUSE. 
 
 SECTION 91. States independent of one another 194 
 
 92. Congressional legislation 195 
 
 93. Federal judgments and decrees 197 
 
 94. Full faith and credit clause applies only to civil judg- 
 
 ments and decrees 107 
 
 95. Full faith and credit clause establishes a rule of evidence. . 198 
 
 96. Judgments in rem and in personam 201 
 
 97. Nul Tiel Record 202 
 
 98. Marriage and Divorce 205 
 
 CHAPTER XIII. 
 
 INTERSTATE RELATIONS: THE COMITY CLAUSE. 
 
 SECTION 99. Privileges and immunities 213 
 
 100. Political privileges T 215 
 
 101. State proprietary privileges 216 
 
 102. Privileges of one State not carried into other States 217 
 
 103. Corporations not citizens within the meaning of the 
 
 Comity Clause 218 
 
 CHAPTER XIV. 
 
 INTERSTATE RELATIONS: EXTRADITION. 
 
 SECTION 104. Interstate extradition 222 
 
 105. Extradition by the States of the Union to foreign States. 224 
 
 106. Auxiliary legislation by the States 226 
 
 107. Judicial examination of extradition proceedings 226 
 
 108. Abduction and forcible return of fugitives from justice. 228 
 
 109. Trial for offenses other than those for which extradited.. 231 
 
 110. Who is a " fugitive " 232 
 
 111. Fugitive slaves 234
 
 TABLE OF CONTENTS. ix 
 
 CHAPTER XV. 
 
 INTERSTATE RELATIONS : COMPACTS BETWEEN THE STATES AND BETWEEN 
 
 THE UNITED STATES AND THE STATES. PAGE. 
 
 SECTION 112. Compacts between the States 235 
 
 113. Compacts between the States and the United States 238 
 
 1 14. Equality of the States 239 
 
 115. Contracts in re proprietary interests 242 
 
 116. Suits between States 243 
 
 CHAPTER XVI. 
 THE PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES. 
 
 SECTION 117. Territorial sovereignty ". 244 
 
 118. De facto control 244 
 
 119. Status of aliens t 245 
 
 120. Double allegiance 246 
 
 121. Status of aliens in the United States 248 
 
 122. Domiciled aliens 249 
 
 123. Aliens not domiciled 250 
 
 124. Exclusion and expulsion of aliens 251 
 
 125. The Chinese 251 
 
 120. Protection of the persons and property of aliens 254 
 
 CHAPTER XVII. 
 
 AMERICAN CITIZENSHIP. 
 
 SECTION 127. Citizenship defined 258 
 
 128. State and federal citizenship distinguished 260 
 
 12!). The Dred Scott Case 262 
 
 130. The Fourteenth Amendment 270 
 
 131. District of Columbia and Territories 273 
 
 132. Boyd v. Nebraska criticized 273 
 
 132. Wong Kim Ark Case 274 
 
 CHAPTER XVIII. 
 NATURALIZATION. 
 
 SECTION 133. Naturalization by statute 280 
 
 134. Naturalization by annexation of territory and by treaty.. 284 
 
 CHAPTER XIX. 
 
 EXPATRIATION. 
 
 SECTION 135. Denial of right of expatriation 286 
 
 136. Right recognized by United States . 288 
 
 CHAl'TKi: XX. 
 
 THE LEGAL STATUS OF INDIANS. 
 
 SECTION 107. Indian lands 292 
 
 138. The IOJM! status of Indians 204
 
 1 
 
 TABLE OF CONTENTS. 
 
 PAGE. 
 
 SECTION 139. Federal power over Indians 298 
 
 140. Congressional legislation 300 
 
 141. Federal jurisdiction exclusive: Cherokee Nation v. Georgia. 302 
 
 142. Worcester v. Georgia 304 
 
 143. Naturalization of Indians by statute 307 
 
 144. Disappearance of Indian tribal autonomy 308 
 
 CHAPTER XXI. 
 
 THE ADMISSION OF NEW STATES. 
 SECTION 145. The admission of new States 320 
 
 CHAPTER XXII. 
 
 THE POWEB or THE UNITED STATES TO ACQUIBE TEBSITOBY. 
 SECTION 146. The right to annex based on the right to admit new States. 325 
 L4Z. Annexation of Louisiana: Views of Jefferson 328 
 
 148. Territories as embryo States 332 
 
 149. Judj,pJaL-Qifl : Taney's views 334 
 
 150. Conclusions 337 
 
 151. The right to annex based on the treaty and war-making 
 
 powers '. 339 
 
 152. Power of the United States to alienate territory 342 
 
 CHAPTER XXIII. 
 THE MODES IN WHICH AND THE PURPOSES FOR WHICH TERRITORY MAY 
 
 BE AcQt:iRED BY THE UNITED STATES. 
 
 SECTION 153. Constitutional modes of acquiring territory 344 
 
 154. Annexation by joint resolution 344 
 
 155. Consent of inhabitants of annexed territory not required. 347 
 
 CHAPTER XXIV. 
 
 THE CONSTITUTIONAL SOURCES OF POWER OF CONGRESS TO GOVERN THE 
 
 TERRITORIES. 
 
 SECTION 156. Power to govern territories not questioned 351 
 
 157. Doctrines of the Dred Scott Case 353 
 
 CHAPTER XXV. 
 
 THE EXTENT OF THE POWER OF CONGRESS TO GOVERN THE TERRITORIES. 
 SECTION 158. Power to govern absolute 362 
 
 159. Classes of territorial governments 364 
 
 160. Constitutionality of these governments 365 
 
 161. Territorial governments are congressional governments. .. 369 
 
 CHAPTER XXVI. 
 THE DISTRICT OF COLTJMBTA. 
 
 SECTION 162. The government of the District of Columbia 372 
 
 163. Places purchased 378
 
 TABLE OF CONTENTS. xi 
 
 CHAPTER XXVII. 
 
 MILITARY AND PRESIDENTIAL GOVERNMENT OF ACQUIRED TERRITORY. 
 
 SECTION 164. Conquest or military occupation does not operate to annex PAGB. 
 
 territory ! 380 
 
 165. Authority of de facto governments 386 
 
 166. Status of conquered domestic territory 387 
 
 167. Presidential governments 388 
 
 CHAPTER XXVIII. 
 THE ANNEXATION OF TERRITORY BY TREATY. 
 
 SECTION 168. Congressional action not needed to complete annexation of 
 
 territory acquired by treaty 392 
 
 169. Cross v. Harrison 393 
 
 . 170. De Lima v. Bidwell 396 
 
 171. Dooley v. United States 400 
 
 172. Duties of President prior to congressional action 403 
 
 
 CHAPTER XXIX. 
 
 THE DISTINCTION BETWEEN INCORPORATED AND UNINCORPORATED 
 
 TERRITORIES. 
 SECTION 173. Limitations upon powers of Congress 405 
 
 174. Possible status of Territories after annexation 406 
 
 175. Unincorporated territory 406 
 
 176. Distinction between incorporated and unincorporatel 
 
 territories 407 
 
 CHAPTER XXX. 
 
 THE INSULAR CASES. 
 
 SECTION 177. Downes v. Bidwell 411 
 
 178. Position of Justice Brown 421 
 
 170. Argument of dissenting justices 427 
 
 180. Summary and criticism of 1); \vnos v. Bidwell 429 
 
 181. Status of Hawaii: Hawaii v. Mankichi 432 
 
 182. Right to jury held not to be fundamental 436 
 
 183. Alaska incorporated: Rasmussen v. United States 438 
 
 184. Othrr Insular Cases 439 
 
 ur.\!>TKi; xxxi. 
 
 CITIZENSHIP IN TTIE TERRITORIES. 
 
 SECTION 1R.">. Effect of cession of territory on citizenship of inhabitants. 443 
 180. Treaty provision-; 441 
 
 187. Statutory provision-* 447 
 
 188. Native inhabitants of Porto Rico not aliens: Oon/ales v. 
 
 Williams . 448
 
 xii TABLE OF CONTENTS. 
 
 CHAPTER XXXII. 
 
 FOREIGN RELATIONS: THE TREATY POWER. PAGE. 
 
 SECTION 189. The federal power exclusive 450 
 
 190. The federal power all-comprehensive* 451 
 
 191. The manner of exercise of the treaty-making power 455 
 
 192. The negotiation of treaties 456 
 
 193. Powers of the Senate 458 
 
 194. The " recognition " of foreign governments 461 
 
 195. The power of the Senate to amend treaties 462 
 
 196. Foreign States held to a knowledge of the location of 
 
 treaty-making powers 464 
 
 197. Plenary powers of ratification 465 
 
 CHAPTER XXXIII. 
 
 INTEBNATIONAL AGREEMENTS WHICH Do NOT REQUIRE THE APPROVAL 
 or THE SENATE. 
 
 SECTION 198. International agreements not requiring approval by Senate. 467 
 19*0. International powers of the President as Chief Executive: 
 
 International correspondence 468 
 
 200. Protocols 469 
 
 201. Modi Vivendi 47 1 
 
 202. International agreements entered into by the President 
 
 under his military powers 471 
 
 203. International agreements entered into, or action taken 
 
 by the President, by virtue of authority granted him by 
 congressional statute 472 
 
 204. International agreements entered into, or action taken, by 
 
 the President by virtue of authority granted him by 
 congressional statute 476 
 
 205. Extradition 479 
 
 CHAPTER XXXIV. 
 
 CONGRESSIONAL LEGISLATION FOR THE ENFORCEMENT OF TREATIES. 
 SECTION 206. Treaties cannot appropriate money 480 
 
 207. Congress may by statute abrogate treaties 484 
 
 208. Whether the treaty-making power may modify or repeal 
 
 laws enacted by Congress 485 
 
 209. Treaties and revenue acts 488 
 
 CHAPTER XXXV. 
 
 CONSTITUTIONAL EXTENT OF THE TREATY-MAKING POWER. 
 
 SECTION 210. Treaty -making power granted without express limitations. 403 
 
 211. Implied limitations 493 
 
 212. The treaty-making power and the reserved rights of the 
 
 States 495
 
 TABLE OF CONTENTS. xiii 
 
 PAGE. 
 
 SECTION 213. Judicial dicta that reserved rights of the States may not 
 
 be infringed 497 
 
 214. Instances in which treaties have been upheld though in- 
 
 fringing the reserved rights of the States 499 
 
 215. The true doctrine 502 
 
 21(i. Constitutional limits to the treaty-making power 503 
 
 217. Legislative powers ancillary to treaty-making powers.... 506 
 
 218. The treaty-making power may not "incorporate" foreign 
 
 territory into the United States 507 
 
 219. The treaty-making power may alienate territory of the 
 
 United States or of a State or of States 507 
 
 220. The violation of treaties 513 
 
 221. Treaties remain internationally binding upon the United 
 
 States even when Congress has refused the legislation 
 necessary to put them into full force and effect, or 
 when it has abrogated them by subsequent legislation, 
 or when the Supreme Court has declared them uncon- 
 stitutional 515 
 
 222. The date at which treaties go into effect 517 
 
 223. The denunciation of treaties 518 
 
 224. The construction of treaties 518 
 
 CHAPTER XXXVI. 
 
 THE AMENDMENT OF THE FKDEBAL CONSTITUTION. 
 
 SECTION 225. The amending clause 519 
 
 226. Presidential approval net required 520 
 
 227. Scope of the amending clause 521 
 
 CHAPTER XXXVII. 
 
 CONGRESS : ITS ORGANIZATION : PRIVILEGES OF MEMBERS. 
 
 SECTION 228. The name 524 
 
 229. Qualification for senators and representatives 524 
 
 230. Qualifications determined -by Congress 525 
 
 231. Disqualification of congressmen to hold federal offices.... 528 
 
 232. Ineligibility of congressmen to offices, the emoluments of 
 
 which have been increased 529 
 
 233. Privileges of members of Congress 530 
 
 CHAPTER XXXVIII. 
 
 ELECTION OF MEMBERS OF CONGRESS. 
 
 SECTION 234. Members of the House of Representatives: their appor- 
 tionment among States 533 
 
 235. The mode of apportionment 535 
 
 236. C<iiign-i<i;inal district-* 536 
 
 237. Members of the House of Representatives: by whom 
 
 elected . 537
 
 xiv TABLE OF CONTENTS. 
 
 PAGE, 
 
 SECTION 238. The right to vote for representatives not a necessary in- 
 cident of national citizenship 537 
 
 239. Though determined by state law the right to vote for 
 
 representatives is a federal right 540 
 
 2W. Federal control of congressional elections 543 
 
 241. Enforcement clause of the Fifteenth Amendment 550 
 
 242. Disfranchising clauses of the Southern States 551 
 
 243. The power of the United States to compel the election by 
 
 the States of representatives to Congress, senators and 
 
 presidential electors 555 
 
 244. Election of senators 557 
 
 245. Popular election of senators 559 
 
 246. Vacancies in the Senate 559 
 
 247. Vacancies in the House of Representatives 560 
 
 CHAPTER XXXIX. 
 
 THE PROCESS OF LEGISLATION AS CONSTITUTIONALLY DETERMINED. 
 
 SECTION 248. Constitutional provisions 561 
 
 249. Collusiveness of the records of congressional proceedings. 562 
 
 250. Constitutional force of rules of the House and Senate . . 564 
 
 251. Revenue measures 566 
 
 252. Appropriation acts 507 
 
 253. Presidential participation in law making 567 
 
 254. Resolutions 568 
 
 255. Parts of bills may not be vetoed 568 
 
 256. Riders 569 
 
 257. May bills be signed by the President after the adjourn- 
 
 ment of Congress ? 5ti!) 
 
 258. Signing of bills during recess of Congress 571 
 
 CHAPTER XL. 
 
 THE GENERAL POWERS OF CONGRESS. 
 
 SECTION 259. General powers 573 
 
 CHAPTER XLI. 
 FEDERAL POWERS OF TAXATION. 
 
 SECTION 260. Taxes defined 575 
 
 261. "Taxation and eminent domain 576 
 
 262. The extent of the taxing power 577 
 
 263. The use of the taxing power, not for revenue but for 
 
 regulation 57S 
 
 264. Federal powers of taxation f>S:> 
 
 265. Taxes, duties, imposts, and excises defined 582 
 
 266. Limitations upon the federal taxing power 582 
 
 267. Due process of law and taxation 583 
 
 268. Taxation must be for a public purpose 585
 
 TABLE OF CONTENTS. xv 
 
 PAGE. 
 
 SECTION 269. Power of Congress to appropriate money 588 
 
 270. Equality in taxation 593 
 
 271. Uniformity in taxation 596 
 
 27:2. What constitutes uniformity throughout the United 
 
 States 598 
 
 273. State inheritance taxes 599 
 
 274. Federal inheritance taxes 602 
 
 275. Protective tariffs 607 
 
 276. Bounties 607 
 
 277. Export duties 608 
 
 278. Direct taxes 613 
 
 279. Income tax cases: Pollock v. Farmers' L. & T. Co 616 
 
 280. The federal corporation tax of 1909 61!) 
 
 281. Federal inheritance taxes not direct 620 
 
 282. Federal taxation and due process of law : hearing required. 621 
 
 283. Hearing before administrative tribunal sufficient 622 
 
 284. Summary modes of collection. 624 
 
 2^r>. Notice 625 
 
 286. Borrowing power of the United States: legal tender.... 620 
 
 VOLUME IL . 
 CHAPTER XLII. 
 
 INTERSTATE AND FOREIGN COMMERCE. 
 
 SECTION 287. The Commerce C lause: its importance 629 
 
 288. Purpose of the Commerce Clause 630 
 
 289. Commerce denned: transportation essential 631 
 
 290. The instrumentalities of commerce 631 
 
 291. Commerce embraces water navigation 632 
 
 202. The transportation of persons is commerce 633 
 
 2!>:!. Bills of > exchange not articles of commerce 633 
 
 2;i 1. Insurance not commerce 634 
 
 2!>.-). Lotteries 638 
 
 ^'.'ii. Bearing of the lottery decision on insurance 639 
 
 J'.'T. Commerce does not include the production of the com- 
 modities transported 640 
 
 -'.<<. Intent to export not cmiti llini: 641 
 
 2'.i'.. Interstate commerce includes the sale of the articles im- 
 ported 642 
 
 The original package doctrine 643 
 
 301. Diniculties in applying original pa kage doctrine 645 
 
 302. Summary: fleneral definitions of commerce 650 
 
 303. Kxcluivene>rt of federal control over interstate commerce. 650 
 
 304. Oil) 1> !!- V. OL'den 651 
 
 305. New York v. Miln.. 655
 
 xvi TABLE OF CONTENTS. 
 
 PAGE. 
 
 SECTION 306. License Cases 656 
 
 307. Passenger Cases 658 
 
 308. Cooley v. Port Wardens 658 
 
 309. Subjects of local regulation by the States 660 
 
 310. The police powers of the States and commerce 661 
 
 311. Applications of the doctrine of the police powers of the 
 
 State in their relation to interstate commerce 665 
 
 312. State regulation of interstate trains 665 
 
 313. State inspection laws 670 
 
 314. State quarantine laws 674 
 
 315. Federal quarantine laws 676 
 
 316. State game laws 676 
 
 317. The States may absolutely exclude from their borders only 
 
 such articles as are intrinsically not merchantable or 
 
 not legitimate articles of commerce 678 
 
 318. Liquor legislation 680 
 
 319. The Wilson Act 681 
 
 320. Construction of the Wilson Act 683 
 
 321. Proposed legislation 693 
 
 322. Oleomargarine cases 694 
 
 323. The States and foreign corporations doing an interstate 
 
 commerce business 695 
 
 324. Foreign corporations "doing business" within the States. 698 
 
 325. What constitutes " doing business " in the State 699 
 
 326. State taxation and interstate foreign commerce 699 
 
 327. License taxes 701 
 
 328. Taxation of foreign corporations 702 
 
 329. State tax law must not discriminate against products of 
 
 other States, or against companies doing an interstate 
 
 commerce business 703 
 
 330. Drummers 705 
 
 331. Peddlers 709 
 
 332. State taxation of articles of commerce 711 
 
 333. State taxation of goods in transit 712 
 
 334. State taxation of persons in transit 714 
 
 335. Taxation of property of interstate carriers 714 
 
 336. Assessment of property of interstate carriers for pur- 
 
 poses of taxation . . 716 
 
 337. Vessels: Rolling Stock: unit of use rule 717 
 
 338. State taxation of receipts from interstate commerce 720 
 
 339. Taxation of net receipts 724 
 
 340. Charter provisions 724 
 
 341. Taxation of capital stock of interstate commerce com- 
 
 panies 725 
 
 342. State regulation of carriers 726 
 
 343. State regulation of railway rates 728 
 
 344. Routes running outside of the State but with both ter- 
 
 minals within the State 732
 
 TABLE OF CONTENTS. xvii 
 
 CHAPTER XLJII. 
 
 FEDERAL LEGISLATIVE POWEB OVEB INTERSTATE COMMEBCE. PAGE. 
 
 SECTION 345. Federal legislation 734 
 
 34(5. Federal police regulations 735 
 
 347. Prohibition of interstate commerce 736 
 
 348. Federal regulation of child labor 738 
 
 349. The Federal Employers' Liability Law of 1906 741 
 
 350. Employers' Liability Law of 1908 743 
 
 351. Federal Safety Appliances Acts 744 
 
 352. Federal Eight Hour Law 745 
 
 353. Trade unions and interstate commerce; federal legislation 
 
 with reference to 746 
 
 354. Regulation of interstate railroad rates 748 
 
 355. The right of Congress to delegate its rate-making power 
 
 to a commission 749 
 
 356. The federal anti-trust act 750 
 
 357. In re Greene 751 
 
 358. United States v. E. C. Knight Co 752 
 
 359. United States v. Tran\ -Missouri Freight Association.... 753 
 
 360. United States v. Joint Traffic Association 753 
 
 361. Hopkins v. United States 754 
 
 362. Anderson v. United States 755 
 
 362a. Addyston Pipe & Steel Co. v. United States 755 
 
 363. Montague v. Lowry 756 
 
 3(i4. Northern Securities Case 756 
 
 305. Beef Trust Case , 758 
 
 366. Danbury Hatters Case 759 
 
 367. Other cases 761 
 
 368. The Commodities Clause of the Hepburn Act of 1906 762 
 
 369. Federal control of corporations under the Commerce 
 
 Clause 763 
 
 370. Power of the Federal Government to charter companies 
 
 to do a manufacturing business within the States.... 764 
 
 371. Federal permission to state manufacturing companies to 
 
 engage in interstate commerce 766 
 
 372. Federal taxing power and interstate commerce 767 
 
 373. Federal control of navigable waters 768 
 
 374. Federal control of foreign commerce 769 
 
 375. Commerce with the Territories and with the District of 
 
 Columbia 773 
 
 376. Commerce with the Indians.. 773 
 
 ( IIAI'TKH XLIV. 
 OTHER POWERS OF CONGRESS. 
 
 yatunilizntion. 
 SECTION 377. Naturalization 774 
 
 ii
 
 xviii TABLE OF CONTEXTS. 
 
 Bankruptcy. PAGE. 
 
 SECTION 378. Bankruptcy : Definition of 774 
 
 379. Federal power not exclusive 775 
 
 380. State bankruptcy laws and the obligation of contracts.. 77G 
 
 381. State laws have no extraterritorial force 776 
 
 382. Uniformity 777 
 
 383. Due of process of law 779 
 
 384. State laws suspended but not annulled by Federal Bank- 
 
 ruptcy Law. Effect of the law of 1898 779 
 
 Coinage and Standards of Weights and Measures. 
 
 385. Coinage 780 
 
 386. Weights and measures 781 
 
 Counterfeiting. 
 
 387. Counterfeiting 781 
 
 388. The passing and the uttering of counterfeit coin distinct 
 
 offenses 781 
 
 Postal Service. 
 
 389. Federal power 782 
 
 390. Constitutional views of Munroe 783 
 
 391. Federal power to provide postal agencies 7-1 
 
 392. Exclusion from the mails: freedom of press: searches 
 
 and seizures : Ex parte Jackson 7s I 
 
 393. Ex parte Rapier 788 
 
 394. Power of the States to exclude from their borders objec- 
 
 tionable mail matter 790 
 
 395. States may not maintain postal agencies 790 
 
 396. Fraud orders 791 
 
 397. Protection of the mails: In re Debs 791 
 
 Patents and Copyrights. 
 
 398. Patents 792 
 
 399. Copyrights : trade-marks 793 
 
 Piracies and Felonies on the High Seas and Offenses against the Law 
 
 of Xations. 
 
 400. Piracies, etc 794 
 
 War. 
 
 401. Declaration of war 705 
 
 402. Civil war 7D6 
 
 403. Letters of marque and reprisal and captures on land and 
 
 water 70S 
 
 404. Ot'ier military \> \vers 798
 
 TABLE OF CO.VTKXTS. x:x 
 
 CHAPTER XLV. 
 
 PROHIBITIONS ox COXGRESS. PAGE. 
 
 SECTION 405. Absolute and qualified prohibitions 799 
 
 406. Importation of slaves 800 
 
 407. Suspension of habeas corpus 801 
 
 408. Bills of attainder 801 
 
 409. Ex post facto legislation 803 
 
 410. Appropriations 805 
 
 411. Limitations with respect to the definition and punishment 
 
 of crime 806 
 
 412. Jury trial 800 
 
 413. Jury trial in the District of Columbia and the Terri- 
 
 tories 807 
 
 414. Unanimity 807 
 
 415. Twelve jurors required 808 
 
 416. Courts and actions in which jury is not required 808 
 
 417. Petty offenses 810 
 
 418. Infamous crimes 811 
 
 419. Waiver of constitutional guaranties 813 
 
 420. Right to jury trial not fundamental 815 
 
 421. Speedy trial 815 
 
 422. Public trial 810 
 
 423. Double jeopardy .- 816 
 
 424. What constitutes jeopardy 818 
 
 425. Jeopardy and the right of appeal 820 
 
 426. The constitutionality of appeal by the government in 
 
 criminal cases 822 
 
 427. Self-inorimination: immunity from, not a requirement of 
 
 due process of law , 823 
 
 428. Self-incrimination : what constitutes 825 
 
 429. Right may be waived 825 
 
 430. When right may be claimed 826 
 
 431. To compel testimony statutory immunity must be com- 
 
 plete 826 
 
 432. Corporations not protected against testimony by their 
 
 agents 827 
 
 433. Private books and papers 828 
 
 434. Unreasonable searches and seizures 828 
 
 435. Corporations protected 829 
 
 436. Boyd v. United States 829 
 
 437. Cruel and unusual punishments 830 
 
 438. Treason 833 
 
 439. May bo committed by aliens 834 
 
 440. Domicile not necessary ' 834 
 
 441. No ili>t motion in United States between high and petit 
 
 treason 835 
 
 442. Mi>prision of treason 835 
 
 443. What constitute-; tre;i*nn 835 
 
 444. Enlistment of men does not amount to levying war 836
 
 xx TABLE OF CONTENTS. 
 
 PAGE. 
 
 SECTION 445. Treason against a State of the Union 839 
 
 446. Offenses, other than treason, against the existence and 
 
 operations of the Federal Government 839 
 
 447. Jury trial in civil suits 840 
 
 448. Waiver of jury in civil cases 841 
 
 449. Religious freedom 841 
 
 450. Freedom of speech and press 842 
 
 451. Seditious libel 845 
 
 452. The right peaceably to assemble and petition 845 
 
 453. The right to bear arms 846 
 
 454. The quartering of troops 848 
 
 455. Slavery and involuntary servitude 848 
 
 456. Enforcement clause of the Thirteenth Amendment 848 
 
 457. Involuntary servitude: peonage 850 
 
 458. Seamen 853 
 
 459. Contracts for personal services : enforcement of 854 
 
 CHAPTER XLVI. 
 
 DUE PROCESS OF LAW. 
 
 SECTION 460. Due process of law: definition of 856 
 
 461. Historical inquiry not conclusive 858 
 
 462. Rules of evidence and procedure may be changed 860 
 
 463. Appeal not essential to due process 862 
 
 464. Confronting witnesses 863 
 
 465. Trials in courts of law not essential 863 
 
 466. Unessential statutory formalities 864 
 
 467. Fixed interpretation of laws not guaranteed 864 
 
 468. Due process and substantive rights 865 
 
 469. Per legem terrae 865 
 
 470. Distinction between English and American constitutional 
 
 doctrines 865 
 
 471. Doctrine adopted that due process includes substantive 
 
 rights 868 
 
 472. Erroneous interpretation of the law 868 
 
 473. Life 872 
 
 474. Liberty 872 
 
 475. Equal protection of the law 873 
 
 476. The Federal Government and the obligation of contracts. 874 
 
 CHAPTER XLVII. 
 
 PROHIBITIONS LAID UPON THE STATES. 
 
 SECTION 477. Prohibitions upon the States 877 
 
 478. Bills of credit 878 
 
 479. Ex post facto legislation 881 
 
 480. Equal protection of the law 881 
 
 481. Corporations protected 882
 
 TABLE OF CONTENTS. 
 
 xxi 
 
 PAGE. 
 
 SECTION 482. Illustrative cases arising under the Equal Protection 
 
 Clause 884 
 
 483. Equal protection of the law does not control the grant of 
 
 political rights 886 
 
 484. Classifications 886 
 
 48,3 Classifications m"ust be reasonable 881 
 
 486. State laws and judicial systems not required to be uni- 
 form throughout the State 888 
 
 . 487. Equal protection: requires similar but not the same 
 
 privileges 889 
 
 CHAPTER XLVIII. 
 
 THE OBLIGATION OF COXTBACTS. 
 
 SECTION 488. The Obligation of Contracts Clause. . 891 
 
 489. Changes in means or manner of enforcement of contracts. 892 
 
 490. Contracts may be validated by curing technical defects. 892 
 
 491. Contracts by the State not to tax. .' 892 
 
 492. Contracts to which a State is a party 893 
 
 493. What constitutes a contract 893 
 
 494. Foreign corporations: permission to do business within 
 
 the State 894 
 
 495. Charters of public corporations , 895 
 
 496. Contracts by municipal corporations , 896 
 
 4H7. Charters of private corporations are contracts: The Dart- 
 mouth College Case 897 
 
 4!)8. Charter giant? strictly construed 898 
 
 4 ( .!i. diaries River Bridge Co. v. Warren Bridge Co 899 
 
 500. Other cases 900 
 
 501. llegiilation of charges of public service corporations.... 901 
 5(i2. The police power and the obligation of contracts 902 
 
 503. Tax exemptions 905 
 
 504. Impairment of contracts by taxation 907 
 
 505. Instances of incapacity of the States to contract 908 
 
 506. Regulation of rates 909 
 
 .">n7. Kminent domain and the obligation of contracts 910 
 
 5tiS. The construction of contracts 911 
 
 f>u!i. K\i>tem-c of a contract a federal question 912 
 
 510. Constitutionality of state laws alleged to impair con- 
 
 tract s a federal question 913 
 
 511. Decisions of state courts: how far controlling in federal 
 
 courts 914 
 
 512. Doctrine in cases reaching the Supreme Court by writs of 
 
 en r to state courts 916 
 
 513. MeCullough v. Virginia 917 
 
 514. Miihlkpr v. \. V. & II. Ry. Co 918 
 
 515. Refu-al of federal courts to follow state decisions holding 
 
 state laws void 920
 
 xxii TABLE OF CONTENTS. 
 
 PAGE. 
 
 SECTION 516. Distinction between cases coming to the Supreme Court 
 by writs of error to state courts, and those originating 
 
 in lower federal courts 921 
 
 517. Cases based on diversity of citizenship 921 
 
 518. Gelpcke v. Dubuque 922 
 
 519. Extension of the doctrine of Gelpftke v. Dubuque 925 
 
 520. Great Southern Fireproof Hotel Co. v. Jones 925 
 
 CHAPTER XLIX. 
 
 CONSTITUTIONAL LIMITATIONS UPON THE TAXING POWERS OF THE STATES. 
 
 SECTION 521. Constitutional provisions 927 
 
 522. Special assessments 928 
 
 523. Taxes and special assessments distinguished 929 
 
 524. Constitutional requirements of special assessments 930 
 
 525. Resort to special assessments discretionary with the legis- 
 
 lature 931 
 
 526. Special assessments in excess of benefits 933 
 
 527. Doctrine of Norwood v. Baker 933 
 
 528. Norwood v. Baker explained and limited by later cases. 936 
 
 529. Summary 943 
 
 530. Property taxed must be within the jurisdiction of the 
 
 State 943 
 
 531. Personal liability of property-owners 944 
 
 532. Incorporeal hereditaments. Franchises, etc 945 
 
 533. Taxation of tangible personal property 946 
 
 534. Taxation of property situated in several jurisdictions. . . . 949 
 
 535. The unit rule 950 
 
 536. Adams Express Co. v. Ohio 951 
 
 537. Taxation of capital stock companies operating in two or 
 
 more States 954 
 
 538. Taxation of movables 954 
 
 539. Taxation of intangible personal property 955 
 
 540. Doctrine of state tax on Foreign Held Bonds Case 955 
 
 541. Taxation of shares of stock 957 
 
 542. Taxation of mortgages 960 
 
 543. The taxation of credits 961 
 
 544. Taxation of franchises 966 
 
 545. Taxation of good will 969 
 
 546. Tax exemptions and the impairment of contracts 968 
 
 547. Double taxation 968 
 
 CHAPTER L. 
 
 THE FKDERYL JUDICIARY. ITS OBGANIZATION. 
 
 SECTION 548. Constitutional provisions 970 
 
 549. Inferior federal courts 971 
 
 550. The Supreme Court : its organization 971
 
 TABLE OF CONTENTS. xxiii 
 
 PAGE. 
 
 SECTION 551. Circuit courts of appeal: organization 972 
 
 552. Circuit courts : organization 972 
 
 553. District courts : organization 972 
 
 554. Court of claims : organization 973 
 
 555. Judiciary of the District of Columbia 973 
 
 550. The Supreme Court: original jurisdiction 973 
 
 5o7. Inferior courts may be granted jurisdiction of cases within 
 
 the original jurisdiction of the Supreme Court 974 
 
 558. The Supreme Court: appellate jurisdiction 975 
 
 559. Appeals from circuit and district courts 976 
 
 560. Appeals from circuit courts of appeal 977 
 
 561. Appeals from territorial and other courts 978 
 
 562. Writs of error to state courts . 978 
 
 563. Circuit courts of appeal : jurisdiction 980 
 
 564. Circuit courts : jurisdiction 980 
 
 565. District courts : jurisdiction 981 
 
 566. Court of claims: jurisdiction 982 
 
 567. Jurisdiction of federal courts based on diversity of citizen- 
 
 ship 984 
 
 568. Citizenship of corporations 984 
 
 569. National banks 986 
 
 570. Federally chartered corporations 986 
 
 571. Fictitious citizenship 987 
 
 572. Federal jurisdiction of cases arising under the Constitu- 
 
 tion, treaties, and acts of Congress 987 
 
 573. Removal of suits from state to federal courts 989 
 
 574. Concurrent state judicial powers 990 
 
 575. Statutory provision for removal from state to federal 
 
 courts 994 
 
 576. Congress may not confer jurisdiction upon state courts.. 997 
 
 CHAPTER LI. 
 
 POLITICAL QUESTIONS. 
 
 SECTION 577. Political questions 999 
 
 578. Cherokee Nation v. (Georgia 1000 
 
 579. Georgia v. Stanton 1001 
 
 580. Kxisteiice and territorial extent of sovereignty 1003 
 
 581. War : belligerency : neutrality 1005 
 
 582. Treaties 1007 
 
 .">-::. Diplomatic agents 1007 
 
 584. Other political questions 1008 
 
 585. Suits between the States 1009 
 
 586. Courts will assume jurisdiction when private rights in- 
 
 volved 1009 
 
 587. Courts will not perform non- judicial functions 1011 

 
 TABLE OF CONTENTS. 
 
 CHAPTER LJI. 
 
 THE LAW ADMINISTERED BY THE FEDEBAL COURTS. PAGE. 
 
 SECTION 588. Federal courts and international law 1013 
 
 589. Federal criminal law 1019 
 
 590. Federal courts and the construction of state law 1020 
 
 591. Force of state interpretations 1022 
 
 592. Rule not one of constitutional necessity : exceptions 1024 
 
 593. Equity 1024 
 
 594. Rules of evidence 1020 
 
 595. Unsettled construction of state law 1028 
 
 596. Obligation of contracts and the construction of state law. 1030 
 
 597. Federal courts and the common law 1030 
 
 598. Interstate commerce and the common law 1032 
 
 599. General principles of the common law as distinguished 
 
 from their special and local applications 1033 
 
 600. General commercial law : Swift v. Tyson 1034 
 
 CHAPTER LIII. 
 
 SUITS BETWEEN STATES AND TO WHICH A STATE OB THE UNITED STATES 
 
 is A PABTY PLAINTIFF. 
 
 SECTION 601. Constitutional provisions 1040 
 
 602. Boundary disputes 1041 
 
 603. Maladministration of laws of a State to injury of citizens 
 
 of another State not justiciable in a suit between the 
 
 States 1044 
 
 604. State as pnrens patrice: Missouri v. Illinois 1046 
 
 605. Irrigation rights: Kansas v. Colorado 1048 
 
 606. Justiciable quasi-sovereign rights of the States 1053 
 
 607. New Hampshire v. Louisiana and South Dakota v. North 
 
 Carolina 1054 
 
 608. Suits of States against individuals 1054 
 
 609. Suits between the United States and a State of the Union. 1057 
 
 610. Suits between a State and foreign States or their citizens. 1059 
 
 CHAPTER LIV. 
 
 THE SUABILITY OF STATES. 
 
 SECTION 611. A sovereign State may not be sued without its consent.. 1061 
 
 612. Chisholm v. Georgia 1063 
 
 613. The Eleventh Amendment 1064 
 
 614. South Dakota v. North Carolina 1066 
 
 615. The Eleventh Amendment does not apply to suits insti- 
 
 tuted by a State: Cohens v. Virginia 1070 
 
 616. Corporations chartered by, and of which the State is 
 
 a stockholder, may be sued 1073
 
 TABLE OF CONTENTS. xxv 
 
 PAGE. 
 
 SECTION' 617. Effect of Eleventh Amendment upon federal constitutional 
 
 rights guaranteed against state violation 1073 
 
 618. Suits against state officers: when considered suits against 
 
 the State 1074 
 
 619. United States v. Peters 1075 
 
 620. United States v. Bank of the United States 1076 
 
 621. Rule as to States being parties of record 1078 
 
 622. Mandamus to state officials 1079 
 
 623. The Virginia debt controversy 1084 
 
 624. In re Ayres 1089 
 
 625. Reagan v. Trust Co 1091 
 
 626. Fitts v. McGhee 1092 
 
 627. In re Young 1093 
 
 628. Suits to recover specific pieces of property held by the 
 
 State 1096 
 
 629. Set-offs against the State 1096 
 
 630. Liens 1097 
 
 631. The Arlington Case: United States v. Lee 1098 
 
 632. The doctrine of United States v. Lee applied to a State. . 1100 
 
 633. Suit maintainable only where the action against the 
 
 officer is a possessory one 1101 
 
 634. Recent cases 1 102 
 
 635. Suability of minor political bodies 1104 
 
 636. Statutory consent of the United States and of the States 
 
 to be sued 1105 
 
 CHAPTER LV. 
 
 ADMIRALTY AND MARITIME JURISDICTION. 
 SECTION 637. Admiralty and maritime jurisdiction defined 1107 
 
 638. Extent of admiralty jurisdiction 1108 
 
 639. Admiralty jurisdiction extends to navigable waters wholly 
 
 within a State 1110 
 
 640. Extent of federal admiraltj' jurisdiction 1111 
 
 641. Canals 1112 
 
 042. Repairs on land and in dry dock 1112 
 
 643. Admiralty jurisdiction does not carry with it general 
 
 jurisdiction over navigable waters 1113 
 
 644. Admiralty courts 1113 
 
 645. State legislative powers with reference to admiralty 
 
 matters 1114 
 
 646. Legislative powers of Congress flowing from admiralty 
 
 and maritime jurisdiction 1117 
 
 647. The determination of the sphere of admiralty jurisdiction 
 
 a judicial question 1118
 
 xxvi TABLE OF 
 
 > 
 
 CHAPTER LVI. 
 
 IMPEACHMENT. PAGE. 
 
 SECTION 648. Constitutional provisions 1121 
 
 649. Persons subject to impeachment 1121 
 
 650. Who are civil officers , 1 122 
 
 651. When may a civil officer be impeached 1122 
 
 652. For what offenses impeachment will lie 1123 
 
 653. Punishment 1124 
 
 654. Effect of dissolution of Congress 1124 
 
 CHAPTER LVII. 
 THE ELECTION OF THE PRESIDENT AND VICE PBESIDENT. 
 
 SECTION 655. The executive department 1125 
 
 656. Apportionment of presidential electors: plenary powers of 
 
 the States 1125. 
 
 657. Vacancies 1127 
 
 658. Original provisions of Constitution as to election of 
 
 President and Vice President: Inadequacy of 1128 
 
 659. Twelfth Amendment 1 129 
 
 660. Counting the votes 1130 
 
 661. Law of 1887 1131 
 
 662. Constitutionality of 1132 
 
 663. Criticism of the act of 1887 1135 
 
 CHAPTER LVIH. 
 
 PRESIDENTIAL SUCCESSION. 
 
 SECTION 664. Constitutional provisions 1141 
 
 665. Act of 1792 1141 
 
 666. Act of 1886 1144 
 
 667. Questions undetermined by 1 145 
 
 668. Third term 1147 
 
 CHAPTER LIX. 
 
 THE POWERS AND DUTIES OF THE PRESIDENT. 
 
 SECTION 669. The oath of office 1150 
 
 670. Constitutional powers of the President as Chief Executive. 1150 
 
 671 . The Xoagle Case 1152 
 
 672. The President as administrative chief 1156 
 
 673. Original intent that the President should be primarily 
 
 a political chief: congressional control of administra- 
 tion 1 156 
 
 674. Development of the administrative powers of the President. 1158 
 
 675. President arts through tin 1 heads of departments 1159 
 
 676. Except where his persona? judgment is demanded 1160 
 
 677. Administrative appeals 1161
 
 TABLE OF CONTEXTS. xxvii 
 
 PAGE. 
 
 SECTION 678. Administrative decentralization in the States 1163 
 
 679. Increasing integration of federal administration 1163 
 
 680. Administrative interpretations 1164 
 
 081. Administrative regulations 1164 
 
 682. Power of the President to control the institution and 
 
 prosecution of suits hy the Department of Justice.... 1166 
 
 683. Information to Congress 1167 
 
 684. The President's control of foreign relations 1170 
 
 685. The veto power of the President 1170 
 
 686. The President's pardoning power 1170 
 
 687. The pardoning power may not be limited by Congress.. 1171 
 
 688. Acts of amnesty and remission of penalties 1172 
 
 689. Suspension of sentences 1173 
 
 CHAPTER LX. 
 
 THE APPOINTMENT AND REMOVAL OF OFFICERS. 
 
 SECTION 690. Constitutional provisions 1174 
 
 691. "Officer" of the United States defined 1174 
 
 692. Inferior officers 1175 
 
 693. Nominations 1176 
 
 694. Creation of offices 1178 
 
 695. Appointing powers of Congress 1178 
 
 696. Appointing powers may be vested only as provided by 
 
 the Constitution 1 180 
 
 697. Civil service requirements 1180 
 
 698. The power of removal 1181 
 
 69!). Congress may regulate the removal of inferior officers.. 1185 
 
 700. Injunctions to prevent removal 1185 
 
 701. Mandamus to reinstate in office 1186 
 
 702. The powers of removal by state governors 1187 
 
 CHAPTER LXI. 
 
 MILITARY LAW. 
 
 SECTIOX 703. Military powers of the general government 1190 
 
 704. Military law: with reference to members of the army and 
 
 navy 1191 
 
 70.-). Articles of war < 1192 
 
 706. Obligation assumed by enlistment 1193 
 
 707. Powers <if the military commander 1196 
 
 708. Courts martial 1197 
 
 709. Powers of courts martial: jurisdiction of civil courts to 
 
 review proceedings of 1198 
 
 710. Jurisdiction of court-, martial over offenses which are also 
 
 violations of the local civil law.. 1200
 
 xxviii TABLE OF CONTEXTS. 
 
 PAGE. 
 
 SECTION 711. The power of Congress o vest in military tribunals ex- 
 clusive jurisdiction over all offenses committed by 
 military persons, including offenses which are also 
 
 crimes against the civil law 1203 
 
 712. Powers of military tribunals in times of war 120(5 
 
 713. Powers of the Commander in Chief of the army and navy.. 1207 
 
 714. Declaration of war 1208 
 
 715. The prosecution of war 1212 
 
 716. The organization and disciplining of the militia 1213 
 
 717. The militia as an arm of the Federal Government 1214 
 
 718. The use of the militia and federal troops to suppress 
 
 domestic disorder 1215 
 
 719. Military government 1217 
 
 720. Military government and foreign territory 1217 
 
 721. Military government of hostile domestic territory 1219 
 
 722. Military government of domestic territory in times of 
 
 peace 1221 
 
 CHAPTER LXII. 
 MARTIAL LAW.' 
 
 SECTION 723. Martial law defined 1228 
 
 724. Martial law a form of the police power 1229 
 
 725. Police power defined 1231 
 
 726. Police power limited 1232 
 
 727. Martial law does not abrogate civil law and civil guar- 
 
 antees 1234 
 
 728. Martial law and military government distinguished 1236 
 
 729. Luther v. Borden 1236 
 
 730. Martial rule and war distinguished 1238 
 
 731. Powers of military commander in cases of domestic dis- 
 
 order 1240 
 
 732. Martial law in time of war 1241 
 
 733. Exercise of military authority outside the immediate 
 
 theatre of war: Ex parte Milligan 1244 
 
 734. Criticism -. 1251 
 
 735. Mitchell v. Clark considered 1252 
 
 736. Habeas corpus 1253 
 
 737. Suspension of the writ 1254 
 
 738. Power of the President to suspend the writ.... 1255 
 
 CHAPTER LXIII. 
 THE SEPARATION OF POWERS. 
 
 SECTION 739. The separation of powers 1259 
 
 740. Separation of powers in the State not compelled by the 
 
 federal Constitution 1260
 
 TABLE OF CONTENTS. xxix 
 
 PAGE. 
 
 SECTION 741. Powers separated in the Federal Government 1261 
 
 742. Separation not complete. 1262 
 
 743. The general principle stated 1263 
 
 744. Distinction between legislative and judicial acts 1264 
 
 745. Declaratory and retroactive legislation 1265 
 
 746. Legislative control of judicial procedure and powers.... 1267 
 
 747. Jurisdiction and judicial power distinguished 1268 
 
 748. Powers of courts to punish contempts 1270 
 
 749. Pardoning power of the President and contempts 1270 
 
 750. Power of Congress to punish for contempts 1272 
 
 751. The performance of administrative acts by the courts.. 1274 
 
 752. Judicial review of administraeive determinations 1276 
 
 753. Judicial powers of administrative agents 1277 
 
 CHAPTER LXIV. 
 CONCI.USIVENESS OF ADMINISTRATIVE DETERMINATIONS. 
 
 SECTION 754. Due process of law does not demand determination of 
 
 rights in courts of law 1278 
 
 755. Fraud orders 1283 
 
 756. Chinese Exclusion Cases 1286 
 
 757. The Ju Toy Case 1289 
 
 758. Constitutional requirements of administrative determina- 
 
 tions 1291 
 
 759. Arbitrary administrative discretion 1293 
 
 760. Mandamus 1296 
 
 761. Ministerial acts: Marbury v. Madison 1297 
 
 762. Mandamus may not be used in place of an appeal 1298 
 
 763. Amenability of the President to compulsory judicial 
 
 process 1300 
 
 764. Mississippi v. Johnson 1301 
 
 765. Georgia v. Stanton 1304 
 
 766. Head of executive department acting for the President: 
 
 when amenable to writ 1304 
 
 767. Obligation of the President to enforce laws believed by 
 
 him to be unconstitutional 1306 
 
 768. Liability of the State forgets of its officers 1309 
 
 769. Legal liability of public < ilicials to private individuals 
 
 injured by their act-, ultra rircs acts 1310 
 
 770. Mandamus to compel performance of commands by ad- 
 
 ministrative superior 131 1 
 
 771. Responsibility of officers for improper exercise of author- 
 
 ity : malice, etc 1312 
 
 772. Responsibility of judges of courts of superior and general 
 
 jurisdiction - 1315
 
 xxx TABLE OF CONTENTS. 
 
 CHAPTER LXV. 
 
 THE DELEGATION OF LEGISLATIVE POWEB. PAGE. 
 
 SECTION 773. Delegated power may not be delegated 1317 
 
 774. Local governing powers may not be delegated 1317 
 
 775. Power to issue administrative ordinances may be delegated. 1318 
 
 776. Field v. Clark 1310 
 
 777. Other illustrative Cases 1321 
 
 778. Delegation of rate-making powers 132$ 
 
 779. The referendum as a delegation of legislative power 1324 
 
 780. Administrative ordinances 1325 
 
 781. Penal ordinances 1321
 
 TABLE OF CASES. 
 
 A. PAGE. 
 
 Ableman v. Booth, 21 Ho^v. 506; 16 L. ed. 169 84, 123, 130, 141, 1200 
 
 Adair v. United States, 208 U. S. 161; 28 Sup. Ct. Rep. 277; 52 L. ed. 
 
 436 743, 747 
 
 Adams v. Xew York, 192 U. S. 585; 24 Sup. Ct. Rep. 372; 48 L. ed. 
 
 575 828, 8GO 
 
 Adams Express Co. v. Iowa, 196 U. S. 147; 25 Sup. Ct. Rep. 185; 49 
 
 L. ed. 424 686, 708 
 
 Adams Express Co. v. Ohio State Auditor, 165 U. S. 194; 17 Sup. Ct. 
 
 Rep. 305 ; 41 L. ed. 083 718, 950, 951 
 
 Adajns Express Co. v. Ohio State Auditor, 166 U. S. 185; 17 Sup. Ct. 
 
 Rep. 604; 41 L. ed. 965 952, 967 
 
 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; 20 Sup. Ct. 
 
 Rep. 96; 44 L. ed. 136 630, 755 
 
 Ah Chong, In re, 6 Sawyer, 451 502 
 
 Alabama v. Burr, 11* U. S. 413; 6 Sup. Ct. Rep. 81; 29 L. ed, 435 1056 
 
 Alabama v. Georgia, 23 How. 505; 16 L. ed. 556 1043 
 
 Aidridge v. Williams, 3 How. 9 ; 11 L. ed. 469 35 
 
 Allen v. B. & O. R. R. Co., 114 U. S. 311; 5 Sup. Ct. Rep. 925: 29 L. ed. 
 
 200 1081, 1083, 1092 
 
 v. Riley. 203 U. S. 347: 27 Sup. Ct. Rep. 95; 51 L. ed. 216. . . .100, 793 
 Allegeyer v. Louisiana, 165 U. S. 578; 17 Sup. Ct. Rep. 427; 41 L. ed. 
 
 832 x . 872 
 
 Almy v. California. 24 How. 169 : 16 L. ed. 644 608 
 
 Ambrosini v. United States, 187 U. S. 1 ; 23 Sup. Ct. Rep. 1 ; 47 L. ed. 
 
 49 114 
 
 American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242 273, 335, 339 
 
 352, 359. 365, 369, 370, 408 
 American Publishing Co. v. Fisher, 166 U. S. 464; 17 Sup'. Ct. Rep. 618; 
 
 41 L. ed. 1079 408, 409 
 
 American Refrigerator Transit Co. v. Hall, 174 U. S. 70; 19 Sup. Ct. 
 
 Rep. 5l>!i : 43 L. eel. 890 717, 72CV 
 
 American School of Magnetic Healing v. McAnnulty, 187 U. S. 94; 23 
 
 Sitr.. ( t. Rep. 33 : 47 L. ed. 90 1285, 1296 
 
 Am. rican Steel Wire Co. v. Speed, 192 U. S. 500; 24 Sup. Ct. Rep. 365; 
 
 4S L. ed. 538 713 
 
 American Suirar Refining Co. v. Louisiana. 179 T*. S. 89; 21 Sup. Ct. 
 
 Rep. 43 : 45 L. ed. 102 596 
 
 AnM-s v. Kansas. Ill U. S. 449: 4 Sup. Ct. Rep. 437; 28 L. ed. 482.. 975 
 
 Ameshury Xail Factors' Co. v. W.vd. 17 Mass. 53 931 
 
 Amni'.n-. Ex part.-. :U O!,i-> St. 5IS -->> 
 
 v. Smith. 1 Litt. (Ky. i 32H 
 
 Anderson v. Baker. -23 Ind. 531 26!) 
 
 Anderson v. Dunn. 6 Wh. 204 : 5 L. ed. 242 527. 1272 
 
 [mi]
 
 xxxii TABLE OF CASES. 
 
 PAGE. 
 Anderson v. United States, 171 U. S. 604; 19 Sup. Ct. Rep. 50; 43 L. 
 
 ed. 300 755 
 
 Andrews v. Andrews, 188 U. S. 14; 23 Sup. Ct. Rep. 237; 47 L. ed. 366 206 
 
 Andrews v. Swartz, 156 U. S. 272; 15 Sup. Ct. Rep. 389; 39 L. ed. 422 862 
 Anglo-American Provision Co. v. Davis Provision Co., 191 U. S. 373; 24 
 
 Sup. Ct. Rep. 92 ; 48 L. ed. 225 203 
 
 Anthony v. Holderman, 7 Kans. 50 259, 260 
 
 Antoni v. Greenhow, 107 U. S. 769; 2 Sup. Ct. Rep. 91; 27 L. ed. 
 
 468 1082, 1084 
 
 Appleyard v. Massachusetts, 203 U. S. 222; 27 Sup. Ct. Rep. 122; 51 
 
 L. ed. 161 233 
 
 Arbegust v. Louisville, 2 Bush, 271 597 
 
 Arlington Case, The, 106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171. 1080 
 
 Armtage v. Attorney-General, 22 T. L. R. 306 206 
 
 Arnson v. Murphy, 109 U. S. 238; 3 Sup. Ct. Rep. 184; 27 L. ed. 920. . 623 
 
 Arthur v. Oakes, 63 Fed. Rep. 310 855 
 
 Asbell v. Kansas, 209 U. S. 251; 28 Sup. Ct. Rep. 485; 52 L. ed. 778. . 674 
 
 Asher v. Texas, 128 U. S. 129; 9 Sup. Ct. Rep. 1 ; 32 L. ed. 368 705 
 
 Ashley v. Ryan, 153 U. S. 436; 14 Sup. Ct. Rep. 865; 38 L. ed. 773. . 72.1 
 Atchison, etc., R. Co. v. Sowers, 213 U. S. 366; 29 Sup. Ct. Rep. 397; 53 
 
 L. ed. 695.... 201 
 
 Atherton v. Atherton, 181 U. S. 155; 21 Sup. Ct. Rep. 544; 45 L. ed. 
 
 794 205, 207 
 
 Atlantic C. L. R. Co. v. North Carolina Corp. Com., 206 U. S. 1 ; 27 
 
 ^ Sup. Ct. Rep. 585 ; 51 L. ed. 933 1323 
 
 Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160; 23 Sup. Ct. 
 
 Rep. 817 ; 47 L. ed. 995 72.5 
 
 Atlantic Coast Line Ry. Co. v. Wharton, 207 U. S. 328; 28 Sup. Ct. 
 
 Rep. 121 ; 52 L. ed. 230 668 
 
 Auffmordt v. Hedden, 137 U. S. 310; 11 Sup. Ct. Rep. 103; 34 L. ed. 
 
 674 623 
 
 Austin v. Tennessee, 179 U. S. 343; 21 Sup. Ct. Rep. 132; 45 L. ed. 224 647 
 
 Ayers, In re, 123 U. S. 443; 8 Sup. Ct. Rep. 164; 31 L. ed. 216. . . .977, 1070 
 
 1082, 1090 
 
 B. 
 
 B. & O. R. R. Co. v. Baugh, 149 U. S. 368; 13 Sup. Ct. Rep. 914; 37 L. 
 
 ed. 772 1023 
 
 B. & S. R. R. v. Nesbit, 10 How. 395; 13 L. ed. 469 * . . . 891 
 
 Bacon v. Hooker, 177 Mass. 333 965 
 
 Bacon v. Howard, 20 How. 22 ; 15 L. ed. 811 199 
 
 Bacon v. Texas, 163 U. S. 207; 16 Sup. Ct. Rep. 1023; 41 L. ed. 132.. 916 
 
 Bain's Case, 121 U. S. 1 : 7 Sup. Ct. Rep. 781 ; 30 L. ed. 849 977 
 
 Baiz, Ex parte, 135 U. S. 403; 10 Sup. Ct. Rep. 854: 34 L. ed. 222 1007 
 
 Baker v. Grice, 169 U. S. 284; 18 Sup. Ct. Rep. 323: 42 L. ed. 748.... 130 
 
 Baker v. Portland, 5 Sawyer, 566 502 
 
 Bamberger v. Terry, 103 U. S. 40 ; 26 L. ed. 317 841 
 
 Bank v. Cooper, 2 Yerg. 599 624 
 
 Bank v. Supervisors. 7 Wall. 26 ; 19 L. ed. 60 104
 
 TABLE OF CASES. xxxiii 
 
 PAGE. 
 
 Bank of Commerce v. Commissioners, 2 Black, 620; 17 L. ed. 451.. 104, 105 
 Bank of Commerce v. Tennessee, 101 U. S. 134; 16 Sup. Ct. Rep. 456; 
 
 40 L. ed. 645 906 
 
 Bank of Kentucky v. Adams Express Co., 93 U. S. 174; 23 L. ed. 872.. 727 
 
 Bank of Kentucky v. Com., 4 Bush, 48 107 
 
 Bank of Kentucky v. Wister, 2 Pet. 318;^ 7 L. ed. 437 1073 
 
 Bank Tax Case, 2 Wall. 200 ; 17 L. ed. 793 104, 105 
 
 Bank of the United States v. The Planters' Bank of Georgia, 9 Wh. 904; 
 
 6 L. ed. 244 880, 1073 
 
 Bank of United States v. Deveaux, 5 Cr. 61 ; 3 L. ed. 38 985 
 
 Bank of Vicksburg v. Slocomb, 14 Pet. 60; 10 L. ed. 354 985 
 
 Banks v. The Mayor, 7 Wall. 16 ; 19 L. ed. 57 104 
 
 Barbier v. Connolly, 113 U. S. 27; 5 Sup. Ct. Rep. 357; 28 L. ed. 923.. 882 
 
 888 
 
 Barney v. Baltimore City, 6 Wall. 280; 18 L. ed. 825 273 
 
 Barron v. Baltimore, 7 Pet. 243 ; 8 L. ed. 672 70, 877 
 
 Barren v. Burnside, 121 U. S. 186; 7 Sup. Ct. Rep. 931; 30 L. ed. 915 147 
 Barrow SS. Co. v. Kane, 170 U. S. 100; 18 Sup. Ct. Rep. 526; 42 L. ed. 
 
 964 ' 149 
 
 Bartlett v. Kane, 16 How. 263 ; 14 L. ed. 931 63 
 
 Barto v. Himrod, 4 Seld. 483 154 
 
 Bates v. Clark, 95 U. S. 204 ; 24 L. ed. 471 302 
 
 Bates & Guild Co. v. Payne, 194 U. S. 106; 24 Sup. Ct. Rep. 595; 48 
 
 L. ed. 894 1284, 1299 
 
 Bauman v. Ross, 167 U. S. 548; 17 Sup. Ct. Rep. 966; 42 L. ed. 270. .. 928 
 
 931, 933, 942 
 
 Beard v. Federy, 3 Wall. 478 ; 18 L. ed. 88 1282 
 
 Beef Trust Case, 196 U. S. 375; 25 Sup. Ct. Rep. 276; 49 L. ed. 518 75* 
 
 Bein v. Heath, 12 How. 168 ; 13 L. ed. 939 1025, 1026 
 
 Belfast. The. 7 Wall. 624; 19 L. ed. 266 1111 
 
 Belknap v. Schild, 161 U. S. 10; 16 Sup. Ct. Rep. 443; 40 L. ed. 599.. 1102 
 
 Bell v. Bell, 181 U. S. 175 ; 21 Sup. Ct. Rep. 551 ; 45 L. ed. 804 206 
 
 Bell's Gap Railroad Co. v. Pennsylvania, 134 U. S. 232; 10 Sup. Ct. 
 
 Rep. 533 ; 33 L. ed. 892 595, 625, 888 
 
 Benner v. Porter. 9 How. 235 ; 13 L. ed. 119 369 
 
 Benson v. McMahon, 127 V. S. 457; 8 Sup. Ct. Rep. 1240; 32 L. ed. 234 1238 
 Bergemann v. Baeker, 157 U. S. 655; 15 Sup. Ct. Rep. 727; 39 L. ed. 
 
 845 868 
 
 Bertram v. Robertson, 122 U. S. 116; 7 Sup. Ct. Rep. 1115; 30 L. ed. 
 
 1118 492 
 
 Billings v. Illinois, 188 U. S. 97; 23 Sup. Ct. Rep. 272; 47 L. ed. 400. . 600 
 
 Billings v. State, 189 111. 472 599 
 
 Bins v. United States. 194 U. S. 486; 24 Sup Ct. Rep. 816; 48 L. ed. 1087 439 
 
 Black v. State, 113 Wis. 205 599 
 
 Black-stone v. Miller, 188 U. S. 189; 23 Sup. Ct. Rep. 277; 47 L. ed. 
 
 439 9(54, 969 
 
 Blake v. McClung, 172 U. S. 239; 19 Sup. Ct. Rep. 165; 43 L. ed. 432 215, 
 
 219 
 
 Blake v. MoClung, 17G U. S. fl4 ; 20 Sup. Ct. Rep. 307; 44 L. ed. 371.. 221 
 
 iii
 
 xxxiv TABLE OF CASES. 
 
 PAGE. 
 
 Blanck v. Pausch, 113 111. 60 2.V.) 
 
 Board of Liquidation v. McComb, 92 U. S. 531; 23 L. ed. 623.1077, 1080, 1001 
 
 Bodley v. Gaither, 3 Monr. 57 12 
 
 Bollman, Ex parte, 4 Cr. 75 ; 2 L. ed. 554 836, 1031, 1255 
 
 Boln v. Nebraska, 176 U. S. 83; 20 Sup. Ct. Rep. 287; 44 L. ed. 382 241 
 
 Bonaparte v. Tax Court, 104 U. S. 592 ; 26 L. ed. 845 204 
 
 Bonham'a Case, 8 Coke, 115, 118a 867 
 
 Boom v. Patterson, 98 U. S. 403 ; 25 L. ed. 206 455 
 
 Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465; 8 Sup. Ct. 
 
 Rep. 689 ; 31 L. ed. 700 , 643, 645, 659, 661, 678, 680 
 
 Bowman v. Middletown, 1 Bay, 252 42 
 
 Boyd v. Alabama, 94 U. S. 645 ; 24 L. ed. 302 916 
 
 Boyd v. Nebraska, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103. . 169 
 
 273, 284 
 
 Boyd v. Thayer, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103 444 
 
 Boyd v. United States, 116 U. S. 66 ; 6 Sup. Ct. Rep. 524; 29 L. ed. 
 
 746 29, 828, 829 
 
 Boyer, Ex parte, 109 U. S. 629; 3 Sup. Ct. Rep. 434; 27 L. ed. 1056.. 1112 
 
 Boyle v. Zacharie, 6 Pet, 635 ; 8 L. ed. 527 1024 
 
 Boynton v. Elaine, 139 U. S. 306; 11 Sup. Ct. Rep. 607; 35 L. ed. 183. . 1280 
 
 Bowlin v. Commonwealth, 2 Bush, 5 1027 
 
 Braceville Coal Co. v. People, 147 111. 66 873 
 
 Bradley v. Fisher, 13 Wall. 335; 20 L. ed. 646 1315 
 
 Bradwell v. Illinois, 16 Wall. 130 ; 21 L. ed. 442 886 
 
 Brennan v. Titusville, 153 U. S. 289; 14 Sup. Ct. Rep. 829; 38 L. ed. 
 
 719 705, 700 
 
 Brimmer v. Recman, 138 U. S. 78; 11 Sup. Ct. Rep. 213; 34 L. ed. 
 
 862 , 673, 689 
 
 Brine v. Hartford Fire Ins. Co., 90 U. S. 627; 24 L. ed. '858 in-'i) 
 
 Briscoe v. Bank of Kentucky, 11 Pet. 257; 9 L. ed. 709 83, 111, 879, 1073 
 
 Bristol v. Washington Co., 177 U. S. 133; 20 Sup. Ct. Rep. 585; 44 L. 
 
 ed. 701 963 
 
 Broadhead v. City of Milwaukee, 19 Wis. 624 585 
 
 Bronson v. Kinzie et al.. 1 How. 311; 11 L. ed. 143 891, 892 
 
 Brooklyn City, etc., Ry. Co. v. National Bank, 102 U. S. 14; 26 L. ed. 
 
 61 1037 
 
 Brown v. Houston, 114 U. S. 622; 5 Sup. Ct. Rep. 1091; 29 L. ed. 
 
 257 76, 661, 712, 734, 769, 770, 947 
 
 Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678. . .608, 618, 634, 642, 644, 653 
 
 701, 71L 768 
 
 Brown v. New Jersey, 175 U. S. 172: 20 Sup. Ct. Rep. 77; 44 L. ed. 119 860 
 
 Brown v. Smart, 145 U. S. 454; 12 Sup. Ct. Rep. 958; 36 L. ed. 773. ... 777 
 
 Brown v. United States, 8 Cr. 110 : 3 L. ed. 504 798, 1211, 1221 
 
 Brown v. Walker, 161 U. S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 
 
 819 825, 826, 827, 1172 
 
 Buck v. Beach, 206 U. S. 392; 27 Sup. Ct. Rep. 712; 51 L. ed. 1106.. 965 
 
 Burgess v. Pue, 2 Gill. 11 155 
 
 Burgess v. Seligman, 107 U. S. 20; 2 Sup. Ct. Rep. 10; 27 L. ed. 359. . 022 
 
 1036
 
 TABLE OF CASES. xxxv 
 
 PAGE. 
 
 Bush v. Kentucky, 107 U. S. lid: 1 Sup. Ct. Rep. G25; 27 L. ed. 354.. 8S4 
 Butler v. Boston Steamship Co., 130 U. S. 527; 9 Sup. Ct. Rep. 612; 32 
 
 L. ed. 1017 1117, 1118 
 
 Butler v. Goreley, 146 U. S. 303; 13 Sup. Ct. Rep. 84; 36 L. ed. 981 77'.' 
 
 Butler v. Pennsylvania. 10 How. 402; 13 L. ed. 472 166, 893 
 
 Butterworth v. United States, 112 U. S. 50; 5 Sup. Ct. Rep. 25; 28 L. 
 
 ed. 656 1 1 62 
 
 Buttfield v. Stranahan, 192 U. S. 470; 24 Sup. Ct. Rep. 349; 48 L. ed. 
 
 525 .' 769, 1283, 1321 
 
 Butz v. Muscatine, 8 Wall. 575 ; 19 L. ed. 4&0 925 
 
 C. 
 
 C., B. & Q. R. R. Co. v. Chicago, 166 U. S. 226; 17 Sup. Ct. Rep. 581; 
 
 41 L. ed. 979 868 
 
 ('.. I!. \- Q. R. Co. v. Iowa. 94 U. S. 155; 24 L. ed. 94 730, 909 
 
 ( '.. M. \- St. P. R. R. Co. v. Ackley. 94 V. S. 179; 24 L. ed. 99 909 
 
 C.. M. & St. P. Ry. Co. v. Minn., 134 U. S. 418; 10 Sup. Ct. Rep. 
 
 462 ; 33 L. ed. 970 901 
 
 C. & 0. Ry. Co. v. Kentucky, 179 U. S. 388; 21 Sup. Ct. Rep. 101; 45 
 
 L. ed. 244 889 
 
 Cal leman v. Peoria. etc., R. R. Co., 179 U. S. 335; 21 Sup. Ct. Rep. 171; 
 
 45 L. ed. 220 988 
 
 Calder v. Bull, 3 Dall. 386: 1 L. ed. 648 42, 79, 803, 1200 
 
 < aMwell v. North Carolina, 187 U. S. 622; 23 Sup. Ct. Rep. 229; 47 L. 
 
 ed. 336 687, 700 
 
 California v. Central Pacific R. Co., 127 U. S. 1 ; 8 Sup. Ct. Rep. 1073; 
 
 32 L. ed. 150 ) 99, 111, 763,' 764 
 
 Callnn v. Wilson, 127 U. S. 540; 8 Sup. Ct. Rep. 1301: 32 L. ed. 
 
 223 408, 806, 808, 810, 811 
 
 Calvin'- Case, 7 Coke. 118b 276 
 
 Campbell v. California, 200 U. S. 87; 26 Sup. Ct. Rep. 182; 50 L. ed. 
 
 382 601 
 
 Campl>ell v. United States, 1Q7 U. S. 407; 2 Sup. Ct. Rep. 759; 27 L. 
 
 <<]. 592 1165 
 
 Canrvmi v. People. IS N. V. 128 814 
 
 Ciiniion v. New Ork.;ms. 2(1 W:ill. 577: 22 L. ed. 417 661 
 
 Capital Traction Co. v. Hof, 174 U. S. 1; 19 Sup. Ct. Rep. 580; 43 L. 
 
 ed. 873 375, 808, 840 
 
 Cardwell v. American River Bridge Co., 113 U. S. 205; 5 Sup. Ct. Rep. 
 
 423 : 28 L. ed. 05!) 76, 601 
 
 Carlisle v. United State*. 10 Wall. 147; 21 L. ed. 426 834 
 
 Carter v. Com. ,.f Ya.. .tti Ya. 791 1269 
 
 (Vnlnil Land Co. v. Laidley. ir>!) U. S. 103: 10 Sup. Ct. Rep. 80; 40 L. 
 
 ed. 91 868. 917 
 
 Castillo v. McConnieo, 108 U. S. 674: 18 Sup. Ct. Rep. 229: 4? L. od. 
 
 f22 804 
 
 ('line Chan Ping v. United States. 130 V. S. 581 : Sup. Ct. Rep. 623: 32 
 
 1.. ,-d. 1068 251, 485, 1286
 
 xxxvi TABLE OF CASES. 
 
 PAGE. 
 
 Champion v. Ames, 188 U. S. 321; 23 Sup. Ct. Rep. 321; 47 L. ed. 
 
 492 633, 638, 735, 736, 766 
 
 Chapman, Re, 166 U. S. 661; 17 Sup. Ct. Rep. 677; 41 L. eel. 1154 1272 
 
 Chappell v. United States, ICO U. S. 499; 16 Sup. Ct. Rep. 397; 40 L. ed. 
 
 510 119 
 
 Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420; 9 L. ed. 
 
 v 773 83, 898, 899 
 
 Charming Betsy, The, 2 Cr. 64 ; 2 L. ed. 208 1014 
 
 Cheatham v. United States, 92 U. S. 85 ; 23 'L. ed. 561 625 
 
 Cheever v. Wilson, 9 Wall. 108 ; 19 L. ed. 604 987. 10(57 
 
 Chemung anal Bank v. Lowery, 93 U. S. 72; 23 L. e3. 806 216 
 
 Cherokee Nation, The, v. Georgia, 5 Pet. 1 ; 8 L. ed. 253. .302, 1000, 1060, 1304 
 Cherokee Nation v. Hitchcock, 187 U. S. 294; 23 Sup. Ct. Rep. 115; 
 
 47 L. ed. 183 3 ' 3 
 
 Cherokee Nation v. Southern Kan. Ry. Co., 135 U. S. 641; 10 Sup. Ct. 
 
 Rep. 965; 34 L. ed. 295 312 
 
 Cherokee Tobacco Case, 11 Wall. 616; 20 L. ed. 227 486, 494, 1011 
 
 Chew Heong v. United States, ]12 U. S. 536; 5 Sup. Ct. Rep. 255; 28 
 
 L. ed. 770 485, 1287 
 
 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; 17 Sup. Ct. Rep. 581; 
 
 41 L. ed. 979 856, 870 
 
 Chicago, etc., Ry. Co. v. Minn., 134 U. S. 418; 10 Sup. Ct. Rep. 462; 
 
 33 L. ed. 970 ' 910 
 
 Chicago, M. & St. P. R. -Co. v. Solan, 169 U. S. 133; 18 Sup. Ct. Rep. 
 
 289; 42 L. ed. 688 606, 728 
 
 Chicago & N. W. R. Co. v. Fuller, 17 Wall. 51>0; 21 L. ed. 710 666 
 
 Chicago Theological Seminary v. Illinois, 188 U. S. 662; 23 Sup. Ct. 
 
 Rep. 386 ; 47 L. ed. 641 906 
 
 Chicot v. Sherwood, 148 U. S. 529; 13 Sup. Ct. Rep. 695; 37 L. ed. 546 149 
 Chin Low v. United States, 208 U. S. 8; 28 Sup. Ct. Rep. 201; 52 L. ed. 
 
 369 253, 1292 
 
 Chinese Exclusion Cases, 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 
 
 1068 ' 452, 485 
 
 Chirac v. Chirac, 2 Wh. 259, 4 L. ed. 234 281, 494, 496, 500, 774 
 
 Chisholm v. Georgia, 2 Call. 419: 1 L. ed. 440 32, 79, 1693 
 
 Chy Lung v. Freeman, 92 U. S. 275; 23 L. ed. 550 885 
 
 Cincinnati, etc., Co. v. Bay, 200 U. S. 179; 26 Sup. Ct. Rep. 208; 50 
 
 L. ed. 428 759 
 
 Cincinnati, P. B. S. & P. Packet Co. v. Catlettsburg, 105 U. S. 559; 
 
 26 L. ed. 1 661 
 
 Cincinnati, W. & Z. R. Co. v. Clinton County Comrs., 1 Ohio St. 88 1320 
 
 City of Baltimore v. Radecke. 40 Md. 217 ? 1293 
 
 City Bridge Proprietors v. Hoboken Land & Improvement Co., 1 Wall. 
 
 116; 17 L. ed. 571 013 
 
 City of Covington v. Southgate, 15 B. Monr. 491 507 
 
 City of Minneapolis v. Reum, 56 Fed. 576 2. "5 9 
 
 City of Panama, The, 101 U. S. 453 ; 25 L. ed. 1061 370 
 
 Civil Rights Cases, 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835. .176, 187 
 
 849, 851
 
 TABLE OF CASES. xxxvii 
 
 PAGE. 
 
 Claflin v. Houseman, 93 U. S. 130; 23 L. ed. 833 197, 991 
 
 Clarke, Ex parte, 100 U. S. 399 ; 25 L. ed. 715 549 
 
 Cleveland, C., C. & St. L. R. Co. v. Backus, 154 U. S. 439; 14 Sup. Ct. 
 
 Rep. 1122; 38 L. ed. 1041 716, 719, 950 
 
 Clinton Bridge Case, 1 Woolw. 155; Fed. Cas. No. 2,900 486, 487, 488 
 
 Clinton Englebrecht, 13 Wall. 434; 20 L. ed. 659 370, 970 
 
 Clyutt v. United States, 197 U. S. 207; 25 Sup. Ct. Rep. 429; 49 L. ed. 
 
 726 
 
 Coe v. Errol, 116 U. S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715.. 611, 
 
 713, 752, 947, 949, 968, 909 
 
 Coffin v. Coffin, 4 Mass. 1 531 
 
 Cohen v. Virginia, 6 Wh. 264; 5 L. ed. 527 32, 66, 80, 122, 376, 377 
 
 556, 1046, 1052, 1068, 1070 
 
 Coleman v. Tennessee, 97 U. S. 509; 24 L. ed. 1118 818, 1200, 1203, 1206 
 
 Collector v. Day, 11 Wall. 113; 20 L. ed. 122 113 
 
 Collet v. Collet, 2 Dall. 294; 1 L. ed. 387 281, 774 
 
 Collins v. New Hampshire, 171 U. S. 30; 18 Sup. Ct. Rep. 768; 43 L. ed. 
 
 60 695 
 
 Collins v. United States, 14 Ct. of Claims, 569 1175 
 
 Corners v. Ya-sc. 1 Pet. 193 ; 7 L. ed. 108 1279 
 
 Commissioners, etc. v. Covey, 74 Ind. 262 1295 
 
 Commonwealth v. Abrahams, 150 Mass. 57 ,,.. 1295 
 
 Commonwealth v. Alger, 7 Cush. 53 1231 
 
 Commonwealth v. Blanding, 3 Peck, 304 1295 
 
 Commonwealth v. Brooks, 109 Mass. 355 1295 
 
 Commonwealth v. Davis, 140 Mass. 485 1295 
 
 Commonwealth v. Roby, 12 Pick. (Mass.) 503 818 
 
 Commonwealth of Pennsylvania ex rel. Wadsworth v. Shortall, 206 Pa. 
 
 St. 165 1240 
 
 Compagnie Francaise, etc., v. State Board of Health of Louisiana, 186 
 
 U. S. 380; 22 Sup. Ct. Rep. 811 ; 46 L. ed. 1209 676 
 
 Connolly v. Union Sewer Pipe Co., 184 U. S. 540; 22 Sup. Ct. Rep. 431; 
 
 46 L. ed. 679 761 
 
 Connolly v. Union Sewer Pipe Co., 184 U. S. 540; 22 Sup. Ct Rep. 431; 
 
 46 L. ed. 079 888 
 
 Consolidated Rendering Co. v. Vermont, 207 U. S. 541; 28 Sup. Ct. Rep. 
 
 178 ; 52 L. < -d. 327 826 
 
 Continental Wall Paper Co. v. Voight, 212 U. S. 515; 29 Sup. Ct. Rep. " 
 
 280; 53 L. ed. 486 761 
 
 Conway v. Taylor, 1 Black, 603 661 
 
 Cook v. Hart, I4f> U. S. 183; 13 Sup. Ct. Rep. 40; 46 L. ed. 934 232 
 
 Cook v. Marshall, 10(1 U. S. 201 : 25 Sup. Ct. Rep. 233; 49 L. ed. 471 .. 649 
 Cook v. United States, 138 U. S. 157; 11 Sup. Ct. Rep. 268; 34 L. ed. 
 
 906 410 
 
 Cooley v. Philadelphia Port Wardens. 12 How. 200: 13 L. ed. 996.76, 658, 661 
 
 Cooper, Ex parte, 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232. . 370 
 
 1004, 1010 
 
 Cooper, Ex parte, 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232.. 370
 
 xxxviii TABLE OF CASES. 
 
 PAGE. 
 
 Coosaw Mining Co. v. S. Carolina, 144 U. S. 550; 12 Sup. Ct. Rep. 689; 
 
 36 L. ed. 537 898 
 
 Cope v. Valletta Dry Dock Co., 119 U. S. 625; 7 Sup. Ct. Rep. 336; 30 
 
 L. ed. 501 1112 
 
 Corfield v. Coryell, 4 Wash. C. C. 371 179, 213 
 
 Cornelius v. Kessel, 128 U. S. 456; 9 Sup. Ct. Rep. 122; 32 L. ed. 482. . 1162 
 
 Cornell v. Coyne, 192 U. S. 418; 24 Sup. Ct. Kep. 383; 48 L. ed. 504.. 613 
 
 Corry v. Baltimore, 196 U. S. 466; 25 Sup. Ct. Rep. 297; 49~"L. ed. 556. 980 
 
 Cosgrove v. Winney, 174 U. S. 64; 19 Sup. Ct. Rep. 598; 43 L. ed. 897. . 231 
 Counselman v. Hitchcock, 142 U. S. 547 ; 12 Sup. Ct. Rep. 195 ; 35 L. ed. 
 
 1110 826 
 
 County of Mobile v. Kimball, 102 U. S. 601 ; 26 L. ed. 238 650 
 
 Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204: 14 Sup. 
 
 Ct. Rep. 1087 ; 38 L. ed. 962 660, 730 
 
 Coy, In re, 127 U. S. 731; 8 Sup. Ct. Rep. 1263; 32 L. ed. 274 '. . . . 543 
 
 Craig v. Missouri, 4 Pet. 410; 7 L. ed. 903 82, 878, 1056 
 
 Crandall v. Nevada, 6 Wall. 35 ; 18 L. ed. 745 182, 714 
 
 Crandall v. State, 10 Conn. 339 266 
 
 Crocker v. Shaw, 174 Mass. 266 599 
 
 Cross v. Harrison, 16 How. 164; 14 L. ed. 889 352, 388, 393, 1226 
 
 Grossman v. United States, 182 U. S. 221; 21 Sup. St. Rep. 742; 45 L. 
 
 ed. 1065 440 
 
 Crown Cork & Seal Co. v. Maryland, 187 Md. 687 100 
 
 Crutcher v. Kentucky, 141 U. S. 47 ; 11 Sup. Ct. Rep. 851; 35 L. ed. 649. 696 
 
 Cummings v. Missouri, 4 Wall. 277 ; 18 L. ed. 356 801 
 
 Cunningham v. Macon & B. R. Co., 109 U. S. 446; 3 Sup. Ct. Rep. 292; 
 
 27 L. ed. 992 1O81, 1082, 1102 
 
 Curran v. Arkansas, 15 How. 304 ; 14 L. ed. 705 168 
 
 D. 
 
 Daniel Ball, The, 10 Wall. 557; 19 L. ed. 999 768, 1110 
 
 Darnell & Son Co. v. Memphis, 208 U. S. 113; 28 Sup. Ct. Rep. 247; 52 
 
 L. ed. 413 705 
 
 Darrington v. Bank of Alabama, 13 How. 12 ; 14 L. ed. 30 880 
 
 Dartmouth College v. Woodward, 4 Wh. 518; 4 L. ed. 629.... 45, 82. 337 
 
 858, 893, 897 
 
 Davidson v. New Orleans, 96 U. S. 97; 24 L. ed. 616 583, 857, 864, 932 
 
 Davis, The, 10 Wall. 15 ; 19 L. ed. 875 1098 
 
 Davis v. Bank, 161 U. S. 27o; 16 Sup. Ct. Rep. 502; 40 ^L. ed. 700 98 
 
 Davis v. Season, 133 U. S. 333; 10 Sup. Ct. Rep. 299; 33 L. ed. 637 842 
 
 Davis v. Concordia, 9 How. 280; 13 L. ed. 138 488 
 
 Davis v. Gray, 16 Wall. 203 ; 21 L. ed. 447 168, 1083 
 
 Davis v. Massachusetts, 167 U. S. 43; 17 Sup. Ct. Rep. 731; 42 L. ed. 
 
 71 1205 
 
 Davis v. Richardson, 45 Miss. 503 119 
 
 Debs, Re, 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092 46. 90, 760 
 
 791, 809, 1216 
 
 Deckert, Re, 2 Hughes, 183 ; Fed. Cas. No. 3.728 778
 
 TABLE OF CASES. xxxix 
 
 PAGE. 
 DeGeofroy v. Riggs, 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 
 
 642 375, 406, 423, 494, 500, 508 
 
 Delameter v. South Dakota, 205 U. S. 93; 27 Sup. Ct. Rep. 447; 51 L. 
 
 ed. 724 690, 696 
 
 Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341; 25 Sup. Ct. 
 
 Rep. 669 ; 49 L. ed. 1077 948, 949, 954 
 
 Delaware Railroad Tax, 18 Wall. 206; 21 L. ed. 888 725 
 
 De Lima v. Bidwell, 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041 04 
 
 361, 384, 392, 396, 442, 611 
 
 Delmas v. Merchants' Mutual Insurance 'Co., 14 Wall. 661; 20 L. ed. 757 1038 
 
 Dennick v. Central R. R. Co., 103 U. S. 11 ; 26 L. ed. 439 199 
 
 Denny v. Bennett, 128 U. S. 489; 9 Sup. Ct. Rep. 134; 32 L. ed. 491.77(5, 777 
 De Saussure v. Gaillard, 127 U. S. 216; 8 Sup. Ct. Rep. 1053; 32 L. ed. 
 
 125 979 
 
 Desbois' Case, 2 Martin 185 272 
 
 Dewey v. City of Des Moines, 173 U. S. 193; 19 Sup. Ct. Rep. 379; 43 
 
 L. ed. 665 944 
 
 Diamond Match Co. v. Ontonagon, 188 U. S. 82; 23 Sup. Ct. Rep. 266; 
 
 47 L. ed. 394 713 
 
 Diamond Rings, The, 183 U. S. 176; 22 Sup. Ct. Rep. 59; 46 L. ed. 138, 402 
 
 442 
 Dickerman x. Northern Trust Co., 176 U. S. 181; 20 Sup. Ct. Rep. 311; 
 
 44 L. ed. 423 987 
 
 Dietzsch v. Huidekoper, 103 U. S. 494 ; 26 L. ed. 497 143 
 
 Divina Pastora, The, 4 Wh. 52 ; 4 L. ed. 512 1006 
 
 Dixon's Case, 3 Op. Atty.-Gen. 662 ; 4 0]). Atty.-Gen. 458 1271 
 
 Dobbins v. Commissioners, 16 Pet. 435; 10 L. ed. 1022 102 
 
 Doe v. Braden, 16 How. 635 ; 14 L. ed. 1090 495, 1007, 1278 
 
 Doolcy v. United States, 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 
 
 * 1074 385, 391, 400, 1218, 1226, 1309 
 
 Dooley v. United States, 183 U. S. 151; 22 Sup. Ct. Rep. 62; 43 L. ed. 
 
 " 128 440, 609 
 
 Dorr v. United States, 195 U. S. 13'8; 24 Sup. Ct. Rep. 808; 49 L. ed. 
 
 ' 128 , 437 
 
 Dorsey v. Britain. 177 111. 250 259 
 
 Douglass v. Counly of Pike, 101 U. S. 677 ; 25 L. ed. 968 924 
 
 IWiirs v. Bidwt'll, 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 
 
 10SS 35, 330, 368, 372, 402, 407, 411, 494, 507, 800 
 
 Downes v. United States, 187 U. S. 496; 23 Sup. Ct. Rep. 222; 47 L. ed. 
 
 275 607 
 
 Doyle v. Continental Insurance Co., 94 U. S. 535; 24 L. ed. 148 147 
 
 Draper v. United States, 1(54 U. S. 240; 17 Ct. Rep. 107; 41 L. ed. 
 
 419 ., 485 
 
 Dred Scott v. Sandford, 19 How. 93; 15 L. ed. 691.. '. 46, 202, 270. 281 
 
 .,-J(i. 354. 40S. 1024 
 
 Drover v. Illinois. 187 U. P. 71: 23 Pup. ft. l>p. 2^: 47 I., ed. 70.... 819 
 
 Duncan. Tn re. 130 U. S. 440: 11 Sup. ft. Hop. 573: :?5 L. ed. 219 1023 
 
 Duncan v. McCall, 139 U. S. 449; 11 Sup. Ct. Rep. 573; 35" L. ed. 219.. 564
 
 xl TABLE OF CASES. 
 
 PAGE. 
 
 Duncan v. Missouri, 152 U. S. 377; 14 Sup. Ct. Rep. 570; 38 L. ed. 485 804 
 Dunlap v. United States, 173 U. S. 65; 19 Sup. Ct. Rep. 319; 43 L. ed. 
 
 616 34, 1165 
 
 Dynes v. Hoover, 20- How. 65 ; 15 L. ed. 838 1 198 
 
 E. 
 East Central Eureka Min. Co. v. Central Eureka Min. Co., 204 U. S. 266; 
 
 27 Sup. Ct. Rep. 258 ; 51 L. ed. 476 1029 
 
 Edwards v. Kearzey, 96 U. S. 595; 24 L. ed. 793 776 
 
 Edye v. Robertson, 112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 
 
 798 578 
 
 Eilenbecker v. Dist. Court of Plymouth Co., 134 U. S. 31; 10 Sup. Ct. 
 
 Rep. 424 ; 33 L. ed. 801 809 
 
 Ekiu v. United States, 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 
 
 1146 253, 453, 1180, 1287, 1292 
 
 Ela v. Smith, 5 Gray (Mass.) , 121 1235 
 
 Elk v. Wilkins, 112 U. S. 94; 5 Sup. Ct. Rep. 41; 28 L. ed. 643 276, 307 
 
 Elmendorf v. Tyler, 10 Wh. 152 ; 6 L. ed. 289 1022 
 
 El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S. 87 ; 30 Sup. Ct. 
 
 Rep. 21 743 
 
 Em,bry v. Palmer, 107 U. S. 3; 2 Sup. Ct. Rep. 25; 27 L. ed. 346 193 
 
 Emert v. Missouri, 156 U. S. 296; 15 Sup. Ct. Rep. 3<37; 39 L. ed. 430. . 710 
 
 Erie Ry. Co. v. State, 31 N. J. L. 531 634 
 
 Escanaba v. Lake Michigan Transportation Co., 107 U. S. 678; 2 Sup. 
 
 Ct. Rep. 185; 27 L. ed. 442 241, 6G1 
 
 Estate of Campbell, 143 Cal. 623 599 
 
 Estate of Magnes, 32 Colo. 527 599, 600 
 
 Estate of Stanford, 126 Cal. 112 599 
 
 Exchange, The, 7 Cr. 116; 3 L. ed. 287 244 
 
 Experiment, The, 8 Wh. 261 ; 5 L. ed. 612 793 
 
 Eyre v. Jacob, 14 Gratt. 422 599 
 
 F. 
 
 Fair, Re, 100 Fed. Rep. 149 1310 
 
 Fairbanks v. United States, 181 U. S. 283; 21 Sup. Ct. Rep. 648; 45 
 
 L. ed. 862 27, 73, 612 
 
 Fairfax v. Hunter, 7 Cr. 603 ; 3 L. ed. 453 496, 500 
 
 Fall v. Easton, 30 Sup. Ct. Rep. 3 202 
 
 Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112; 17 Sup. Ct. Rep. 
 
 56; 41 L. ed. 369 862, 932 
 
 Fama, The, 5 C. ROD. 106 398 
 
 Fanning v. Gregoire, 16 How. 524 ; 14 L. ed. 1043 894 
 
 Fargo v. Hart, 193 V. S. 490; 24 Sup. Ct. Rep. 498; 48 L. ed. 761 720 
 
 Fauntleroy v. Lum, 210 U. S. 230; 28 Sup. Ct. Rep. 641; 52 L. ed. 1039 202 
 
 Fellows v. Blacksmith, 19 How. 366; 15 L. ed. 684 488 
 
 Ferry v. Campbell. 1 10 Iowa, 290 599 
 
 Ficklen v. Shelby Co., 145 U. S. 1 ; 12 Sup. Ct. Rep. 810; 36 L. ed. 601 705
 
 TABLE OF CASES. xli 
 
 PAGE. 
 
 Field v. Clark, 143 U. S. 649; 12 Sup. Ct> Rep. 495; 36 L. ed. 294 478 
 
 562, 608, 1319 
 
 Fifield v. Close, 15 Mich. 505 119 
 
 First National Bank v. Kentucky, 9 Wall. 353; 19 L. ed. 701 960 
 
 Fitch v. We^er, 6 Hare, 51 287 
 
 Fitts v. McOhee, 172 U. S. 516; 19 Sup. Ct. Rep. 269; 43 L. ed. 535.. 977 
 
 1092 
 
 Flaherty, Re, 105 Cal. 558 129,5 
 
 Fleming v. Page, 9 How. 603; 13 L. ed. 276 335, 339, 381, 387, 392 
 
 Fletcher v. Peck, 6 Cr. 87 ; 3 L. ed. 162 42, 79, 293, 897, 1086 
 
 Florida v. Anderson, 91 U. S. 667 ; 23 L. ed. 290 1056 
 
 Florida v. Georgia, 1 1 How. 293 ; 13 L. ed. 702 1058 
 
 Florida v. Georgia, 17 How. 478; 15 L. ed. 181 1043 
 
 Folsom v. Township, 159 U. S. 611; 16 Sup. Ct. Rep. 174; 40 L. ed. 278 925 
 Fong Yue Ting v. United States, 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 
 
 37 L. ed. 905 65, 68, 253, 453, 485, 810, 860, 1331 
 
 Fontain v. Ravanel, 17 How. 369 ; 15 L. ed. 80 1012 
 
 Ford v. Surget, 97 U. S. 594 ; 24 L. ed. 1018 1242 
 
 Foxt Lea ven worth R. R. Crf. v. Lowe, 114 U. S. 525; 5 Sup. Ct. Rep. 
 
 995 ; 29 L. ed. 264 378, 494, 508 
 
 Foster v. Kansas, 112 U. S. 205; 5 Sup. Ct. Rep. 8; 28 L. ed, 696 169 
 
 Foster v. Neilson, 2 Pet. 253 ; 7 L. ed. 415 483, 486, 1003 
 
 Fox v. Ohio, 5 How. 410; 12 L. ed. 213 781, 782, 816 
 
 Frelinghuysen v. Key, 110 U. S. C3; 3 Sup Ct. Rep. 462; 28 L. ed. 71. . 1280 
 
 Fremont v. United States, 17 How. 542 ; 15 L. ed. 241 1014 
 
 French v. Barber Asphalt Paving Co., 181 U. S. 324; 21 Sup. Ct. Rep. 
 
 025 ; 45 L. ed. 879 856, 937, 942 
 
 French v. Hay. 22 Wall. 250 : 22 L. ed. 857 144 
 
 French v. Taylor, 109 U. S. 274 : 2(5 Sup. Ct. Rep. 76; 50 L. ed. 189 864 
 
 Frothingham v. Shaw, 175 Mass. 59 599 
 
 Furman v. Nichol, 8 Wall. 44 ; 19 L. ed. 370 1084 
 
 G. 
 
 Galveston, IT. & S. A. R. R. Co. v. Texas, 210 U. S. 217; 28 Sup. Ct. Rep. 
 
 638; 52 L. ed. 1031 721 
 
 Gardner v. Barney, Wall. 400 : 18 L. ed. 890 - 563 
 
 Garcia v. !.<<. 12 Pet. 511; 9 L. ed. 1176 484 
 
 Garland. Kx ] art.>. 4 Wall. 333; 18 L. ed. 366 803, 1171 
 
 Garland v. Gaines. 73 Conn. 602 11!) 
 
 Garnett, Kx j.iirtr. 141 U. S. 1; 11 Sup. Ct. Rep. 840; 35 L. ed. 631 117 
 
 Gassies v. Ballon, G Pet. 7<il ; 8 L. ed. 573 261 
 
 Geer v. Connecticut. 101 U. S. 519: 16 Sup. Ct, Rep. 600; 40 L. ed. 793 670 
 
 Gelpeko v. Duhii(|ue. 1 Wall. 175; 17 L. ed. 520 10, 923 
 
 G.'Mhorpo v. Furnell. 20 Mont. 200 599 
 
 Geneve Chief. The, 12 How. 443: 13 L. ed. 1058 1103 
 
 Georgia v. Brail-ford. 3 Dull. 1 : 1 L. ed. 4S3 70 
 
 Georgia v. Brailsford. 2 Ball. 402 : 1 L. ed. 433 1063 
 
 Georgia R. & i:kg. Oo. v. Smith, 128 U. S. 174; 9 Sup. Ct. Rep. 47; 
 
 32 L. ed. 377.. 910
 
 xlii TABLE OF CASES. 
 
 PAGE. 
 
 Georgia v. Stanton, 6 Wall. 50; IS L. ed. 721 1001, 1050, 1304 
 
 Georgia v. Tennessee Copper Co., 206 U. S. 230; 27 Sup. Ct. Rep. 618; 
 
 51 L. ed. 1038 1053, 1054 
 
 Gibbons v. Ogden, 9 VVh. 1; G L, ed. 23. . . .28, 56, 82, 629, 632, 651, 661, 670 
 
 735, 745, 770, 846 
 
 Gibbons v. United States, 8 Wall. 269; 19 L. ed. 453 1309 
 
 Gibson v. Mississippi, 102 U. S. 505; 16 Sup. Ct. Rep. 904; 40 L. ed. 
 
 1C75 885 
 
 Giles v. Harris, 189 U. S. 475; 23 Sup. Ct. Rep. 639; 47 L. ed. 909. ... 5f>2 
 
 Giles v. Teasley, 193 U. S. 146; 24 Sup. Ct. Rep. 359; 48 L. ed. 655... 554 
 
 Giozza v. Tiernan, 148 U. S. 657; 13 Sup. Ct. Rep. 721; 37 L. ed. 599.. 858 
 Gladsen v. Minnesota, 166 U. S. 427; 17 Sup. Ct. Rep. 627; 41 L. ed. 
 
 10G4 GtJ6 
 
 Glide, The, 167 U. S. COG; 17 Sup. Ct. Rep. 930; 42 L. ed. 296 1115 
 
 Gloucester Ferry Co. v, Pennsylvania, 114 U. S. 196; 5 Sup. Ct. Rep. 
 
 826; 29 L. ed. 158 650, 725, 745 
 
 Godden v. Crump, 8 Leigh, 120 155 
 
 Gold Washing & Water Co. v. Keyes, 96 U. S. 199; 24 L. ed. 656 988 
 
 Goetze v. United States, 182 U. S. 211; 21 Sup. Ct. Rep. 742; 45 L. ed. 
 
 1065 440 
 
 Gonzales v. Williams, 102 U. S. 1 ; 24 Sup. Ct. Rep. 171; 48 L. ed. 317. . 1291 
 
 Good v. Martin. Co U. S. 90; 24 L. ed. 341 370 
 
 Gordon v. United States, 2 Wall. 561 ; 17 L. ed. 921 1275 
 
 Gougar v. Timberlake, 148 Ind. 38 259 
 
 Governor of Georgia v. Madrazo, 1 Pet. 110; 7 L. ed. 73 1078 
 
 Governor's Heirs v. Robertson, 11 Wh. 332 ; 6 L. ed. 488 283 
 
 Graf ton v. United States, 206 U. S. 333; 27 Sup. Ct. Rep. 749; 51 L. ed. 
 
 1084 817 
 
 Graham v. Stucken, 4 Blatchf. 50 975 
 
 Grapeshot, The, v. Wallerstein. 9 Wall. 129; 19 L. ed. 651 388, 401, 1227 
 
 Great Southern Fireproof Hotel Co. v. Jones, 193 U. S. 532 ; 24 Sup. t. 
 
 Rep. 576; 48 L. ed. 778 925 
 
 Green v. Biddle, 8 Wh. 1 ; 5 L. ed. 547 82, 235, 892, 1086 
 
 Green v. Neal, 6 Pet. 291 ; 8 L. ed. 402 1028 
 
 Green Co. v. Conness, 109 U. S. 104; 3 Sup. Ct. Rep. 69; 27 L. ed. 872. . 924 
 
 Greene, Re, 52 Fed. Rep. 104 751 
 
 Greene v. Briggs, 1 Curt. 311 624 
 
 Grunding v. Chicago, 177 U. S. 1S3; 20 Sup. Ct. Rep. 633; 44 L. ed. 725. 886 
 Gulf, etc., Ry. Co. v. Ellis, 165 U. S. 150; 17 Sup. Ct. Rep. 255; 41 L. ed. 
 
 666 886, 887 
 
 Guy v. Baltimore, 100 U. S. 434; 25 L. ed. 743 704 
 
 H. 
 Haddock v. Haddock, 201 U. S. 562; 26 Sup. Ct. Rep. 525; 50 L. ed. 
 
 867 207, 208 
 
 Hagar v. Reclamation District, 111 U. S. 701; 4 Sup. Ct. Rep. 003; 28 
 
 L. ed. 569 621, 857, 932 
 
 Hagerty v. State, 55 Ohio, 613 599
 
 TABLE OF CASKS. xliii 
 
 PAGE. 
 
 Hagood v. Southern, 117 U. S. 52; 6 Sup. Ct. Rep. 608; 29 L. ed. 
 
 805 1081, 1082 
 
 Hale v. Henkel, 201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652. . .826, 827 
 
 828, 829 
 
 Hall v. De Cuir, 95 U. S. 485 ; 24 L. ed. 547 668 
 
 Hallctt v. Doe ex dem. Hunt, 7 Ala. 899 398 
 
 Hamilton, The, 207 U. S. 398; 28 Sup. Ct. Rep. 133; 52 L. ed. 264r. 1116 
 
 Hammond Packing Co. v. Arkansas, 212 TJ. S. 322; 29 Sup. Ct. Rep. 
 
 370; 53 L. ed. 530 861 
 
 Hanford v. Davics, 163 U. S. 273; 16 Sup. Ct. Rep. 10.il; 41 L. ed. 157. 917 
 Hanley v. Kansas City S. Ry. Co., 187 U. S. 617; 23 Sup. Ct. Rep. 214; 
 
 '47 L. ed. 333..' 732, 733 
 
 Hannibal & St. J. R. Co. v. Husen, 95 U. S. 464; 24 L. ed. 527 675 
 
 Hanover Xat. Bank v. Moyses, 186 U. S. 181; 22 Sup. Ct. Rep. 857; 46 
 
 L. ed. 1113 775, 776, 777, 778 
 
 Hans v. Louisiana, 134 U. S. 1 ; 10 Sup. Ct. Rep. 504; 33 L. ed. 842. ... 533 
 
 1060, 1065, 1069, 1074 
 
 Han-m v. Yernon, 27 Ga. 28 586 
 
 Harding v. Harding, 198 U. S. 317; 25 Sup. Ct. Rep. 679; 49 L. ed. 
 
 '] 209 
 
 rfannan v. Chicago. 147 V. S. 396; 13 Sup. Ct. Rep. 306; 37 L. ed. 216. 101 
 
 Hartman v. Greenhow, 102 U. S. 672; 26 L. ed. 271 1084 
 
 Uavcmeyer v. Iowa County, 3 Wall. 294 : 18 L. ed. 38 925 
 
 Haver v. Yaker. Wall. 32; 19 L. ed. 571 463, 517 
 
 Hawaii v. Maukichi, 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 
 
 1016 64, 432, 815 
 
 Ilauenstein v. Lynham, 100 U. S. 483: 25 L. ed. 628 494, 496, 500 
 
 liaybiirn's ( MB, ~2 Dall. 409; 1 L. ed. 436 1274 
 
 Head v. Amoskeag Mfg. Co., 113 U. S. 9; 5 Sup. Ct. Rep. 441; 28 L. ed. 
 
 S89 +r: 868 
 
 Head Money Cases, 112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 708. . f.l 
 
 484, 487, 514, 578 
 Henderson Bridge Co. v. Kentucky, 166 U. S. 150; 17 Sup. Ct. Rep. 532; 
 
 4 1 L. ed. 053 716 
 
 TIcnd. M-mi y. Mayor of Xew York. 92 U. S. 259; 23 L. ed, 543. .664, 714, 8*5 
 
 TVn.li !(; v. Con/air-. 87 1-Vd. Rep. 351 1311 
 
 H..iii:en. V.x parte. 13 Pet. 230; 10 L. ed. 138 1182 
 
 Honnen, Re, 13 Pet. 225: 10 L. ed. 136 1186 
 
 Hennimrton v. Georgia, 163 U. S. 299; 16 Sup. Ct. Rep. 1086; 41 L. ed. 
 
 Kit; 663, 666 
 
 lie; burn v. Ellx.ey, 2 Cr. 44o: 2 L. .<!. 332 273, 374, 375, 984, 1000 
 
 Hepburn v. Griswold, 8 Wall. 603; l!) L. ed. 513 627. 866, 875 
 
 Heymann v. Southern R. Co., 203 U. S. 270; 27 Sup. Ct. Rep. 104; 51 
 
 L. ed. 17^ 689 
 
 S:ivm-_r- i I.uiu S'viHv v. < .in Kranci-c-i. 200 U. S. .,]0 : iy, 
 
 Sup. Ct. Rop. 2 (-,.- ; r,0 L. ed. 40~> 107 
 
 Estnte (Vt.).i fi-2 All. Bap. 274 509 
 
 ins v. KutT-1. 1 in V. 5?. 42P: 11 Sup. Ct. l>p. 731: 35 L. ed. 470.. 794 
 Hi eh v. C.>vne. 0:; F <1. Re-.. 450.. 599
 
 xliv TABLE OF CASES. 
 
 PAGE. 
 
 Hill v. People, 16 Mich. 351 814 
 
 Hilton v. Guyot, 159 U. S. 113; 16 Sup. Ct. Rep. 139; 40 L. ed. 95 1014 
 
 Hilton v. Merritt, 110 U. S. 97; 3 Sup. Ct. Rep. 548; 28 L. ed. 83 623 
 
 1283, 1288 
 
 Hine v. The City of New Haven, 40 Conn. 478 1295 
 
 Hine v. Trevor, 4 Wall. 555; 18 L. ed. 451 1115 
 
 Hodges v. United States, 203 U. S. 1; 27 Sup. Ct. Rep. 6; 51 L. ed. 65. 849 
 
 Hoff, Re, 197 U. S. 488; 25 Sup. Ct. Rep. 506; 49 L. ed. 848 315 
 
 Hoke v. Henderson, 4 Dev. (N. C.) 15 624 
 
 Holden v. Hardy, 169 U. S. 366; 18 Sup. Ct Rep. 383; 42 L. ed. 780.. 860 
 
 873 
 
 Hollingsworth v. Virginia, 3 Ball. 378 ; 1 L. ed. 644 520, 1064 
 
 Holmes v. Jennison, 14 Pet. 540; 10 L. ed. 579 224 
 
 Home of the Friendless v. Rouse, 8 Wall. 430; 19 L. ed. 495 906 
 
 Home Insurance Co. v. Morse, 20 Wall. 445; 22 L. ed. 365 146 
 
 Home Ins. Co. v. New York, 134 U. S. 594; 10 Sup. Ct. Rep. 593; 33 L. ed. 
 
 1025 106, 888 
 
 Home L. Insurance Co. v. Dunn, 19 Wall. 214; 22 L. ed. 68 149 
 
 Home Savings Bank v. Des Moines, 205 U. S. 503; 27 Sup. Ct. Rep. 
 
 571 ; 51 L. ed. 901 104 
 
 Homestead Treason Case, 1 Dist. Rep. (Pa.) 785 838 
 
 Hooe v. Jamieson, 166 U. S. 395; 17 Sup. Ct. Rep. 596; 41 L. ed. 
 
 1049 375, 984 
 
 Hooper v. California, 155 U. S. 648; 15 Sup. Ct. Rep. 207; 39 L. ed. 
 
 297 635 
 
 Hopkins v. United States, 171 U. S. 578; 19 Sup. Ct. Rep. 40; 43 L. ed. 
 
 290 754 
 
 Hopkirk v. Bell, 3 Cr. 454 ; 2 L. ed. 497 500 
 
 Hopt v. Utah, 110 U. S. 574; 4 Sup. Ct. Rep. 202; 28 L. ed. 262 804 
 
 814, 821 
 
 Hornbuckle v. Toombs, 18 Wall. 648 ; 21 L. ed. 966 370 
 
 Hotel Co. v. Jones, 193 U. S. 532; 24 Sup. Ct. Rep. 576; 48 L. ed. 778. 926 
 Hotema v. United States, 186 U. S. 413; 22 Sup. Ct. Rep. 895; 46 L. ed. 
 
 1225 810 
 
 Houston v. Moore, 5 Wh. 1 ; 5 L. ed. 19 75, 997, 1215 
 
 Houston, etc., R. R. Co. v. Mayes, 201 U. S. 321; 26 Sup. Ct. Rep. 491; 
 
 50 L. ed. 772 664, 665 
 
 Houston, etc., Ry. Co. v. Texas, 177 U. S. 66; 20 Sup. Ct. Rep. 545; 44 
 
 L. ed. 673 881 
 
 Hovey v. Elliott, 167 U. S. 409; 17 Sup. Ct. Rep. 841 ; 42 L. ed. 220. ... 861 
 Howard v. Illinois Central R. Co., 207 U. S. 463 ; 28 Sup. Ct. Rep. 141 ; 
 
 52 L. ed. 297 16, 18, 742 
 
 Hoxie v. N. Y., N. H. & H. Ry. Co., 73 Atl. Rep. 754 744 
 
 Hunt v. State, 4 Kan. 60 307 
 
 Huntington v. Attrill, 146 U. S. 657; 13 Sup. Ct. Rep. 224; 36 L. ed. 
 
 1123 916 
 
 Hurtado v. California, 110 U. S. 516; 4 Sup. Ct. Rep. Ill; 28 L. ed. 
 
 232 . 859, 860, 866
 
 TABLE OF CASES. xlv 
 
 PAGE. 
 
 Huse v. Glover, 119 U. S. 543; 7 Sup. Ct. Rep. 313; 30 L. ed. 487 661 
 
 Hyatt v. New York, 188 U. S. 691; 23 Sup. Ct. Rep. 456; 47 L. ed. 
 
 657 227, 233 
 
 Hyde v. Stone, 20 How. 170; 15 L. ed. 874 149 
 
 Hylton v. United States, 3 Dall. 171 ; 1 L. ed. 556 582, 614 
 
 I. 
 
 Illinois . R. Co. v. Decatur, 147 U. S. 190; 13 Sup. Ct. Rep. 293; 37 
 
 L. ed. 132 932 
 
 Illinois Cent. R. Co. v. Decatur, 126 111. 92 929 
 
 Illinois Central Ry. Co. v. Illinois, 163 U. S. 142; 16 Sup. Ct. Rep. 1096; 
 
 41 L. ed. 107 667 
 
 Illinois Central 1*. R. Co. v. Illinois, 146 U. S. 387; 13 Sup. Ct. Rep. 
 
 110; 36 L. ed. 1018 909 
 
 Illinois C. R. Co. v. McKendree, 203 U. S. 514; 27 Sup. Ct. Rep. 153; 
 
 51 L. ed. 298 16 
 
 Indiana v. Kentucky, 136 U. S. 479; 10 Sup. Ct. Rep. 1051; 34 L. ed. 
 
 329 1043 
 
 Inglis v. Sailor's Snug Harbor, 3 Pet. 99 ; 7 L. ed. 617 276, 290 
 
 International Postal Supply Co. v. Bruce, 194 U. S. 601; 24 Sup. Ct. 
 
 Rep. 820; 48 L. ed. 1134 1102, 1103 
 
 International Text Book Co. v. Pugg, 217 U. S. 91; 30 Sup. Ct. Rep. 431 631 
 Interstate Commerce Commission v. Brimson, 154 U. S. 447; 14 Sup. 
 
 Ct. Rep. 1125; 38 L. ed. 1047 18, 747, 1277 
 
 Interstate Commerce Com. v. B. & O. R. R. Co., 145 U. S. 263; 12 Sup. 
 
 Ct. Rep. 844: 30 L. ed. 699 , 727 
 
 Iowa v. Illinois, 202 U. S. 59; 22 Sup. Ct. Rep. 571; 50 L. ed. 934 1044 
 
 Irvine v. Marshall, 20 How. 558; 15 L. ed. 994 989 
 
 J- 
 
 Jack v. Kansas. 199 U. S. 372; 16 Sup. Ct. Rep. 73; 50 L. ed. 234 826 
 
 Jackson, Ex parte, 96 U. S. 727 ; 24 L. ed. 877 741, 784, 829, 843 
 
 James v. Bowman, 190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 
 
 979 ' 17, 192, 551 
 
 James v. United States, 202 U. S. 401; 26 Sup. Ct. Rep. 685; 50 L. ed. 
 
 1079 371 
 
 Jockor v. Montgomery, 13 How. 498; 14 L. ed. 240 400, 1227 
 
 JofTer<on Branch Bank v. Skelly, 1 Black, 436; 17 L. ed. 173.. 912, 915, 1086 
 
 Johnson v. Browne, 205 U. S. 309; 27 Sup. Ct. Rep. 539; 51 L. ed. 816. 487 
 
 Johnson v. M'Intosh, 8 \V\\. 543 ; 5 L. ed. 681 294 
 
 Johnson v. Risk, 137 U. S. 300; 11 Sup. Ct. Rep. Ill; 34 L. ed. 683... 979 
 Johnson v. Southern Pacific R. Co., 196 U. S. 1 ; 25 Sup. Ct. Rep. 158; 
 
 49 L. ed. 363 745 
 
 Johnson v. Towsloy. 13 Wall. 72; 20 L. ett. 485 1162 
 
 Jones v. Keep, 19 Wis. 376 119 
 
 Jones v. Montague, 104 U. S. 147; 24 Sup. Ct. Rep. 611; 48 L. e-,1. 913. ". t 
 
 Jom>s v. Robbins, R Gray, 320 857 
 
 Jones v. inited State*. I:}? U. S. 202; 11 Sup. Ct. Rop. SO; 34 L. ed. 
 
 691 . 341, 807, 1005, 1159
 
 xlvi TABLE OF CASES. 
 
 PAGE. 
 
 Jones' Heirs v. Perry, 10 Yerg. 59 02 i 
 
 Juillard v. Greenman, 110 U. S. 421; 4 Sup. Ct. Rep. 122; 28 L. ed. 
 
 204 454, G27, 875 
 
 K. 
 
 Kaine, In re, 14 How. 103; 14 L. ed. 345 998 
 
 Kansas v. Colorado, 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 
 
 956 50, 69, 1050, 1092 
 
 Kansas v. Colorado, 185 TJ. S. 125; 22 Sup. Ct. Rep. 552; 46 L. ed. 838. 1048 
 
 Kansas Indians, 5 Wall. 737 ; 18 L. ed. 667 306 
 
 Kearney, Ex parte, 7 Wh. 38 ; 5 L. ed. 391 1271 
 
 Keene v. M'Donough, 8 Pet. 308 ; 8 L. ed. 955 398 
 
 Keerl v. Montana, 213 U. S. 135; 29 Sup. Ct. Rep. 469; 53 L. ed. 734. . 819 
 Keim v. United States, 177 U. S. 290; 20 Sup. Ct. Rep. 574; 44 L. ed. 
 
 774 1186 
 
 Keith v. Clark, 97 U. S. 454; 24 L. ed. 1071 979 
 
 Kelley v. Rhoads, 188 U. S. 1 ; 23 Sup. Ct. Rep. 259; 47 L. ed. 359 713 
 
 Kelly v. Pittsburgh, 104 U. S. 78; 26 L. ed. 658 931 
 
 Kemmler, Ex parte, 136 U. S. 436; 10 Sup. Ct. Rep. 930; 34 L. ed. 519. 831 
 
 Kendall v. Stokes, 3 How. 87 ; 11 L. ed. 506 1314 
 
 Kendall v. United States, 12 Pet. 524; 9 L. ed. 1181 141, 1157, 1299, 1304 
 
 Kennard v. Louisiana, 92 U. S. 480 ; 23 L. ed. 478 168 
 
 Kennett v. Chambers, 14 How. 38 ; 14 L. ed. 316 1006 
 
 Kentucky v. Dennison, 24 How. 66; 16 L. ed. 717... 83, 222, 545, 1056, 1179 
 
 Kentucky v. Powers, 201 U. S. 1 ; 26 Sup. Ct. Rep. 387; 50 L. ed. 633. . 997 
 Keokuk, etc., Bridge Co. v. Illinois, 175 U. S. 626; 20 Sup. Ct. Rep. 205; 
 
 44 L. ed. 299 716 
 
 Keokuk N. L. Packet Co. v. Keokuk, 95 U. S. 80; 24 L. ed. 377 661 
 
 Kepner v. United States, 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 
 
 114 439, 818, 820, 822 
 
 Ker v. Illinois, 119 U. S. 436; 7 Sup. Ct. Rep. 225; 30 L. ed. 421. .230. 232 
 
 Kidd v. Alabama, 188 U. S. 730; 23 Sup. Ct. Rep. 401; 47 L. ed. 669. . . 9G9 
 
 Kick! v. Pearson, 128 U. S. 1 ; 9 Sup. Ct. Rep. 6; 32 L. ed. 346 641, 752 
 
 Kilbourn v. Thompson, 103 U. S. 168; 26 L. ed. 377 527, 530, 1261, 1272 
 
 King v. Creery, 1 Maule & Selw. 273 532 
 
 King v. Mulling, 171 U. S. 404; 18 Sup. Ct. Rep. 925; 43 L. ed. 214.. . 025 
 
 King of Spain v. Oliver, 2 Wash. 429 lO.io 
 
 Kirtland v. Hotchkiss, 100 U. S. 491 ; 25 L. ed. 558 634, 962, 963 
 
 Klpin, In re, 1 How. 277, note 777 
 
 Klinger v. Missouri, 13 Wall. 257; 20 L. ed. 635. 979 
 
 Knight v. United States Land Association, 142 U. S. 161; 12 Sup. Ct. 
 
 Rep. 258; 35 L. ed. 974 : 1161 
 
 Knights Templar Indemnity Co. v. Jarman, 187 U. S. 197; 23 Sup. Ct. 
 
 Rep. 108; 47 L. ed. 139 . % 16 
 
 Knowlton v. Moore, 178 U. S. 41; 20 Sup. Ct. Rep. 747: 44 L. ed. 969. . 581 
 
 582, 602, 619, 620, 707, 90!) 
 
 Knox v. Lee, 12 Wall. 457 ; 20 L. ed. 287 20. 80. 027. S75 
 
 Knoxville Water Co. v. Knoxville, 200 U. S. 22 ; 20 Sup. Ct. Eop. 22 1 : 
 
 50 L. ed. 353 898, 899
 
 TABLE OF CASES. xlvii 
 
 PAGE. 
 
 Kochersperger v. Drake, 167 111. 122 600 
 
 Kohl v. United States. 91 U. S. 367; 23 L. ed. 449 379, 763 
 
 Kollock. Ex parte, 165 U. S. 526; 17 Sup. Ct. Rep. 444; 41 L. ed. 813.. 1330 
 Kring v. Missouri, 107 U. S. 221; 2 Sup. Ct. Rep. 443; 27 L. ed. 506.. 804 
 
 Kulin v. Fairmont Coal Co., 30 Sup. Ct. Rep. 140 1029 
 
 Kull v. Kull, 37 Hun (N. Y.) , 476 488 
 
 L. 
 
 La Abra Silver Mining Co. v. United States, 175 U. S. 423; 20 Sup. Ct. 
 
 Rep. 168; 44 L. ed. 223 485, 571, 1280 
 
 Lake Shore, etc., Ry. v. Ohio, 173 U. S. 285; 19 Sup, Ct. Rep. 465; 43 
 
 L. ed. 702 664, 666, 667, 728 
 
 Lane County v. Oregon, 7 Wall. 71 ; 19 L. ed. 101 112 
 
 La Xinfa. The, 75 Fed. Rep. 513 mil 
 
 Lange. Ex jnuto. IS Wall. 163 ; 21 L. ed. 872 818, 822 
 
 l.anz v. Randall, 4 Dill. 425 259, 272 
 
 Lar.-tmie Co. v. Albany Co.. 02 V. S. 307; 23 L. ed. 552 895 
 
 Lascelles v. Georgia, 148 U. S. 537; 13 Sup. Ct, Rep. 687; 37 L. ed. 549. 231 
 Late Corporation of the Church of Jesus Christ v. United States, 136 
 
 U. S. 1: 10 Sup. Ct. Rep. 792; 34 L. ed. 478 68, 361, 367, 368, 408 
 
 Latham v. Smith, 45 111. 293 1027 
 
 Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328 495, 500, 510 
 
 Lav-rent v. St ate. 1 Kans. 313 259 
 
 Lawtoa v. Stc^le. 152 V. S. 133; 14 Sup. Ct. Rep. 499; 38 L. ed. 385. . . 501 
 
 T.efevre v. Detroit, 2 Mich. 586 929 
 
 ell v. Warren. 2 Black. 599 ; 17 L. ed. 261 923, 1028 
 
 Le-r.-tl Tender Cases, 12 Wall. -157 : 20 L. ed. 287 68, 452, 454 
 
 Lehigh Valley R. Co. v. Pennsylvania, 145 U. S.,192; 12 Sup. Ct. Rep. 
 
 806 : 36 L. ed. 72 733 
 
 Lehigh Water Co. v. Easton, 121 U. S. 388; 7 Sup. Ct Rep. 910: 30 
 
 L. ed. 1050 911 
 
 :Leisy v. Hardin, 135 U. S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128. . . . 643 
 
 (545. 679 
 
 Leitensdorfer v. Webb. 20 How. 176: 1 5 L. ed. 891 371, 388 
 
 Lelour v. Mobile. 127 I". S. 0-10; 8 Sup. Ct. Rep. 1383; 32 L. ed. 311.631, 706 
 
 Lemnxm v. The People of N. Y.. 20 N. Y. 007 213 
 
 Lent Moon Sing v. United States, 158 U. S. 538; 15 Sup. Ct. Rep. 967; 
 
 30 L. <<]. 1082 >253, 1288, 1331 
 
 Lent v. Tillsnn. 1-40 U. S. 310; 11 Sup. Ct. Rep. 825: 35 L. ed. 410 932 
 
 Lewis v. United States, 146 U. S. 370; 13 Sup. Ct. Rep. 136; 36 L. ed. 
 
 1011 815 
 
 Licenses Case*, .", Il,,\\-. f,n! : 12 L. ed. 256 83, 498, 656, OHO. 701 
 
 License Tax C*8, T, Wall. 402; IS L. ed. 497 582, 605 
 
 l.iiu-oln Co. v. Liming. 133 U. S. 529; 10 Sup. Ct. Rep. 363; 33 L. ed. 
 
 766 149 
 
 Lindsay v. Commissioners. 2 Ray. 38. 61 11 
 
 Litchfield v. Webster Co., 101 U. S. 773; 25 L. ed. 925 1083
 
 xlviii TABLE OF CASES. 
 
 PAGE. 
 Lithographic Co. v. Sarony, 111 U. S. 53; 4 Sup. Ct. Rep. 279; 28 L. ed. 
 
 349 26 
 
 Little v. Barreme, 2 Cr. 170 : 2 L. ed. 243 1196, 1208 
 
 Little v. Gouid, 2 Blatchf. 165 794 
 
 Liverpool & L. L. & Fire Ins. Co. v. Mass., 10 Wall. 566; 19 L. ed. 1029. 634 
 
 Lloyd v. New York, 5 N. Y. 369 117 
 
 Loan Association v. Topeka, 20 Wall. 655 ; 22 L. ed. 455 585, 608 
 
 Locke's Appeal, 72 Pa. St. 491 1318 
 
 Lockwood v. St. Louis, 24 Mo. 20 928 
 
 Loewe v. Lawler, 208 U. S. 274; 28 Sup. Ct. Rep. 301 ; 52 L. ed. 488. .. 759 
 Logan v. United States, 144 U. S". 263; 12 Sup. Ct. Rep. 617; 36 L. ed. 
 
 429 191, 819 
 
 Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; 17 Sup. Ct. 
 
 Rep. 718; 41 L. ed! 1165 ,. . . . 910 
 
 Los Angelea v. Los Angeles City Water Co., 177 U. S. 558; 20 Supf Ct. 
 
 Rep. 736; 44 L. ed. 886 910, 924 
 
 Lottawanna, The, 21 Wall. 558; 22 L. ed. 654 1015, 1115, 1118 
 
 Loughborough v. Blake, 5 Wh. 317 ; 5 L. ed. 98 334, 372, 408, 426 
 
 Louisiana v. Jumel, 107 U. S. 711; 2 Sup. Ct. Rep. 128; 27 L. ed 
 
 448 1079, 1082 
 
 Louisiana v. Mississippi, 202 U. S. 1 ; 26 Sup. Ct. Rep. 408 ; 50 L. ed. 
 
 913 1044 
 
 Louisiana v. New Orleans, 30 Sup. Ct. Rep. 40 896 
 
 Louisiana v. Pillsbury, 105 U. S. 278; 26 L. ed. 1090 896, 915 
 
 Louisiana v. Texas, 176 U. S. 1 ; 20 Sup. Ct. Rep. 251; 44 L. ed. 347 1044 
 
 Louisiana Board of Liquidation v. McComb, 92 U. S. 531 ; 23 L. ed. 623. 1083 
 
 Louisville, C. & . R. R. Co. v. Letson, 2 How. 497; 11 L. ed. 353 985 
 
 Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385; 23 
 
 Sup. Ct. Rep. 463; 47 L. ed. 513 946, 948, 949, 966 
 
 Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 
 
 430; 25 Sup. Ct. Rep. 466; 49 L. ed. 819 931, 940, 941 
 
 Louisville & Nashville Ry. Co. v. Central Stock Yards Co., 212 U. S. 
 
 132 ; 29 Sup. Ct. Rep. 24H : 53 L. ed. 441 670 
 
 Louisville & N. R. Co. v. Kentucky, 161 U. S. 677; 16 Sup. Ct. Rep. 714; 
 
 40 L. ed. 849 666 
 
 Louisville R. R. Co. v. Railroad Com. of Tenn., 19 Fed. Rep. 679 724 
 
 Londoner v. Denver, 210 U. S. 373; 28 Sup. Ct. Rep. 708; 52 L. ed. 1103. 625 
 Lone Wolf v. Hitchcock, 187 U. S. 553; 23 Sup. Ct. Rep. 216; 47 L. ed. 
 
 299 313 
 
 Loney, In re, 154 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949 139, 527 
 
 Lowell v. Boston, 111 Mass. 454 608 
 
 Ludlam v. Ludlam, 26 N. Y. 356 275 
 
 Luke v. Lyde, 2 Burr. 883, 887 1036 
 
 \/ Luther v. Borden, 7 How. 1 ; 12 L. ed. 851 158, 1008, 1223, 1237, 1278. 
 
 Luxton v. North River Bridge Co., 153 U. S. 525; 14 Sup. Ct. Rep. 891; 
 
 38 L. ed. 808 763, 764 
 
 Lynch v. Clarke, 1 Sandf. Ch. 583, 649 275 
 
 Lynde v. Lynde, 181 U. S. 183: 21 Sup. Ct. Rep. 555; 45 L. ed. 810 206 
 
 Lyons v. Cunningham, 66 Cal. 42 259
 
 TABLE OF CASES. xlix 
 
 M. PAGE. 
 McAllister v. United States, 141 U. S. 174; 11 Sup. Ct. Rep. 949; 35 
 
 L. ed. 693 370 
 
 McArdle, Ex parte, 7 Wall. 506; 19 L. ed. 264 19, 976 
 
 McCall v. California, 136 U. S. 104; 10 Sup. Ct. Rep. 881; 34 L. ed. 391. 703 
 
 M'Clung v. Silliman, 6 Wh. 596 ; 5 L. ed. 340 141 
 
 McConnihay v. Wright, 121 U. S. 201; 7 Sup. Ct. Rep. 940; 30 L. ed. 
 
 932 1025 
 
 McCray v. United States, 195 U. S. 27; 24 Sup. Ct. Rep. 769; 49 L. ed. 
 
 78 19, 580, 607 
 
 McCready v. Virginia, 94 U. S. 391 ; 24 L. ed. 248 216, 501 
 
 MoCulloch v. Maryland, 4 Wh. 316 ; 4 L. ed. 579 59, 80, 577 
 
 McCullough v. Virginia, 172 U. S. 102; 19 Sup. Ct. Rep. 134; 43 L. ed. 
 
 182 913, 916, 917, 1089 
 
 McDonald v. Massachusetts, 180 U. S. 311; 21 Sup. Ct. Rep. 389; 45 
 
 L. ed. 542 831 
 
 McDonald v. Smalley, 1 Pet. 620; 7 L. ed. 287 1067 
 
 McElmoyle v. Cohen, 13 Pet. 312; 10 L. ed. 177 199 
 
 McGahey v. Virginia, 135 U. S. 662; 10 Sup. 'Ct. Rp. 972~; 34 L. ed. 
 
 304 913, 915, 108S 
 
 M'llvaine v. Coxe, 2 Cr. 280; 2 L. ed. 279; 4 Cr. 209; 2 L. ed. 598 290 
 
 McKane v. Durston, 153 U. S. 684; 14 Sup. Ct. Rep. 913; 38 L. ed. 
 
 867 217, 862 
 
 McKean, Ex parte, 3 Hughes (U. S.) , 23 226 
 
 McNeill v. Southern Railway Co., 202 U. S. 543; 26 Sup. Ct. Rep. 722; 
 
 50 L. ed. 1142 669, 728 
 
 McNiel, Ex parte, 13 Wall. 236 ; 20 L. ed. 624 661 
 
 McPherson, In re, 104 N. Y. 306 599 
 
 MrPherson v. Blacker, 146 U. S. 1 : 13 Sup. Ct. Rep. 3; 36 L. ed. 869.. 1126 
 
 Machine Co. v. Gage, 100 U. S. 676 ; 25 L. ed. 754 710 
 
 M:i<-on v. Patty, 57 Miss. 378 930 
 
 Magnolia, The, 20 How. 296 ; 15 L. ed. 909 1110 
 
 Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; 18 Sup. Ct. 
 
 Rep. 594; 42 L. ed. 1037 600, 888 
 
 Mi^wire v. Tyler, 8 Wall. 650 ; 19 L. ed. 320 979 
 
 Mahon v. Justice, 127 U. S. 700; 8 Sup. Ct. Rep. 1204; 32 L. ed. 283.228. 232 
 Maine v. Orand Trunk R. R. Co., 142 U. S. 217; 12 Sup. Ct. Rep. 121; 35 
 
 L. ed. 994 721, 950 
 
 Manchester v. Massachusetts, 139 U. S. 240; 11 Sup. Ct. Rep. 559; 35 
 
 L. ed. 159 1113 
 
 Manuel v. Wnlff. 152 U. S. 505; 14 Sup. Ct. Rep. 651; 38 L. ed. 532.. 283 
 
 Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60 2, 974, 999, 1176, 1192 
 
 1297, 1300 
 
 Marquez v. Frishie, 101 U. S. 473 ; 25 L. ed. 800 1200 
 
 M:u-<h.-ill v. ITolmos, 141 U. S. 589; 12 Sup. Ct. Rep. 62; 35 L. ed. 870.. 149 
 
 M:iHin, Ex parte, 7 "Nev. 140 634 
 
 Martin v. B. & 0. Ry., 151 U. S. 673; 14 Sup. Ct. Rep. 533: 38 L. ed. 
 
 311 980 
 
 iv
 
 TABLE OF CASES. 
 
 PAGE. 
 Martin v. District of Columbia, 205 U. S. 135; 27 Sup. Ct. Rep. 440; 51 
 
 L. ed. 743 940, 941 
 
 Martin v. Hunter's Lessee, 1 Wh. 304; 4 L. ed. 97 37, 46, 80, 121, 125 
 
 144, 992, 1052 
 
 Martin v. Mott, 12 Wh. 19 ; G L. ed. 537 1008, 1215, 1288 
 
 Martin v. Snowden, 18_ Gratt. 100 803 
 
 Mason. Ex parte, 105 U. S. 696; 26 L. ed. 1213 1204 
 
 Mason v. Missouri, 179 U. S. 328; 21 Sup. Ct. Rep. 125; 45 L. ed. 214. . 543 
 Mass. v. Western U. Tel. Co., 141 U. S. 40; 11 Sup. Ct. Rep. 889; 35 
 
 L. ed. 628 950 
 
 Mattingly v. District of Columbia, 97 U. S. 687; 24 L. ed. 1098 932 
 
 Mauran v. Insurance Co., 6 Wall. 1 ; 18 L. ed. 836 387, 1219 
 
 Maxwell v. Dow, 176 U. S. 581 ; 20 Sup. Ct Rep. 448; 44 L. ed. 597. .34, 181 
 
 800 
 May & Co. v. New Orleans, 178 U. S. 496; 20 Sup. Ct. Rep. 976; 44 
 
 L. ed. 1165 64(3 
 
 Mercantile Nat. Bank v. New York, 121 U. S. 138; 7 Sup. Ct. Rep. 826; 
 
 30 L. ed. 895 114 
 
 Mercer Co. v. Cowles, 7 Wall. 118 ; 19 L. ed. 86. . 14!) 
 
 Maynnrcl v. Hill, 125 U. S. 190; 8 Sup. Ct. Rep. 723: 31 L. ed. 654 894 
 
 Medley, Petitioner, 134 U. S. 160; 10 Sup. Ct. Rep. 384; 33 L. ed. 835. . 804 
 
 Mei-s v. MoClung, 9 Cr. 11 ; 3 L. ed. 639 lOOfl 
 
 Mi. -or Case, 193 U. S. 197; 24 Sup. Ct. Rep. 436; 48 L. ed. 679 19, 75t> 
 
 Meri wether v. Garrett, 102 U. S. 472; 26 L. ed. 197 575, 1086, 1105 
 
 Merritt v. Welsh, 104 U. S. 694; 26 L. ed. 896 1326 
 
 Merryman, Ex parte, Campbell's Reports, 246 68 
 
 Metropolitan Street R. Co. v. Tax Commissioners, 199 U. S. 1 ; 25 Sup. 
 
 Ct. Rep. 705 : 50 L. ed. 65 900 
 
 Miller v. Tnited States, 11 Wall. 268 ; 20 L. ed. 135 1220 
 
 Milligan, Ex parte, 4 Wall. 2 ; 18 L. ed. 281 1228, 1245 
 
 Mills, In ro, 135 U. S. 263; 10 Sup. Ct. Rep. 762; 34 L. ed. 107 077 
 
 Mills v. Duryee, 7 Cr. 481 ; 3 L. ed. 411 195 
 
 Minnesota v. Barber, 136 U. S. 313; 10 Sup. Ct. Rep. '862; 34 L. ed. 
 
 455 673, 6S9 
 
 Minor v. Happersett, 21 Wall. 162; 22 L. ed. 627 29, 164, 185, 258, 259 
 
 424, 537, 541, 800 
 Minnesota v. Hitchcock, 185 U. S. 373; 22 Sup. Ct. Rep. 650: 4f> L. ed. 
 
 054 1038. 1102. 1104 
 
 Minot v. Winthrop, 162 Mass. 113 538, 50!) 
 
 Mississippi v. Johnson, 4 Wall. 475: 18 L. ed. 437 1066, 1058, 1301 
 
 ?\Ii-si--ii)pi Railroad Commission v. Illinois Central R. Co., 203 U. S. 
 
 335 ; 27 Sup. Ct. Rep. 90 ; 51 L. ed. 209 143, 607 
 
 Missouri v. Illinois, 180 U. S. 208; 21 Sup. Ct. Rep. 331; 45" L. ed. 
 
 497 1046, 109-2 
 
 Mi-soiiri v. Illinois, 200 U. S. 490; 26 Snp. Ct. Rep. 268; 50 L. ed. 572. 1053 
 
 Missouri v. Iowa, 7 How. 660 ; 12 L. ed. 861 1043 
 
 Mi-snnri v. Lewis. 101 U. S. 22: 25 L. ed. 989 888 
 
 Missouri Pacific Ry. v. Humes, 115 U. S. 512; 6 Sup. Ct. Rep. 110; 29 
 
 L. ed. 463 . . 858
 
 TABLE OF CASES. li 
 
 PAGE. 
 Missouri Pacific Ry. Co. v. Larabee Flour Mills Co., 211 U. S. 612; 29 
 
 Sup. Ct. Rep. 214; 53 L. ed. 352 667, 669, 728 
 
 Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205; 8 Sup. Ct. Rep. 1161; 
 
 32 L. ed. 107 886 
 
 Mitchell v. Clark. 110 U. S. 633; 4 Sup. Ct. Rep. 170; 28 L. ed. 279.1252, 1266 
 
 Mitchell v. Great Works Milling & Manufacturing Co., 2 Story, 648 . . 35 
 
 Mitchell v. Harmony, 13 How. 115; 14 L. ed. 75 401, 1226, 1227, 1243 
 
 Mobile Co. v. Kimball, 102 U. S. 691; 26 L. ed. 238 % . . . .661, 932 
 
 Mobile & Ohio R. R. Co. v. Tennessee, 153 U. S. 486; 14 Sup. Ct. Rep. 
 
 968 ; 38 L. ed. 793 916 
 
 Mobile v. Watson, 116 U. S. 289; 6 Sup. Ct, Rep. 398; 29 L. ed. 620... 806 
 Monongahola Navigation Co. v. United States, 148 U. S. 312; 13 Sup. 
 
 Ct. Rep. 622; 37 L. ed. 463 1'19, 763 
 
 Montague v. Lo\vry, 193 U. S. 38; 24 Sup. Ct. Rep. 307; 48 L. ed. 608.. 756 
 
 Montello, The, 20 Wall. 430; 22 L. ed. 391 1111 
 
 Moore v. Illinois, 14 How. 13 ; 14 L. ed. 306 816, 998 
 
 Moore v. Quirk, 105 Mass. 49 119 
 
 Moore v. United States, 91 U. S. 270; 23. L. ed. 346 29 
 
 Moran v. New Orleans, 112 U. S. 69; 5 Sup. Ct. Rep. 38; 28 L. ed. 
 
 653 101, 700 
 
 Moore v. Wilkeson, 13 C'al. 478 1282 
 
 Morford v. Ungfr. 8 Iowa, 82 587, 597 
 
 Morgan's L. & T. R., etc., Co. v. Louisiana Board of Health, 118 U. S. 
 
 Ml : fi Sup. Ct. Rep. 1114; 30 L. ed. 237 661, 674 
 
 Morley v. Lake Shore, etc., R. Co., 146 U. S. 162; 13 Sup. Ct. Rep. 54; 
 
 30 T, <<!. 025 868 
 
 Morrill v. Jones, 106 U. S. 466; 1 Sup. Ct. Rep. 423; 27 L. ed. 267 1326 
 
 Morris' F-tate. 138 X. C. 259; 50 S. E. Rep. 682 599, 600 
 
 Moses Taylor. Th<*. 4 Wall. 411; 18 L. ed. 397 991, 1115 
 
 Mo,t vn v. Fabrigas. 1 Cowp. 180 401, 1227 
 
 Motes v. United States, 178 U. S. 458; 20 Sup. Ct. Rep. 993; 44 L. ed. 
 
 1150 192 
 
 Moultrie v. Hunt, 23 X. Y. 394, 390 1014 
 
 Mover v. Pen body. 212 I'. S. 78; 20 Sup. Ct. T(ep. 235; 53 L. ed. 410. . . 1240 
 
 Mrs. Alexander'* Cotton, 2 Wall. 404; 17 L. ed. 915 387, 1219, 1220 
 
 Midler v. Kansas, 123 I". S. 023; 8 Sup. Ct. Rep. 273; 31 L. ed. 205.680, 809 
 Muhlker v. New Vc.rk &. TInrl-m Itailroad Co., 197 U. S. 544; 25 Sup. 
 
 Ct. IJ.-p. 522: 40 L. ed. 872 ...872, 017 
 
 Municipal Suffrage, In ro, 1(50 Mass. .566 ' 13'2~> 
 
 M.iinn v. Illinois. <(t U. S. 113; 24 L. ed. 77 730, 909, 1230, 1247, 1323 
 
 Murdock v. Ward, 178 U. S. 139; 20 Sup. Ct. Rep. 775; 44 L. ed. 1009. . 108 
 
 607 
 
 Murphy v. Ramsay. 114 U. S. 15: r> Snp. Ct. Rop. 747; 29 L. ed. 47.366, 408 
 
 Murray v. Charleston, 9.'i C. S. 432; 24 L. od. 760 907 
 
 Murray v. The Charming Betsy, 2 Cr. 64 ; 2 L. od. 208 290 
 
 Murray v. Chicago & X. W. l?y. Co., 62 Fed. Rep. 24 727 
 
 Murray v. \Vil-on Distilling Co.. 213 U. S. Ml : 2!) Sup. Ct. II-p. 458... 1095 
 Murray's Lessee v. llobokeii Land & Improvement Co., 18 How. 272; 15 
 
 L. ed. 372. . 62, 624, 857, 864, 1278, 1279, 1288
 
 lii TABLE OF CASES. 
 
 N. PAGE. 
 
 Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96; 9 Sup. Ct. Rep. 
 
 28; 32 L. ed. 352 666 
 
 Nathan v. Louisiana, 8 How. 73 ; 12 L. ed. 992 633 
 
 National Bank v. Commonwealth, 9 Wall. 353 ; 19 L. ed. 701 98 
 
 National Bank v. County of Yankton, 101 U. S. 129; 25 L. ed. 1046. .366, 408 
 
 Neagle, In re, 135 U. S. 1; 10 Sup. Ct. Rep. 658; 34 L. ed. 55. .135, 139, 1152 
 
 Neal v. Delaware, 103 U. S. 370; 26 L. ed. 567 276, 530, 542, 884, 886 
 
 Neely v. Henkel, 180 U. S. 109; 21 Sup. Ct. Rep. 302; 45 L. ed. 448.384, 1008 
 
 Nelson v. Lagow, 12 How. 98 ; 13 L. ed. 909 97!) 
 
 Nereide, The, 9 Cr. 388; 3 L. ed. 769 1014 
 
 Neves v. Scott, 13 How. 268 ; 14 L. ed. 140. 1025 
 
 Nevitt, Re, 117 Fed. Rep. 448 1271 
 
 New Hampshire v. Louisiana, 108 U. S. 76; 2 Sup. Ct. Rep. 176; 27 
 
 L. ed. 656 1054, 1065, 1067, 1069, 1079 
 
 New Jersey Steam Navigation Co. v. Merchants' National Bank, 6 How. 
 
 344; 12 L. ed. 465 1107 
 
 New Jersey v. New York, 5 Pet. 284 ; 8 L. ed. 127 1041 
 
 New Jersey v. Wilson, 7 Cr. 164 ; 3 L. ed. 303 79, 897, 1086 
 
 Nettleton, Appeal of, 56 Atl. Rep. 565 599 
 
 New Orleans v. New Orleans Waterworks Co., 142 U. S. 79; 12 Sup. Ct. 
 
 Rep. 142; 35 L. ed. 943 895, 896 
 
 New Orleans v. Steamship Co., 20 Wall. 387; 22 L. ed. 354.. 387, 2218, 1219 
 
 1271 
 New Orleans v. Stempel, 175 U. S. 309; 20 Sup. Ct. Rep. 110; 44 L. ed. 
 
 174 : 962 
 
 New Orleans v. United States, 10 Pet. 662 ; 9 L. ed. 573 493 
 
 New Orleans v. Winter, 1 Wh. 91 ; 4 L. ed. 44 273, 984 
 
 New Orleans Waterworks v. Louisiana Sugar Ref. Co., 125 U. S. 18 ; 8 
 
 Sup. Ct. Rep. 741; 31 L. ed. 607 897, 916 
 
 Newton v. Commissioner, 100 U. S. 548 ; 25 L. ed. 710 909 
 
 New York v. Compagnie Gent-rale Transatlantique, 107 U. S. 59 ; 2 Sup. 
 
 Ct. Rep. 87 ; 27 L. ed. 383 800 
 
 New York v. Miln, 11 Pet. 102; 9 L. ed. 648. .12, 83. 633, 655, 661, 688, 714 
 New York v. N. Y. C. & H. R. R. Co., 202 U. S. 584; 26 Sup. Ct. Rep. 
 
 714; 50 L. ed. 1155 9r,4 
 
 New York C. R. Co. v. Lockwood, 17 Wall. 357; 21 L. ed. 627 1038 
 
 New York Indians, 5 Wall. 761 ; 18 L. ed. 708 307 
 
 New York Life Ins. Co. v. Craven, 178 U. S. 389; 20 Sup. Ct. Rep. 962; 
 
 44 L. ed. 1116 635 
 
 New York, N. H. & H. R. Co. v. New York, 165 U. S. 628; 17 Sup. Ct. 
 
 Rep. 418; 41 L. ed. 483 666 
 
 N. Y., etc., Ry. v. N. Y., 165 U. S. 628; 17 Sup. Ct. Rep. 418; 41 L. ed. 
 
 853 666 
 
 N. Y., etc., R. R. Co. v. Pennsylvania, 158 U. S. 440; 15 Sup. Ct. Rep. 
 
 900, 39 L. ed. 1046 721 
 
 New York ex rel. Metropolitan Street Railway Co. v. Tax Commis- 
 sioners, inn U. S. 1 . 25 Sup. Ct. Rep. 705 ; 50 L. ed. 65 906, 068 
 
 Nicol v. Ames, 173 U. S. 509; 19 Sup. Ct. Rep. 522; 43 L. ed. 786 618 
 
 H20. 707
 
 TABLE OF CASES. Hii 
 
 PAGE. 
 
 Nightingale, Petitioner, 11 Pick. 168 1295 
 
 Norfolk W. R. Co. v. Sims, 191 U. S. 441 ; 24 Sup. Ct. Rep. 151 ; 48 L. 
 
 ed. 254 687, 707 
 
 Northern Securities Co. v. United States, 193 U. S. 197; 24 Sup. Ct. 
 
 Rep. 436 ; 48 L. ed. 679 .19, 756 
 
 Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659; 24 L. ed. 
 
 1036 898, 902 
 
 Northwestern U. Packet Co, v. St. Louis, 100 U. S. 423; 25 L. ed. 688 661 
 Norton v. Shelby Co., 118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 
 
 178 . . ". 9 
 
 Norwich, etc. v. Wright, 13 Wall. 104; 20 L. ed. 585 1118 
 
 Norwood v. Baker, 172 U, S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 
 
 443 931, 933, 939, 942 
 
 Nunnemacher v. State, 129 Wis. 190 599, 600 
 
 0. 
 
 Oceanic Steamship Navigation Co. v. Stranahan, 214 U. S. 320; 29 Sup. 
 
 Ct. Rep. 671: 53 L. ed. 1013 1330 
 
 Ogden v. Saunders, 12 Wh. 213; 6 L. ed. 606 20, 775 
 
 Ohio Life Insurance & Trust Co, v. Debolt, 16 How. 416; 14 L. ed. 
 
 997 914, 924 
 
 Ohio & Mississippi R. R. Co. v. Wheeler, 1 Black, 2S6; 17 L. ed. 130.. 985 
 
 Ohio R. R. Co. v. Wheeler, 1 Black, 286; 17 L. ed. 130 986 
 
 Olcott v. The Supervisors, 16 Wall. 678; 21 L. ed. 382 1033 
 
 Oliver v. Worcester, 102 U. S. 489 117 
 
 O; iijion* of Justices, 44 Me. 507 259 
 
 Orchard v. Alexander, 157 U. S. 372; 15 Sup. Ct. Rep. 635; 39 L. ed. 
 
 737 HC2 
 
 Oregon v. Hitchcock, 202 U. S. 60; 26 Sup. Ct. Rep. 568; 5& L. ed. 
 
 935 1102,1104 
 
 Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U. S. 1 ; 9 Sup. Ct Rep. 
 
 409 ; 32 L. ed. 837 898 
 
 Orient Insurance Co. v. Daggs, 172 U. S. 557; 19 Sup. Ct. Rep. 281; 
 
 43 L. ed. 552 221, 88S 
 
 Osborn v. Bank of United States, 9 Wh. 738; 6 L. ed. 204 986, 988, 1076 
 
 1083, 1099 
 
 (M.orn v. Florida, 164 U. S. 650; 17 Sup. Ct. Rep. 214; 41 L. ed. 586. . 701 
 
 Osborn v. Tinted States, 01 U. S. 474; 23 L. ed. 388 1171 
 
 Osborne v. Mohilc. Hi Wall. 47'.i : 21 L. ed. 470 700 
 
 Oteiza y Cortes v. Jacobus. 130 U. S. 330; 10 Sup. Ct. Rep. 1031; 34 L. 
 
 ed. 4C.4 1288 
 
 Ouachita & M. R. Packet Co. v. Aiken, 121 U. S. 444; 7 Sup. Ct. Rep. 
 
 907 ; 30 L. ed, 976 661 
 
 Owensboro National Bank v. City of Owensboro, 173 U. S. 664; 19 Sup. 
 
 Ct. FN-p. 687; 4:$ L. ed. S50 97, 110 
 
 Ozan LuTiil.er ( '<>. v. Union Co. Nat. Bank. 1 U> F.-d. 344 101
 
 liv TABLE OF CASES. 
 
 P. PAGE. 
 Pabst Brewing Co. v. Crenshaw, 198 U. S. 17; 25 Sup. Ct. Rep. 552; 49 
 
 L. ed. 925 687 
 
 Pace v. Burgess, 92 U. S. 372 ; 23 L. ed. 657 612 
 
 Pacific Insurance Co. v. Soule, 7 Wall. 433; 19 L. ed. 95 582, 615 
 
 Pacific Mail SS. Co. v. Goliffe, 2 Wall. 450; 17 L. ed. 805 6(51 
 
 Pacific Railroad Removal Cases, 115 U. S, 1; 5 Sup. Ct. Rep. 1113; 29 
 
 L. ed. 319 986 
 
 Pacific Railway Commission Case., 32 Fed. Rep. 241 747 
 
 Packet Co. v. Keokuk, 95 U. S. 80; 24 L. ed. 377 580 
 
 Packet Co. v. St. Louis, 100 U. S. 423; 25 L. ed. 088 580 
 
 Palmer v. Hixon, 74 Me. 447 770 
 
 Palmer v. McMahon, 133 U. S. 600; 10 Sup. Ct. Rep. 324; 33 L. ed. 
 
 772 106 
 
 Paquete Habana, The, 175 U. S. 677; 20 Sup. Ct. Rep. 290; 44 L. ed. 
 
 320 1017 
 
 Parkersburg & O. R. Transp. Co. v. ParkerSburg, 107 U. S. 691 ; 2 Sup. 
 
 Ct. Rep. 732; 27 L. ed. 584 661 
 
 Parsons v. Armor, 3 Pet. 413 ; 7 L. ed. 724 841 
 
 Parsons v. United States, 167 U. S. 324; 17 Sup. Ct. Rep. 880; 42 L. 
 
 ed. 185 1181, 11SG 
 
 Passenger Cases, 7 How. 283; 12 L. ed. 702 52, 498, 658, 714 
 
 Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345; 18 Sup. Ct. 
 
 Rep. 862; 43 L. ed. 191 673 
 
 Patch v. Wabash Ry, Co., 207 U. S. 277; 28 Sup. Ct. Rep. 80; 52 L. 
 
 ed. 204 986 
 
 Patterson v. Colorado, 205 U. S. 454; 27 Sup. Ct. Rep. 556: 51 L. ed. 
 
 879 844 
 
 Patterson v. Kentucky, 97 U. S. 501 ; 24 L. ed. 1115 100, 792 
 
 Patton v. Brady, 184 U. S. 608; 22 Sup. Ct. Rep. 493; 46 L. ed. 713. .19, 613 
 
 Paul v. Virginia, 8 Wall. 169; 19 L. ed. 357 213, 218, 634, 696. 60S 
 
 Paulsen v. Portland. 149 U. S. 30; 13 Sup. Ct. Rep. 750; 37 L. ed. 637 932 
 
 Payne v. Hook, 7 Wall. 425 ; 19 L. ed. 260 1025 
 
 Pedrick v. Bailey, 12 Gray, 161 1295 
 
 Peik v. Chicago, etc., R. R. Co., 94 U. S. 164; 24 L. ed. 97. .. .730, 909, 910 
 Pembina Silver Mining Co. v. Pennsylvania, 125 U. S. 181; 8 Sup. Ct. 
 
 Rep. 737; 31 L. ed. 650...* 697, 882 
 
 Pendleton v. State, 6 Ark. 509 2Gi> 
 
 Penhallow v. Doane, 3 Ball. 54 ; 1 L. ed. 507 79 
 
 Pennoyer v. McConnaughy, 140 U. S. 1; 11 Sup. Ct. Rep. 699; 35 L. rd. 
 
 363 1079, 1082, 1002 
 
 Pennoyer v. Neff, 95 U. S. 714 ; 24 L. ed. 565 201, 210, 858 
 
 Pennsylvania Co., In re, 137 U. S. 451; 11 Sup. Ct. Rep. 141; 34 L. ed. 
 
 738 996 
 
 Pennsylvania v. Baltimore. 1 Vesey, 44 1040 
 
 Pennsylvania v. W. & B. Bridge Co., 18 Wall. 421: 15 L. ed. 435 771 
 
 Pennsylvania v. Wheeling & B. Bridge Co., 13 How. 518; 14 L. ed. 
 
 249 10o4 
 
 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 ; 
 
 24 L. ed. 708 631, 697, 782
 
 TABLE OF CASES. lv 
 
 PAGE. 
 
 People V. Antonio, 27 Cal. 404 307 
 
 People v. Assessors, 150 X. Y. 417 100 
 
 People v. Brooklyn, 4 X. Y. 419 932 
 
 People v. Campagnie (;<'m'rale Tr an satl antique, 107 U. S. 59; 2 Sup. Ct. 
 
 Rep. 87; 27 L. ed. 383 672, 714 
 
 People v. De La Guerra, 40 Cal. 311 200 
 
 People, The v. Gerke, 5 Cal. 381 494 
 
 IVoj,],. v. Me -Leod. 1 Hill, 377 130, 133 
 
 People v. Miner, 144 111. 308 819 
 
 People v. Oldtown, 88 III. 202 25!) 
 
 People v. Raymond. 34 Cal. 492 034 
 
 Peoj :le v. Robert-. 159 X. Y. 70 100 
 
 People v. Roberts, 154 X. Y. 101 ; 159 N. Y. 70 9(i7 
 
 Perry v. Haines, 191 U. S. 17: 24 Sup. Ct. Rep. 8; 48 L. ed. 73. .1111, 1112 
 Pettibone v. Xichols, 203 U. S. 192; 27 Sup. Ct. Rep. Ill; 51 L. ed. 
 
 148 .;', 226, 230 
 
 Philadelphia v. W. I*. Tel. Co.. 32 C. C. A. 24(5 720 
 
 Philadelphia Fire Assn. v. Xe\v York, 119 U. S. 110; 7 Sup. Ct. Rep. 108; 
 
 30 L. ed. 342 634 
 
 Philadelphia & R. R. Co. v. Pennsylvania, 15 Wall. 232; 21 L. ed. 146 968 
 
 Philadelphia. & R. R. Co. v. Pennsylvania. 15 Wall. 284; 21 L. ed. 1(>4.. 968 
 Philadelphia SS. ( o. v. Pennsylvania, 122 U. S. 326; 7 Sup. Ct. Rep. 
 
 1118; 30 L. ed. 1200 721 
 
 Philadelphia v. T. R. Co. v. Stimpson, 14 Pet. 448; 10 L. ed. 535 1288 
 
 Picquet v. Swan. 5 Mason, 35 272 
 
 Pittsburgh, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421; 14 Sup. 
 
 Ct. Rep. 1114: 38 L. ed. 1031 862, 950 
 
 Pleasant Township v. Aetna Life Insurance Co., 138 U. S. 67; 11 Sup. 
 
 Ct. Rep. 215 : 34 L. ed. 8(14 925 
 
 Ptessy \. l-Vj-guson, 13 U. S. 537; 16 Sup. Ct. Rep. 1138; 41 L. ed. 
 
 256 852, 889 
 
 Plumber v. Coler, 178 U. S. 115; 20 Sup. Ct. Rep. 829; 44 L. ed. 998.. 108 
 
 606, 883 
 Pluinley v. Massachusetts, 155 U. S. 4C1; 15 Sup. Ct. Rep. 154: 39 L. 
 
 ed. 223 694 
 
 Poiiidr::<er v. Greenhow. 114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 
 
 IS.", 880, 1081, 1083, 1085, 1002 
 
 Polk's Lessee v. Wendell, 5 Wh. 293 ; 5 L. ed. 92 1023 
 
 Pollard v. Kihbe, 14 Pet. 353; 10 L. ed. 490 308 
 
 Pollard's Lessee v. Il'igan, 3 TIow. 212: 11 L. ed. 565 241, 493 
 
 Pollock v. Bridgeport S. B. Co., 114 U. S. 411; 5 Sup. Ct. Rep. 881; 29 
 
 L. ed. ]i: ma 
 
 Pollock v. Farmers' Loan A Tru>t Co., 157 U. S. 429; 15 Sup. Ct. 
 
 Rep. 073 : 39 L. ed. 759 107. 114, 613 
 
 Pollock v. Farmer's Loan & Trust Co., 158 U. S. 601; 15 Sup. Ct. Rep. 
 
 912: 30 L. ><1. 110S (502. 019, 767 
 
 Pollock v. Farmers' Loan & Trust Co.. 157 U. S. 429; 15 Sup. Ct. 
 
 Rep. 673; 39 L. ed. 759. and 15 T. S. 601; 15 Sup. Ct. Rep. 
 
 912; 39 L. ed. 1108 616
 
 Ivi TABLE OF CASES. 
 
 PAGE. 
 Pope v. Williams, 193 U. S. 621; 24 Sup. Ct, Rep. 573; 48 L. ed. 817. . 539 
 
 Poole v. Fleeger, 11 Pet. 185; 9 L. ed. 680 235 
 
 Post v. Supervisors, 105 U. S. 667 ; 26 L. ed. 1204 1023 
 
 Postal Telegraph Cable Co. v. Adams, 155 U. S. 688; 15 Sup. Ct. Rep. 
 
 268; 39 L. ed. 311 697, 702, 715, 723 
 
 Potter v. National Bank, 102 U. S. 163; 26 L. ed. 111. 1027 
 
 Pound v. Turck, 95 U. S. 459 ; 24 L. ed. 525 661 
 
 Powell v. Pennsylvania, 127 U. S. 678; 8 Sup. Ct. Rep. 992; 32 L. ed. 
 
 253 23, 694 
 
 Prentiss v. Brennan, 2 Blatchf. 162 260, 272 
 
 Presser v. Illinois, 116 U. S. 252; 6 Sup. Ct Rep. 580; 29 L. ed. 615.. 843 
 
 Prevost v. Greenaux, 19 How. 1 ; 15 L. ed. 572 497 
 
 Price v. Abbott, 17 Fed. Rep. 506 i 1180 
 
 Prigg v. Pennsylvania, 16 Pet. 539; 10 L. ed. 1060 32, 83, 145, 234, 993 
 
 Prize Cases, 2 Black, 635; 17 L. ed. 459 387, 796, 1208, 1219, 1220 
 
 Protector, The, 12 Wall. 700 ; 20 L. ed. 463 1209 
 
 Providence Bk. v. Billings, 4 Pet. 514; 7 L. ed. 939 1086 
 
 Providence & X. Y. SS. Co. v. Hill Mfg. Co., 109 U. S. 578; 3 Sup. Ct. 
 
 Rep. 379; 27 L. ed. 1038 1118 
 
 Provident Institution v. Massachusetts, 6 Wall. 611; 18 L. ed. 907 106 
 
 Public Clearing House v. Coyne, 194 U. S. 497; 24 Sup. Ct. Rep. 789; 
 
 48 L. ed. 1092 63, 1283, 1292 
 
 Pullen v. Commissioners of Wake Co., 66 N. C. 361 599 
 
 Pullman Co. v. Adams, 189 U. S, 420; 23 Sup. Ct. Rep. 494; 47 L. ed. 
 
 477 701 
 
 Pullman Co. v. Kansas, 216 U. S. 54; 30 Sup. Ct. Rep. 232 221, 701, 725 
 
 Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 18; 11 Sup. Ct, Rep. 
 
 876; 35 L. ed. 613 717, 719, 950, 951, 954 
 
 Pulman Co. v. Kansas, 216 U. S. 56 ; 30 Sup. Ct. Hep. 232 958 
 
 Q. 
 
 Queen v. Hertford College, 3 Q. B. D. 693 35 
 
 Quincy v. Kennard, 151 Mass. 563 1295 
 
 R. 
 
 Radich v. Hutchins, 95 U. S. 210: 24 L. ed. 409 834 
 
 Rahrer, In re, 140 U. S. 545; 11 Sup. Ct. Rep. 865; 35 L. ed. 572.. 110, 682 
 
 Railroad v. Maryland, 21 Wall. 456 : 22 L. ed. 678 724 
 
 R. R. Co. v. Board of Supervisors, 93 U. S. 595; 23 L. ed. 814 899 
 
 Railroad Co. v. Georgia. 98 U. S. 359; 25 L. ed. 185 1023 
 
 Railroad Co. v. Husen, 95 U. S. 465; 24 L. ed. 527 631, 674 
 
 Railroad Tax Cases, 92 U. S. 575 ; 23 L. ed. 663 625 
 
 R. R. Telegraphers v. Louisiana & N. Ry. Co., 148 Fed. Rep. 437 747 
 
 Railway Commission Cases, 116 U. S. 307; 6 Sup. t. Rep. 334; 29 L. 
 
 ed. 636 901 
 
 Rails Co. v. United States, 105 U. S. 733; 26 L. ed. 1220 896 
 
 Rapier, Ex parte, 143 U. S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93. ... Ill 
 
 788, 843
 
 TABLE OF CASES. Ivii 
 
 PAGE. 
 
 Rasmussen v. Idaho, 181 U. S. 198; 21 Sup. Ct. Rep. 594; 45 L. ed. 820 675 
 Rassmussen v. United States, 197 U. S. 516; 25 Sup. Ct. Rep. 514; 49 
 
 L. ed. 862 438 
 
 Raymond v. Thomas, 91 U. S. 712; 23 L. ed. 434 401, 1225 
 
 Reagan v. Trust Co., 154 U. S. 418; 14 Sup. Ct. Rep. 1062; 38 L. ed. 1030 731 
 Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; 14 Sup. Ct. Rep. 
 
 1047; 38 L. ed. 1014 1091, 1092 
 
 Reagan v. United States, 182 U. S. 419; 21 Sup. Ct. Rep. 842; 45 L. 
 
 ed. 1102 1184 
 
 Rearick v. Pennsylvania, 203 U. S. 507; 27 Sup. Ct. Rep. 159; 51 L. ed. 
 
 205 708 
 
 Rector of Christ Church v. Philadelphia Co., 24 How. 300; 16 L. ed, 602 890 
 
 Reed, Ex parte. 100 U. S. 13 ; 25 L. ed. 538 1330 
 
 Rees v. Watertown, 19 Wall. 107 ; 22 L. ed. 72 1068, 1105 
 
 Reetz v. Michigan, 188 U. S. 505; 23 Sup. Ct. Rep. 390; 47 L, ed. 
 
 503 862, 864 
 
 Reggel, Ex parte, 114 U. S. 642; 5 Sup. Ct. Rep. 1148; 29 L. ed. 250.. 226 
 
 Reid v. Colorado, 187 U. S. 137; 23 Sup. Ct. Rep. 92; 47 L. ed. 108 675 
 
 Reilly v. Lamar, 2 Cr. 344 ; 2 L. ed. 300 273 
 
 Re Lockwood, 154 U. S. 116; 14 Sup. Ct. Rep. 1082; 38 L. ed. 929 886 
 
 Respublica v. De Longchamps, 1 Ball. Ill : 1 L. ed. 59 1014 
 
 Respublica v. Oswald, 1 Ball. 319 844 
 
 Reynolds v. United States, 98 U. S. 145; 25 L. ed. 244 370, 408, 410, 841 
 
 Rhode Island v. Massachusetts, 12 Pet. 657; 9 L. ed. 1233 1040, 1041, 1050 
 
 Rhodes v. Iowa, 170 U. S. 412; 18 Sup. Ct. Rep. 664; 42 L. ed. 1088. . . 684 
 
 Rice v. Foster, 4 Harr. 479 154, 155 
 
 Richmond & A. R. Co. v. R. A. Patterson Tobacco Co., 169 U. S. 311; 18 
 
 Sup. Ct Rep. 335 : 42 L. ed. 759 667 
 
 Riverside Oil Co. v. Hitchcock, 190 U. S. 316; 29 Sup. Ct. Rep. 698; 47 
 
 L. ed. 1074 1299 
 
 Roach v. Riswick. Me Arthur & Mackay, 171 376 
 
 Robbins v. Taxing District of Shelby Co., 120 U. S. 489; 7 Sup. Ct. Rep. 
 
 502 : 30 L. ed. 694 643, 663, 705 
 
 Robert W. Parsons, The, 191 U. S. 17; 24 Sup. Ct. Rep. 8; 48 L. ed. 
 
 73 1112 
 
 R'.berN v. Reilly. 110 U. S. SO: 6 Sup. Ct. Rep. 291 ; 29 L. ed. 544. .277, 233 
 Robertson v. Baldwin, 165 U. S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 
 
 715 : 853, 99B, 1052 
 
 Robinson, Ex pnrte. 10 Wall. 513: 22 L. ed. 205 809 
 
 Robinson. Ex parte. 6 McLean. 3.*) 5 1270 
 
 Robinson v. Campbell. 3 Wli. 212: 4 L. e.l. 372 1025, 1026 
 
 Rodd v. Heart. 21 Wall. 55S : 22 L. ed. fi.">4 1015 
 
 Ropes v. Clinch, 8 Blatchf. 304: 1-V,|. CfcM X<>. 12,041 487 
 
 Rose v. Himely. 4 Cr. 241 : 2 L. ed. 608 1006 
 
 Ross. In re. 140 V. S. 453: 11 Sup. Ct. Rep. 897; 35 L. ed. 581 400 
 
 Rowan v. Runnels. 5 How. 134: 12 L. ed. 85 015. 022 
 
 Royall. Ex parte. 117 U. S. 241: 6 Sup. Ct. R.-p. 734; 20 L. cd. Sfi8.. 136 
 Rankle v. United State*. 122 V. S. 543: 7 Sup. Ct. R*p. 1141; 30 L. ed. 
 
 1167 1160
 
 Iviii TABLE OF CASES. 
 
 PAGE. 
 
 Russell v. Southard, 12 How. 139 ; 13 L. ed. 927 1025 
 
 Ryder v. Holt. 128 U. S. 525; 9 Sup. Ct. Rep. 145; 32 L. ed. 529 7 1)4 
 
 S. 
 
 St. Clair County Turnpike Co. v. Illinois, 96 U. S. 63 ; 24 L. ed. 651 . . 898 
 
 St. Lawrence, The, 1 Black, 522; 17 L. ed. 180 1118 
 
 St. Louis, etc., Co. v. Mathews, 165 U. S. 1; 17 Sup. Ct. Rep. 243; 41 
 
 L. ed. 611 88t> 
 
 St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U, S. 281; 
 
 28 Sup. Ct. Rep. 616 ; 52 L. ed. 1061 744, 1322 
 
 St. Louie & San Francisco Ry. v. James, 161 U. S. 545; 16 Sup. Ct. 
 
 Rep. 621 ; 40 L, ed. 802 986 
 
 St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142; 21 Sup. Ct. Rep. 
 
 575; 45 L. ed. 788 807 
 
 Sanborn, Re, 148 U. S. 222; 13 Sup. Ct. Rep. 577; 37 L, ed. 429 127-1 
 
 Sands v. Manistee River Imp. Co., 123 U. S. 288; 8 Sup. Ct. Rep. 113; 
 
 31 L. ed. 149 241 
 
 Santa Clara v. S. Pacific R. R. Co., 18 Fed. Rep. 385 5U3 
 
 Santiago v. Nogueras, 214 U. S. 260; 29" Sup. Ct. Rep. 608; 53 L. ed. 
 
 989 1224 
 
 Santissima Trinidad, The, 7 Wh. 283; 5 L. ed. 454 290, 1006 
 
 Santo v. Iowa, 2 Iowa. 105 1 325 
 
 Sapphire, The, 1 1 Wall. 164 ; 20 L. ed. 127 1 0.v5 
 
 Satti rlee v. Matthewson, 2 Pet. 380 ; 7 L. ed. 458 891 
 
 Sauer v. City of New York, 206 U. S. 536; 27 Sup. Ct. Rep. 686; 51 L. 
 
 ed. 1176 919 
 
 Savings & Loan .Society v. Multnomah Co., 169 U. S. 421 : 18 Sup. Ct. 
 
 Rep. 392; 42 L. ed. 803 960, 963 
 
 Sawyer v. Concordia, 12 Fed. 754 896 
 
 Sawyer v. Davis. 136 Mass. 239 1295 
 
 Saylt's v. Davis. 22 Wis. 225 119 
 
 Schick v. United States, 195 U. S. 65; 24 Sup. Ct. Rep. 826; 49 L. ed. 
 
 99 814 
 
 Scholey v. Rew, 23 Wall. 331 ; 23 L. ed. 99 615, 620 
 
 Schollenberger v. Pennsylvania, 171 U. S. 1; 18 Sup. Ct. Rep. 757; 43 
 
 L. eri. 49 645, (503 
 
 Scotland, The, 105 U. S. 24 : 26 L. ed. If 01 1118 
 
 Scott v. Donald, 1G5 U. S. 58; 17 Sup. Ct. Rep. 265; 41 L. ed. 632.. 673 
 
 684, 1083, 1002 
 
 Scott v. Jones, 5 How. 343 : 12 L. ed. 181 322 
 
 Scott v. McXeal. 154 U. S. 34; 14 Sup. Ct. Rep. 1108; 38 L. ed. 896.. 860 
 
 Soars v. The Scotia. 14 Wall. 170; 20 L. ed. 822 1014, 1010 
 
 S-rurity Mutual Life Insurance Co. v. Prewitt, 202 U. S. 24(5; 26 Sup. 
 
 Ct. Rep. 010; 50 L, pel. 1013 147, 699 
 
 Seibort v. Lewi?. 122 I*. S. 2S4 : 7 Sup. Ct. Rep. 1190; 30 L. ed. 1101.. 89(5 
 
 Sere v. .Pitot. 6 Cr. 332 : 3 L. ed. 240 351, 359, 365 
 
 Shanks v. Dupont. 3 Pet. 242 : 7 L. ed. 066 290 
 
 Sharp v. State, 40 S. W. Rep. 752 1271
 
 TABLE OF CASES. lix 
 
 PAGE. 
 
 Sharpless v. Mayor, 21 Pa. St. 147 586 
 
 Shawnee Compress Co. v. Anderson, 209 U. S. 423; 28 Sup. Ct. Rep. 
 
 572 ; 52 L. ed. 8G5 "61 
 
 Sheffield Furnace Co. v. Witherow, 149 U. S. 574; 13 Sup. Ct. Rep. 936; 
 
 37 L. ed. 853 1026 
 
 Shelby County v. Guy, 11 Wh. 361; 6 L. ed. 495 1022, 1029 
 
 Shcppard v. Taylor, 5 Pet. 675 ; 8 L. ed. 269 1280 
 
 Sherlock v. Ailing, 93 U. S. 99; 23 L. ed. 819 728, 745. 1114 
 
 Shively v. Bowlby, 152 U. S. 1 ; 14 Sup. Ct. Rep. 548; 38 L. ed. 331.241, 335 
 Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. 
 
 ed. 170 932, 1179 
 
 Siebold, Ex parte, 100 U. S. 371; 25 L. ed. 717 90, 149, 545, 1154 
 
 Shoshone Mining Co. v. Rutter, 177 U. S. 505; 20 Sup. Ct. Rep. 726; 
 
 44 L. ed. 864 989 
 
 Shurtleff v. United States, 189 U. S. 311; 23 Sup. Ct. Rep. 535; 47 L. 
 
 ed. 828 1184 
 
 Sinking Fund Cases. 09 U. S. 700 : 25 L. ed. 496 20, 876, 1264 
 
 Siren, The v. United States, 7 Wall. 152; 19 L. ed. 129 1096 
 
 Slater v. National 11. R. Co., 194 U. S. 120; 24 Sup. Ct. Rep. 581; 48 
 
 L. ed. 900 200 
 
 Slaughter House Ca^es. 10 Wall. 36; 21 L. ed. 394.. 177, 276, 850, 851, 854 
 Smelting, etc., Co. v. Colorado, 204 U. S. 103; 27 Sup. Ct. Rep. 198; 51 
 
 L. ed. 393 895 
 
 Smelting Co. v. Kemp, 104 U. S. 636; 26 L. ed. 875 63, 1280 
 
 Smith v. Alabama, 124 U. S. 465; 8 Sup. Ct. Rep. 564; 31 L. ed. 508.. 29 
 
 , 666, 1037 
 
 Smith v. Moody, 26 Ind. 299 259 
 
 Smith v. Reeves, 178 U. S. 436; 20 Sup. Ck Rep. 919; 44 L. ed. 
 
 1140 1069, 1083 
 
 Smith v. St. Louis, etc., Ry. Co., 181 U. S. 248; 21 Sup. Ct. Rep. 603; 
 
 45 L. ed. o47 675 
 
 Smith v. United States, 1 Wash. Ter. 269 1060 
 
 Smith v. Whitney, 116 U. S. 167; 6 Sup. Ct. Rep. 570; 29 L. ed. 601.. 1208 
 
 1330 
 
 Smyth v. Ames, 169 U. S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819.. 149 
 
 731, 732, 874, 1092 
 
 Snow v. United States. 18 Wall. 317 ; 21 L. ed. 784 365 
 
 Snydor v. Bettman. 100 U. S. 240; >>:\ Sup. Ct. Rep. 803; 47 L. ed. 1035. 606 
 
 Society for Savings v. Coite, 6 Wail. CO"; 18 L. ed. 903 106, 967 
 
 Soon iiins* v . Crowley, 113 U. S. 703; 5 Sup. Ct. Rep. 730; 28 L. ed. 
 
 1145 .' 886 
 
 South Carolina v. fi.-nrgia, 03 U. S. 4; 23 L. ed. 782 1043 
 
 South Carolina v. United States, '199 U. S. 437; 26 Sup. Ct. Rep. 110; 
 
 50 L. ed. 261 28, 46, 619, 1095 
 
 South Dakota v. North Carolina, 192 U. S. 286; 24 Sup. Ct. Rep. 269; 
 
 48 L. ed. 448 > 106rt 
 
 South Ottawa v. Perkins, 04 U. S. 260; 24 L. ed. 154- 1023 
 
 Southern Pacific Pxy. v. Denton, 146 U. S. 202: 13 Sup. Ct. Rep. 44; 
 
 30 L. od. 012 osn 
 
 Spalding v. Vilas. 161 V. S. 4S3: 10 Sup. Ct. Rep. 631: 40 L. ed. 780 1313
 
 Ix TABLE OF CASES. 
 
 PAGE. 
 
 Spencer v. Board, 8 D. C. 169 259 
 
 Spencer v Merchant, 125 U. S. 345; 8 Sup. Ct. Rep. 921; 31 L. ed. 763. 932 
 
 Spies, Ex parte, 123 U. S. 131; 8 Sup. Ct. Rep. 22; 31 L. ed. 80 183 
 
 Spragins v. Houghton, 3 111. 377 259 
 
 Spratt v. Spratt, 4 Pet. 393; 7 L. ed. 897 281 
 
 Spreckles Sugar Refining Co. v. McClain, 192 U. S. 397 ; 24 Sup. Ct. Rep. 
 
 376; 48 L. ed. 496 619 
 
 Springer v. United States, 102 U. S. 586; 26 L. ed. 253 63, 616, 1279 
 
 Springville v. Thomas, 166 U. S. 707; 17 Sup. Ct. Rep. 717; 41 L. ed. 
 
 1172 408 
 
 St. Louis v. Western Union Tel. Co., 148 U. S. 92; 13 Sup. Ct. Rep. 
 
 485; 37 L. ed. 380 379, 702 
 
 Stanley" v. Schwalby, 162 U. S. 255; 16 Sup. Ct. Rep. 754; 40 L. ed. 
 
 960 1102, 11C5 
 
 Stanly County v. Coler, 190 U. S. 347; 23 Sup. Ct. Rep. 811; 47 L. ed. 
 
 1126 925 
 
 Stanton v. Wilkeson, 8 Ben. 357 1180 
 
 State v. Alston, 94 Tenn. 674 599 
 
 State v. Bowen, 45 Minn. 145 819 
 
 State v. Carman, 63 Iowa, 130. 814 
 
 State v. Claiborne, 1 Meigs (Tenn. ) , 331 266 
 
 State v. Clark, 30 Wash. 439 599 
 
 State v. Dalrymple, 70 Ind. 294 59.") 
 
 State v. Hamlin, 86 Me. 495 .' 599 
 
 State v. Henderson, 160 Mo. 190 599 
 
 State v. Hensley, 79 N. E. Rep-. 462 816 
 
 State v. Layne, 96 Tenn. 668 819 
 
 State v. Mansfield, 41 Mo. 470 814 
 
 State v. Manuel, 3 Dev. & Bat. 20 265 
 
 State v. Morrill, 16 Ark. 384 12G9 
 
 State v. Noyes, 30 N. H. 279 1317 
 
 State v. Vinsonhaler (Nebr.) , 105 N 8 . W. Rep. 472 600 
 
 State v. Wapello, 13 Iowa, 388 586 
 
 State Bank of Ohio v. Knoop, 16 How. 369; 14 L. ed. 977 914 
 
 State Board of Assessors v. Comptoir National D'Escompte, 191 U. S. 
 
 388 ; 24 Sup. Ct. Rep. 109 ; 48 L. ed. 232 965 
 
 State Freight Tax Case, 15 Wall. 232; 21 L. ed. 146 663, 720, 968 
 
 State Railroad Tax Cases, 92 U. S. 575; 23 L. ed. 663 598, 725, 967 
 
 State of South Carolina v. United States, 199 U. S. 437; 26 Sup. t. Rep. 
 
 110; 50 L. ed. 261 115 
 
 State Tax on Foreign Held Bonds, 15 Wall. 300; 21 L. ed. 179. .955, 961, 963 
 
 State Tax o Railway Gross Receipts, 15 Wall. 284; 21 L. ed. 164.. 720 
 
 724, 968 
 
 State ex rel. Foot v. Bazille, 97 Minn. 11 600 
 
 Stearns v. Minnesota, 179 U. S. 223; 21 Sup. Ct. Rep. 73; 45 L. ed. 162. 212 
 Stephens v. Cherokee Nation, 174 U. S. 445; 19 Sup. Ct. Rep. 722; 43 
 
 L. ed. 1041 . . . ." 312 
 
 Stewart v. B. & 0. R. R. Co., 168 U. S, 445; 18 Sup. Ct. Rep. 105; 42 
 
 L. ed. 537.. 200
 
 TABLE OF CASES. hri 
 
 PAGE. 
 
 Stewart v. Kahn, 11 Wall. 493; 20 L. ed. 176 339, 1213 
 
 Muekard v. .Morgan, 185 L". S. 27; 22 Sup. Ct. Rep. 576; 46 L. ed. 785. 700 
 Stone v. 111. Cent. Ry. Co., 116 U. S. 347; 6 Sup. Ct. Rep. 348; 29 L. ed. 
 
 650 910 
 
 St. >nc v. .Mississippi, 101 U. S. 814; 25 L. ed. 1079 903, 905 
 
 Moutenburgh v. Hennick, 129 U. S. 141; 9 Sup. Ct. Rep. 256; 32 L. ed. 
 
 637 376, 441, 773 
 
 Strader v. Graham, 10 How. 82; 13 L. ed. 337 241 
 
 Strauder v. West Virginia, 100 U. S. 303; 25 L. ed. 664. . .9JJ, 129, 276, 884 
 
 Strawbridge v. Curtis, 3- Cr. 267 ; 2 L. ed. 435 984 
 
 Stuart v. Laird, 1 Cr. 299; 2 L. ed. 115 26 
 
 Stnrges v. Crowninshield, 4 Wh. 122 ; 4 L. ed. 529 74, 775 
 
 Sugar Trust Case of United States v. E. C. Knight Co., 156 U. S. 1 ; 15 
 
 Sup. Ct. Rep. 249 ; 39 L. ed. 325 * 752 
 
 Sully v. American National Bank, 178 U. S. 289; 20 Sup. Ct. Rep. 935; 
 
 44 L. ed. 1072 221 
 
 Supervisors v. Durant, 9 Wall. 415 ; 19 L. ed. 732 . 142 
 
 Swafford v. Templeton, 185 U. S. 487; 22 Sup. Ct. Rep. 783; 46 L. ed. 
 
 1005 . . . ^ 543 
 
 Swift v. Newport, 7 Bush, 37 7 597 
 
 Swift v. Tyson, 16 Pet. 1 ; 10 L. ed. 865 fc 1034 
 
 Su ift v. United States, 105 U. S. 691 ; 26 L. ed. 1108 26 
 
 Swift fa Co. v. United States, 196 U. S. 375; 25 Sup. Ct. Rep. 276; 49 
 
 L. ed. 518 758 
 
 T. 
 
 Talcot v. Janson, 3. Dall. 133 ; 1 L. ed. 540 260, 290 
 
 T-appan v. Merchants' National Bank, 19 Wall. 490; 22 L. ed. 189 958 
 
 960, 963 
 
 Tarble's Ca.se, 13 Wall. 397; 20 L. ed. 597 1199 
 
 Taylor v. Beckham, 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 
 
 1187 167, 171 
 
 Taylor v. Morton. 2 Curt, C. C. 454; Fed. Cas. No. 13,799. .. .486, 487, 513 
 
 Taylor v. Place, 4 R. T. 32 1 1264 
 
 Taylor v. Porter, 4 Hill. 14G 624 
 
 Taylor v. Taintor. 1 (1 Wall. 366 ; 21 L. ed. 287 226 
 
 Tennessee v. Davis. 100 {'. S. 2.17 : 2.1 L. ed. 648 125, 1020, 1154 
 
 Terlinden v. Ames, 184 U. S. 270; 22 Sup. Ct. Rep. 484; 46 L. ed. 
 
 .-,34 518, 1007, 12*0 
 
 T.M-rett v. Taylor, n Cr. 43 : 3 L. ed. 050 P97 
 
 Tprry. Ex parte, 128 U. S. 280 : 9 Sup. Ct. Rep. 77; 32 L. ed. 405 800 
 
 Tp\a* v. Wliite. 7 Wall. 700: 10 L. ed. 227.... 39, 85, 163. 1056. 1215, 1222 
 
 Thomas v. Gay, 169 U. S. 264; 18 Sup. Ct Rep. 340; 42 L. ed. 740. .312, 4S5 
 
 495, 931 
 
 Thomas v. Loney. 134 U. S. 372: 10 Sup. Ct. Rep. 384; 33 L. ed. 949.. 134 
 Thompson v. Kentucky. 200 U. S. 340; 28 Sup. Ct. Rep. 533; 52 L. ed. 
 
 822 864 
 
 Thorrnson v. KMder 'N'. TT.K fio Atl. Rep. 302 
 
 Thompson v. Mi^.mri. 171 T'. S. 380 : IS Sup. Ct. Rep. 922: 43 L. ed. 
 
 204 805
 
 Ixii TABLE OF CASES. 
 
 PAGE. 
 Thompson v. United States, 155 U. S. 271; 15 Sup. Ct. Rep. 73; 39 
 
 L. ed. 146 819 
 
 Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 
 
 10G1 408, 804, 808, 814 
 
 Thomson v. Union Pacific R. Co., 9 Wall. 579; 19 L. ed. 792 96 
 
 Thoriugton v. Smith, 8 Wall. 1 ; 19 L. ed. 361 380 
 
 Tiburcio, In re, 6 Sawyer, 349 502 
 
 Tindal v. Wesley, 167 U. S. 204; 17 Sup. Ct. Rep. 770; 42 L. ed. 137.. 110.) 
 Tinsley v. Anderson, 171 U. S. 101; 18 Sup. Ct. Rep. 805; 43 L. ed. 
 
 91 138, 8SS 
 
 Toledo, etc., R. Co. v. Perm. Co., 54 Fed. Rep. 730 855 
 
 Tomlinson v. Branch, 15 Wall. 460 ; 21 L. ed. 189 1083 
 
 Tonawanda v. Lyon, 181 U. S. 389; 21 Sup. Ct. Rep. 6D9; 45 L. ed. 908. 938 
 
 Totten v. United States, 92 U. S. 105 ; 23 L. ed. 605 1170 
 
 Township of Pine Grove v. Talcott, 19 Wall. 666; 22 L. ed. 227 924, 925 
 
 Trade-Mark Cases, 100 U. S. 25; 25 L. ed. 550 17, 18, 793 
 
 Treat v. White, 181 U. S. 264; 21 Sup. Ct. Rep. 611; 45 L. ed. 853 19 
 
 Trono v. United States, 199 U. S. 521; 26 Sup. Ct. Rep. 121; 50 L. ed. 
 
 292 821 
 
 Tua v. Carriere, 117 U. S. 201 ; 6 Sup. Ct. Rep. 565; 29 L. ed. 855 780 
 
 Tucker v. Ferguson, 22 Wall. 527 ; 22 L. ed. 805 899, 906 
 
 Tucker v. Potter, 35 Conn. 46 119 
 
 Turner v. Maryland, 107 U. S. 38; 2 Sup. Ct. Rep. 44; 27 L.ed. 370.661, G71 
 
 Turner v. Williams, 194 U. S. 279; 24 Sup. Ct. Rep. 719; 4S L. ed. 979. 253 
 
 Turpin v. Burgess, 117 U. S. 504; 6 Sup. Ct. Rep. 835; 29 L. ed. 988.. Gil 
 
 Turpin v. L?mon, 187 U. S. 51 ; 23 Sup. Ct. Rep. 20; 47 L. ed, 70 625 
 
 Twin City tfattonal Bank v. Xebeker, 167 U. S. 19.6; 17 Sup. Ct. Rep. 
 
 766; 42 L. ed. 134 566 
 
 Twining v. New Jersey, 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 
 
 97 824, 857, 859, 861 
 
 Twitchell v. Penn., 7 Wall. 321 ; 19 L. ed. 223 S77 
 
 Tyler, In re, 149 U. S. 164; 13 Sup. Ct. Rep. 785; 37 L. ed. 669... 1083, 1002 
 
 Tyler v. Defrees, 11 Wall. 331 ; 20 L. ed. 161 1215 
 
 Tyson v. State, 28 Ind. 577- 50!> 
 
 IT. 
 
 Ulman v. Baltimore, 165 U. S. 719; 17 Sup. Ct. Rep. 1001; 41 L. ed. 
 
 1 184 932 
 
 Union Bridge Co. v. United States, 204 U. S. 364; 27 Sup. Ct. Rep. 367; 
 
 51 L. ed. 523 1322 
 
 Union Pacific R. R. Co. v. Peniston, IS Wall. 5; 21 L. ed. 787 97, 714 
 
 Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 104: 26 Sup. Ct. 
 
 Rep. 36; 50 L. ed. 150 ." 717, 930, 947, 949, 954, 955 
 
 Union Trust Co. v. Wayne Probate Judsre. 125 Mich. 487 599 
 
 United States v. Alger, 152 U. S. 384; 14 Sup. Ct. Rep. 635; 38 L. ed. 
 
 488 27 
 
 United States v. Anthony, 11 Blatchf. 200 259 
 
 United States v. Arjona, 120 U. S. 479; 7 Sup. Ct. Rep. 628; 30 L. ed. 
 
 728 - 256, 795
 
 TAHLK OK ( 'ASKS. Ixiii 
 
 PAGE. 
 
 United States v. Bailey, 9 Pet. 238; 9 L. ed. 113 1329 
 
 United States v. Ballin, 144 U. S. 1 ; 12 Sup. Ct. Rep. 507; 36 L. e<I. 
 
 321 563 
 
 United States v. Ball, 163 U. S. 662; 16 Sup. Ct. Rep. 1192; 41 L. ed. 
 
 300 820, 821 
 
 United States v. B. & O. Ry., 17 Wall. 322; 21 L. ed. 597 114 
 
 United stat.-s v. Bell Telephone Co., 128 U. S. 315; 9 Sup. Ct. Rep. 90; 
 
 32 L. ed. 450 1167 
 
 United States v. Bevans, 3 Wh. 33fl; 4 L. ed. 404 1113 
 
 United States v. Black, 128 U. S. 40; 9 Sup. Ct. Rep. 12; 32 L. ed. 354. 1299 
 
 United States v. Buford, 3 Pet. 12 : 7 L. ed. 585 1070 
 
 United States v. Burr, 2 Burr's Trial, 405 839 
 
 United States v. Butterworth, 112 U. S. 50; 5 Sup. Ct. Rep. 25; 28 
 
 L. ed. G56 1270 
 
 United State-, v. Carlisle, 16 Wall. 147: 21 L. ed. 426 246 
 
 United States v. Circuit Court, 126 Fed. Rep. 169 145 
 
 United States v. Clarke, 8 Pet. 436 ; 8 L. ed. 1001 1096 
 
 United States v. Cobb, 11 Fed. Rep. 76 1164 
 
 United States v . Coe, 155 U. S. 76; 15 Sup. Ct. Rep. L6; 39 L. ed. 76.. 370 
 
 United States v. Colorado & N. W. R. Co., 157 Fed. Rep. 321 745 
 
 United States v. Croscy, 1 Hughes, 448 .'. . . 259 
 
 United States v. Cross. 1 MacArthur, 149 . 812 
 
 United States v. Cruikshank, 92 U. S. 542; 23 L. ed. 588 538, 845, 877 
 
 United Stnt.-s v. D., L. & W. R. Co. (C. C.), 152 Fed. Rep. 269 732 
 
 United States v. Dawson, 15 How. 467 ; 14 L. ed-. 775 410, 807 
 
 United States v. Delaware & H. Co., 213 U. S. 366; 29 Sup. Ct. Rep. 
 
 527 : J53 L. ed. 836 16, 763 
 
 United States v. Diekehnan, <)2 U. S. 520; 23 L. ed. 742 1242 
 
 United States v. Duell, 172 U. S. 576; 19 Sup. Ct. Rep. 286; 43 L. ed. 
 
 559 1276 
 
 United States v. K. C. Knight Co., 156 U. S. 1; 15 Sup. Ct. Rep. 249; 
 
 39 L. ed. 325 641 
 
 United States v. Eaton, 144 U. S. 677; 12 Sup. Ct. Rep. 764; 36 L. ed. 
 
 5!1 1328 
 
 United States v. Eliason, 16 Pet. 291; 10 L. ed. 968 1160, 1164, 1326 
 
 United States v. Ferreira, 13 How. 40; 14 L. ed. 42 1178, 1274 
 
 United States v. Fisher, 2 Cr. 358; 2 L. ed. 304 58 
 
 United Slates v. Forty-three Gallons of Whiskey, 93 U. S. 188; 23 
 
 L. ed. 846 299, 769 
 
 United States v. Freeman. 3 How. 550; 11 L. ed. 724 1208 
 
 United States v. Gleason, 78 Fed. 396 2S2 
 
 United State* v. Gennaine. 1)9 U. S. 508; 25 L. ed. 482 1174 
 
 United States v. Cratiot, 14 Pet. 526: 10 L. ed. 573 353 
 
 United States v. Great Falls Manufacturing Co., 112 U. S. 645; 5 Sup. 
 
 Ct. Rep. 306 ; 28 L. ed. 846 10(51 
 
 United Slat.'- v. Cn-uthouse. 2 AM>. C. C. 364 839 
 
 United States v. Greiner. 4 I'liila. 31M', 839 
 
 United Stales v. due I. mi. ITC U. S. 45'.) : 20 Sup. Ct. Re]). 415; 44 
 
 L. ed. .544. . 485
 
 Ixiv TABLE OF CASES. 
 
 PAGE. 
 
 United States v. Guthrie, 17 How. 284; 15 L. ed. 102 353, 1297 
 
 United States v. Hall, 2 Wash. C. C. 366 804 
 
 United States v. Hartwell, 6 Wall. 385; 18 L. ed. 830 528, 1180 
 
 United States v. Hirschfield, 3 Blatchf . 330 259 
 
 United States v. Holliday, 3 Wall. 407; 18 L. ed. 182 299, 736, 773 
 
 United States v. Rowland, 4 Wh. 108; 4 L. ed. 526 1025 
 
 United States v. Hoxie, 1 Paine (U. S.), 265 836 
 
 United States v. Huckabee, 16 Wall. 414; 21 L. ed. 457 339 
 
 United States v. Johnston, 124 U. S. 236; 8 Sup. Ct. Rep. 446; 31 
 
 L. ed. 389 398 
 
 United States v. Kendall, 5 Cr. C. C. 163 1157 
 
 United States v. Joint Traffic Association, 171 U. S. 505; 19 Sup. Ct. 
 
 Rep. 25; 43 L. ed. 259 753, 766 
 
 United States v. Jones, 109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 
 
 1015 68, 455 
 
 United States v. Jung Ah Lung, 124 U. S. 621; 8 Sup. Ct. Rep. 663; 
 
 31 L. ed. 591 1287 
 
 United States v. Ju Toy, 198 U. S. 253; 25 Sup. Ct. Rep. 644; 49 L. ed. 
 
 1040 63, 253, 1286, 1283 
 
 United States v. Kagama, 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 
 
 L/ ed. 228 64, 299, 309, 314, 360, 773 
 
 United States v % Keokuk, '6 Wall. 514; 18 L. ed. 933 142 
 
 United States v. Kirby, 7 Wall. 482; 19 L. ed. 278 792 
 
 United States v. Lee, 106 U. S. 196; 1 Sup. Ct. Rep. 240.; 27 L. ed. 
 
 171 1080, 1081, 1098, 1229 
 
 United States v. Lee Yen Tai, 185 U. S. 213; 22 Sup. Ct. Rep. 629; 46 
 
 L. ed. 878 486 
 
 United States v. Louisiana, 123 U. S. 32; 8 Sup. Ct. Rep. 17; 31 L. ed. 
 
 69 975 
 
 United States v. McBratney, 104 U. S. 621 ; 26 L. ed. 869 485 
 
 United States v. McDaniel, 7 Pet. 1 ; 8 L. ed. 587 1165 
 
 United States v. Maid, 116 Fed. Rep. 650 1327 
 
 United States v. Marigold, 9 How. 560; 13 L. ed. 257 766, 782, 816 
 
 United States v. Miller, 128 U. S. 40; 9 Sup. Ct. Rep. 12; 32 L. ed. 
 
 354 1299 
 
 United States v. Mitchell, 2 Ball. 348; 1 L. ed. 410 836 
 
 United States v. Mouat, 124 U. S. 303; 8 Sup. Ct. Rep. 505; 31 L. ed. 
 
 463 1174 
 
 United States v. Norsch, 42 Fed. Rep. 417 282 
 
 United States v. North Carolina, 136 U. S. 211; 10 *up. Ct. Rep. 920; 
 
 34 L. ed. 336 1057, 1069 
 
 United States v. Palmer, 3 Wh. 610 ; 4 L. ed. 471 . . . .. 1005 
 
 United States v. The Peggy, 1 Cr. 103 ; 2 L. ed. 49 495 
 
 United States v. Percheman, 7 Pet. 51 ; 8 L. ed. 604 484 
 
 United States v. Perez, 9 Wh. 579 ; 6 L. ed. 165 819 
 
 United States v. Perkins, 116 U. S. 483; 6 Sup. Ct. Rep. 449; 29 L. ed. 
 
 700 1185 
 
 United States v. Perkins, 163 U. S. 625; 16 Sup. Ct Rep. 1073; 41 
 
 L. ed. 287 108 
 
 United States v. Peters. 5 Cr. 115 : 3 L.. ed. 53 79, 1075. 1099
 
 TABLE OF CASES. Ixv 
 
 PAGE. 
 
 United States v. Petit, 11 Fed. Rep. 58 812 
 
 United States v. Port of Mobile, 12 Fed. 768 1 896 
 
 United States v. Price, 116 V. S. 43; 6 Sup. Ct. Rep. 235; 29 L. ed. 
 
 541 805 
 
 United States v. Pridgeon, 153 U. S. 48; 14 Sup. Ct. Rep. 746; 38 
 
 L. ed. 631 370 
 
 United States v. Pryor, 3 Wash. 234 839 
 
 United States v. Rauscher, 119 U. S. 407; 7 Sup. Ct. Rep.. 234; 30 
 
 L. ed. 425 225, 231 
 
 United States v. Realty Co., 163 U. S. 427; 16 Sup. Ct. Rep. 1120; 41 
 
 L. ed. 215 11, 592, 608, 805 
 
 United States v. Reese, 92 U. S. 214; 23 L. ed. 563 17, 90, 259, 538 
 
 542, 550 
 
 United States v. Rice, 4 Wh. 246; 4 L. ed. 562 245, 380 
 
 United States v. Rickert, 188 U. S. 432; 23 Sup. Ct. Rep. 478; 47 L. ed. 
 
 532 103, 307, 31 4 
 
 United States v. Russell, 13 Wall. 623; 20 L. ed. 474 1243 
 
 United States v. St. Petersburg, 3 Hughes, 493 259 
 
 United States v. San Jacinto Tin Co., 125 U. S. 273; 8 Sup. Ct. Rep. 
 
 850; 31 L. ed. 747 1167 
 
 United States v. Sanges, 144 U. S. 310; 12 Sup. Ct. Rep. 609; 36 L. ed. 
 
 445 820 
 
 United States v. Schurz, 102 U. S. 378; 26 L. ed. 167 141, 1299 
 
 United States v. Scott, 148 Fed. Rep. 431 747 
 
 United States v. Simon, 170 Fed. Rep. 680 283 
 
 United States v. Sing Tuck, 194 U. S. 161; 24 Sup. Ct. Rep. 621; 48 
 
 L. ed. 917 1289 
 
 United States v. South Carolina, 199 U. S. 437; 26 Sup. Ct. Rep. 110; 
 
 50 L. ed. 261 153 
 
 United States v. State Bank, 6 Pet. 29 ; 8 L. ed. 308 25 
 
 United States v. Symonds, 120 U. S. 46; 7 Sup. Ct. Rep. 411; 30 L. ed. 
 
 557 1330 
 
 United States v. Tarble, 13 Wall. 397 ; 20 L. ed. 597 131 
 
 United States v. Taylor, 3 McCrary, 500 814 
 
 United States v. Texas, 143 U. S. 621; 12 Sup. Ct. Rep. 488; 36 L. ed. 
 
 285 1067, 1069 
 
 United States v. Tr:ui<-Mis-<!iiri Freight Association, 166 U. S. 290; 17 
 
 Sup. Ct. Rop. 540; 41 L. ed. 1007 34, 750, 753 
 
 United States v. Union P. R. Co., 91 U. S. 72 ; 23 L. ed. 324 35 
 
 United States v. Villato, 2 Dall. 370; 1 L. ed. 419 835 
 
 United States v. Waddell, 112 U. S. 70; 5 Sup. Ct. Rep. 35; 28 L. ed. 
 
 f>73 192, 812 
 
 United States v. Weil. 29 Ct. of Cl. 523 570 
 
 United States v. Williams, ]04 U. S. 279; 24 Sup. Ct. Rep. 719; 48 
 
 I., ed. fim 843 
 
 United States v. WiltlxM-gor, f> Wh. 70; 5 L. ed. 37 835 
 
 United States v. Windom, 137 U. S. 636; 11 Sup. Ct. Rep. 197; 34 
 
 L. ed. 811.. 1299
 
 Ixvi TABLE OF CASES. 
 
 PAGE, 
 
 United States v. Wong Kim Ark, 169 U. S. 649; 18 Sup. Ct. Rep. 456; 
 
 42 L. ed. 890 29, 246, 270, 274, 2S1 
 
 United States v. Worrall, 2 -Ball. 384; 1 L. ed. 426 726 
 
 United States v. Wynn, 3 McCrary, 266 812 
 
 United States v. Yellow Sun, 1 Dill. 271 307 
 
 United States ex rel. Boynton v. Elaine, 139 U. S. 306; 11 Sup. Ct. 
 
 Rep. 607 ; 35 L. ed. 183 1008 
 
 United States ex rel. Drury v. Lewis, 200 U. S. 1; 26 Sup. Ct. Rep. 
 
 229; 50 L. ed. 343 138, 139 
 
 V. 
 
 Vallandigham, Ex parte, 1 Wall. 243; 17 L. ed. 589 1254 
 
 Van Allen v. Assessors, 3 Wall. 573 ; 18 L. ed. 229 105, 106 
 
 Van Brocklin v. Tennessee, 117 U. S. 151; 6 Sup. Ct. Rep. 670; 29 
 
 L. ed. 845 102, 379 
 
 Vance v. Hadfield, 22 N. Y. 588 1295 
 
 Vance v. Vandercook Co., 170 U. S. 438; 18 Sup. Ct. Rep. 674; 42 L. ed. 
 
 1100 116, 685, 695 
 
 Vanderbilt v. Adams, 7 Cow. 349 1295 
 
 Van Xess Case, Cl. & H. 122 560 
 
 Van Valkenburg v. Brown, 43 Cal. 42 259 
 
 Van Zandt v. Waddel, 2 Yerg. 260 624 
 
 Veazie Bank v. Fenno, 8 Wall. 533; 19 L. ed. 482 61, 111, 578, 615, 619 
 
 765, 767 
 
 Venus, The, 8 Cr. 253 ; 3 L. ed. 553 250 
 
 Virginia, Ex parte, 100 U. S. 339; 25 L. ed. 676. .149, 189, 276, 866, 867, 885 
 
 Virginia v. Rives, 100 U. S. 313 ; 25 L. ed. 667 ." 188, 884 
 
 Virginia v. Tennessee, 148 U. S. 503; 13 Sup. Ct Rep. 728; 37 L. ed. 
 
 537 235 
 
 Virginia v. Tennessee, 158 U. S. 267; 15 Sup. Ct. Rep. 818; 39 L. ed. 
 
 976 1043 
 
 Virginia v. West Virginia, 11 Wall. 39 ; 20 L. ed. 67 1043 
 
 W. 
 
 Wat ash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557; 7 Sup. Ct. Rep. 4; 
 
 30 L. ed. 244 730 
 
 Wales v. Belcher, 3 Pick. 508 1.1 5 
 
 Walker v. Sauvinet, 92 U. S. 90; 23 L. ed. 678 868 
 
 Wallace v. Myers, 38 Fed. Rep. 184 509 
 
 Walling v. Michigan, 116 U. S. 446; 6 Sup. Ct. Rep. 454; 29 L. ed. 691. 705 
 
 Walston v. Xevin, 128 U. S. 578; 9 Sup. Ct. Rep. 192; 32 L. ed. 544 932 
 
 Wan Shing v. United States, 140 U. S. 424; 11 Sup. Ct. Rep. 729; 35 
 
 L. eel. 503 1287 
 
 Ward v. Maryland, 12 Wall. 418; 20 L. ed. 449 214, 704, 928 
 
 Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 
 
 244 485, 500 
 
 Ware v. Hylton, 3 Dall. 199: 1 L. ed. 503 79. 404, 40.1, 406, 500 
 
 Ware v. Mobile, 209 U. S. -40.1; 28 Sup. Ct. Rep. 526; 52 L. ed. 8.1.1 708 
 
 Warp v. Wisner, 50 Fed. 310 -?59 
 
 Wanng v . Clarke, 5 How. 441 ; 12 L. ed. 226 1107
 
 TABLE OF CASES. Ixvii 
 
 PAGE. 
 Warner, Barnes & Co. v. United States, 197 U. S. 419; 25 Sup. Ct. Rep. 
 
 455 : 49 L. ed. 816 442 
 
 Washington University v. Rouse. 8 Wall. 439 ; 19 L. ed. 498 52 
 
 Waters Pierce Oil Co. v. Texas, 177 U. S. 28; 20 Sup. Ct. Rep. 518; 44 
 
 L. ed. (557 221, 698 
 
 Watkins v. Holman, 16 Pet. 25 ; 10 L. ed. 873 202 
 
 Watson v. Jones, 13 Wall. 679; 20 L. ed. 666 842 
 
 Watson v. Mercer, 8 Pet. 88; 8 L. ed. 876 892 
 
 Wayman v. Southard, 10 Wh. 1 ; 6 L. ed. 253 ." 1330 
 
 Wayne 'Co. v. Kennicoti, 103 U. S. 554; 2-6 L. ed. 317 841 
 
 v. \\Vutlierley, Transvaal Prov. Rep. 06; 1 Scale's Cas. 420. 206 
 
 v. Virginia, 103 U. S. 334 ; 26 L. ed. 565 100, 704, 793 
 
 Welx-r v. Harbor Commissioners, 18 Wall. 57 ; 21 K ed. 798 .> 241 
 
 \\Vhcr v. Lee Co., 6 Wall. 2TO; 18 L. ed. 781 142 
 
 WH)cr v. Rogan, 188 U. S. 10; 23 Sup. Ct. Rep. 263; 47 L. ed. 363 917 
 
 WelM.T v. Reid, 11 How. 437; 13 L. ed. 761 408, 808 
 
 Wehlitz, Re, 16 Wis. 443 259, 272 
 
 Wells v. Mayor of Savannah, 181 U. S. 531; 21 Sup. Ct. Rep. 697; 45 
 
 L. ed. 986 906 
 
 Welton v. Missouri, 91 U. S. 275; 23 L. ed. 347 704 
 
 West v. Louisiana, 194 U. S. 258; 24 Sup. Ct. Rep. 650; 48 L. ed. 965. . 863 
 
 Western Sav. Fund Co. v. Philadelphia, 31 Pa. St. 175 117 
 
 Western. Union Telegraph Co. v. Borough of New Hope, 187 U. S. 419; 
 
 23 Sup. Ct. Rep. 204; 47 L. ed. 240 702, 725 
 
 Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92; 21 
 
 Sup. Ct. Rep. 561 ; 45 L. ed. 765 726, 727, 1032 
 
 Western Union Tel. Co. v. James, 162 U. S. 650; 16 Sup. Ct. Rep. 934; 
 
 40 L. ed. 1 10o ' 666, 670 
 
 Wotorn Union Telegraph Co. v. Kansas, 216 U. S. 1 ; 30 Sup. Ct. Rep. 
 
 1!)0 150, 221, 698, 725, 958 
 
 Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530; 8 Sup. Ct. 
 
 Rep. 961 ; 31 L. ed. 700 699, 717, 950 
 
 W. U. Tel. Co. v. Taggart, 163 U. S. 1 ; 16 Sup. Ct. Rep. 1054; 41 
 
 L. ed. 49 719, 950, 951 
 
 W. U. Telegraph Co. v. Texas, 105 U. S. 460 ; 26 L. ed. 1067 102 
 
 \\Y4on v. Charleston, 2 Pet. 449 ; 7 L. ed. 481 82, 103 
 
 Wlu-aton v. MiekH. (57 X. J. L. 525; 42 Atl. Rep. 843 948 
 
 Wheaton v. 1 Vt<-rs. 8 Pet. 591 ; 8 L. ed. 1055 1031 
 
 Wheeling & Hdniont Bridge Co. v. Wheeling Bridge Co., 138 U. S. 287; 
 
 11 Sup. Ct. Rep. 301 ; 34 L. ed. 967 900 
 
 White v. Kerry. 17! U. S. 3(JO : IS Sup. Ct. Rep. 917; 43 L. ed. 199 11S5 
 
 Wight v. Davidson. 181 U. S. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900. 938 
 
 939, 941 
 
 Wik-ox v. Jackson, 1 3 Pet. 498 ; 10 L. ed. 264 1159 
 
 Wiley v. Sinkler. 170 V. S. 58: 21 Sup. Ct. Rep. 17; 45 L. ed. 84 5-12 
 
 WMkerson v. Utah. 9!l U. S. 130; 25 L. ed. 345 831 
 
 Willard v. Pr.-<lmry. M Wall. <>7<i : 20 L. ed. 719 932 
 
 Williams v. Mississippi, 170 U. S. 213; 18 Sup. Ct. Rep. 583; 42 L. ed. 
 
 1012 . 552, 884
 
 Ixviii TABLE OF CASES. 
 
 PAGE. 
 
 Williams v. Suffolk Insurance Co., 13 Pet. 415; 10 L. ed. 226 1004 
 
 William* v. United States, 1 How. 290; 11 L. ed. 135 1159 
 
 Williams v. Wingo, 177 U. S. 601 ; 20 Sup. Ct. Rep. 793 894 
 
 Williamson v. United States, 207 U. S. 425; 28 Sup. Ct. Rep. 163; 52 
 
 L. ed. 278 530 
 
 Wilmerding, In re, 117 Cal. 281 599 
 
 Wilson, In re, 15 Fed. 511 214 
 
 Wilson, Ex parte, 114 U. S. 417; 5 Sup. Ct. Rep. 935; 29 L. ed. 89. . .29, 811 
 
 Wilson V. Black Bird Creek Marsh Co., 2 Pet. 245; 7 L. ed. 412 654, 661 
 
 Wilson v. Eureka City, 173 U. S. 32; 19 Sup. Ct. Rep. 317; 43 L. ed. 
 
 603 886, 1294 
 
 Wilson v. McNamee, 102 U. S. 572 ; 26 L. ed. 234 661 
 
 Wilson v. North Carolina, 169 U. S. 586; 18 Sup. Ct. Rep. 435; 42 
 
 L. ed. 865 170, 864 
 
 Wilson v. Shaw, 204 U. S. 24; 27 Sup. Ct. Rep. 233; 51 L. ed. 351. ... 764 
 
 Wilson v. State, 16 Ark. 601 814 
 
 Wisconsin v. Duluth, 96 U. S. 379; 24 L. ed. 668 1055 
 
 Wisconsin v. Pelican Insurance Co., 127 U. S. 265; 8 Sup. Ct. Rep. 
 
 1370 ; 32 L. ed. 239 197, 203, 1055 
 
 Wisconsin C. R. Co. v. Price County, 133 U. S. 496; 10 Sup. Ct. Rep. 
 
 341 ; 33 L. ed. 687 103 
 
 Wisconsin M. & P. Ry. Co. v. Jacobson, 179 U. S. 287; 21 Sup. Ct. Rep. 
 
 115; 45 L. ed. 194 666 
 
 Wheaton v. Peters, 8 Pet. 591 ; 8 L. ed. 1055 726 
 
 White v. Hart, 13 Wall. 646 ; 20 L. ed. 685 163, 523 
 
 Whiting v. Fond du Lac, 25 Wis. 188 586 
 
 Whitney v. Robertson, 124 U. S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 
 
 386 ' 487, 492, 514 
 
 Wolfe v. Hartford Life Insurance Co., 148 U. S. 389; 13 Sup. Ct. Rep. 
 
 602 ; 37 L. ed. 493 9S7 
 
 Wolff v. Xew Orleans, 103 U. S. 358; 26 L. ed. 395 896, 897, 1088 
 
 Wolsey v. Chapman, 101 U. S. 755 ; 25 L. ed. 915 1 160 
 
 Wong Wing v. United States, 163 U. S. 228; 16 Sup. Ct. Rep. 977; 41 
 
 L. ed. 140 1331 
 
 Wood, Ex parte, 155 Fed. 190 138 
 
 Wood v. Wagnon, 2 Cr. 9 ; 2 L. ed. 191 987 
 
 Woodruff v. Parham, 8 Wall. 123 ; 19 L. ed. 382 608, 711, 768, 770 
 
 Woodruff v. Trapnall, 10 How. 190; 13 L. ed. 383 1086 
 
 Worcester v. Georgia, 6 Pet. 515 ; 8 L. ed. 483 82, 304, 313 
 
 Work v. Ohio, 2 Ohio St. 296 814 
 
 Wright v. Xagle, 101 U. S. 791 ; 25 L. ed. 921 913 
 
 Y. 
 
 Yamataya v. Fisher, 189 U. S. 86; 23 Sup. Ct. Rep. 611; 47 L. ed. 721. . 1291 
 
 Yang Sing Hee, In re, 13 Sawyer, 486 803 
 
 Yarborough, Ex parte, 110 U. S. 651; 4 Sup. Ct Rep. 152; 28 L. ed, 
 
 274 192, 541, 543, 649 
 
 Yick Wo v. Hopkins, 118 U. S. 356; 6 Sup. Ct. Rep. 1064; 30 L. ed. 
 
 220 ... 552, 885, 1203 
 
 Young. Re, 209 U. R. 123: 28 Sup. Ct. Rep. 441 : 52 L. ed. 7H K>03
 
 CONSTITUTION OF THE UNITED STATES. 3 
 
 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 1. All legislative powers herein granted shall be vested 
 in a Congress of the United States, which shall consist of a Senate 
 and House of Representatives. 
 
 SECTION 2. 1 The House of Representatives shall be composed 
 of members chosen every second year by the people of the several 
 States, and the electors in each State shall have the qualifications 
 requisite for electors of the most numerous branch of the State 
 legislature. 
 
 2 No person shall be a representative who shall not have 
 attained to the age of twenty-five years, and been seven years a 
 citizen of the United States, and who shall not, when elected, 
 be an inhabitant of that State in which he shall be chosen. 
 
 3. Representatives and direct taxes shall be apportioned among 
 the several States which may be included within this Union, 
 according to their respective numbers, which shall be determined 
 by adding to the whole number of free persons, including those 
 bound to service fur a term of years, and excluding Indians not 
 taxed, three fifths of all other persons. 2 The actual enumeration 
 shall be made within three years after the first meeting of the 
 Congress of the United States, and within every subsequent term 
 of ten years, in such manner as they shall by law direct. The 
 number of representatives shall not exceed one for every thirty 
 thousand, but each State shall have at least one representative; 
 
 1 Tliis reprint of the Constitution exactly follows the text of that in the 
 Department of State at \Yash in"<_'ton. save in the spelling of a few words. 
 liy the 1-lth Amendment. 
 [Ixixl
 
 ]XX CONSTITUTION OF THE UNITED STATES. 
 
 and until such enumeration shall be made, the State of Xew 
 Hampshire shall be entitled to choose three, Massachusetts eight, 
 Rhode Island and Providence Plantations one, Connecticut five, 
 New York six, Xew Jersey four, Pennsylvania eight, Delaware 
 one, Maryland six, Virginia ten, Xorth Carolina five, South 
 Carolina five, and Georgia three. 
 
 4 When vacancies happen in the representation from any State, 
 the executive authority thereof shall issue writs of election to 
 fill such vacancies. 
 
 5 The House of Representatives shall choose their speaker and 
 other officers, and shall have the sole power of impeachment. 
 
 SECTION 3. 1 The Senate of the United States shall be com- 
 posed of two senators from each State, chosen by the legislature 
 thereof for six years ; and each senator shall have one vote. 
 
 2 Immediately after they shall be assembled in 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 shal" 
 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 cliOM-n 
 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. 
 
 3 ~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. 
 
 4 The Vice President of the United States shall be President 
 of the Senate, but shall have no vote, unless they be equally 
 divided. 
 
 5 The Senate shall choose their other officers, and also a presi- 
 dent pro tern pore, in the absence of the Vice President, or when 
 he shall exercise the office of President of the United States. 
 
 6 The Senate shall have the sole power to try all impeach- 
 ments. When sitting fcr that purpose, they shall be on oath or 
 affirmation. When the President of the United States is tried,
 
 CONSTITUTION OF THE U'MTED STATES. Ixxi 
 
 the chief justice shall preside: and no person shall be convicted 
 without the concurrence of two thirds of the members present. 
 
 7 Judgment in cases of impeachment shall not extend further 
 than to removal from office, and disqualification to hold and 
 enjoy any office of honor, trust or profit under the United States: 
 but the party convicted shall nevertheless be liable and subject 
 to indictment, trial, judgment and punishment, according to 
 law. 
 
 SECTION 4. 1 The times, places, and manner of holding elec- 
 tions for senators and representatives, shall be prescribed in each 
 State by the legislature thereof; but the Congress may at any 
 time by law make or alter such regulations, except as to the 
 places of choosing senators. 
 
 2 The Congress shall assemble at least once in every year, and 
 such meeting shall be on the first Monday in Desember, unless 
 ihcy shall by law appoint a different day. 
 
 SECTION 5. 1 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; bvit 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. 
 
 2 Each House may determine the rules of its proceedings, 
 punish its members for disorderly behavior, and, with the con- 
 currence of two thirds, expel a member. 
 
 3 Each House shall keep a journal of its proceedings, and from 
 time to time publish the same, excepting such parts' as may in 
 their judgment require secrecy; and the yeas and nays of the 
 members of either House on any question shall, at the desire of 
 one fifth of tho=e present, be entered on tho journal. 
 
 1 '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 0. 1 The senators and representatives shall receive a 
 compensation for their services tn In- a8Cefrtain*cl by law. and paid 
 out of the Treasury of the United State?. They shall in all 
 cases, except treason, felony and breach of the peace, be privi-
 
 Ixxii CONSTITUTION OF THE UNITED STATES. 
 
 leged 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. 
 
 2 No senator or representative shall, during the time for which 
 he was elected, be appointed to any civil office under the authority 
 of the United States, which shall have been created, or the emolu- 
 ments whereof shall have been increased during such time; and 
 no person holding any office under the United States shall be a 
 member of either House during his continuance in office. 
 
 SECTION 7. 1 All bills for raising revenue shall originate in 
 the House of Representatives; but the Senate may propose or 
 concur with amendments as on other bills. 
 
 2 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 shell 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. 
 
 3 Every order, resolution, or vote to which the concurrence of 
 the Senate and House of Representatives may be necessary (ex- 
 cept 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
 
 CONSTITUTION OF THE UNITED STATES. Ixxiii 
 
 Representatives, according to the rules and limitations prescribed 
 in the case of a bill. 
 
 SECTION 8. 1 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; 
 
 2 To borrow money on the credit of the United States ; 
 
 3 To regulate commerce with foreign nations, and among the 
 several States, and with the Indian tribes; 
 
 4 To establish an uniform rule of naturalization, and uniform 
 laws on the subject of bankruptcies throughout the United States; 
 
 5 To coin money, regulate the value thereof, and of foreign 
 coin, and fix the standard of weights and measures; 
 
 6 To provide for the punishment of counterfeiting the securi- 
 ties and current coin of the United States ; 
 
 7 To establish post offices and post roads ; 
 
 8 To promote the progress of science and useful arts by secur- 
 ing for limited times to authors and inventors the exclusive right 
 to their respective writings and discoveries; 
 
 9 To constitute tribunals inferior to the Supreme Court ; 
 
 10 Define and punish piracies and felonies committed on 
 the high seas, arid offenses against the law of nations ; 
 
 11 To declare war, grant letters of marque and reprisal, and 
 make rules concerning captures on land and water; 
 
 12 To raise and support armies, but no appropriation of money 
 to that use shall be for a longer term than two years ; 
 
 13 To provide and maintain a navy; 
 
 14 To make rules for the government/ and regulation of the 
 land and naval forces; 
 
 15 To provide for calling forth the militia to execute the laws 
 of the Union, suppress insurrections and repel invasions; 
 
 16 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 re- 
 spectively the appointment of the officers, and the authority of 
 triiiiini"- the militia according to the discipline prescribed Vy 
 Congress ;
 
 CONSTITUTION OF THE UNITED STATES. 
 
 17 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, be- 
 come the seat of the government of the United States, and to 
 exercise like authority over all places purchased by the consent of 
 the legislature of the State in which the same shall be, for the 
 erection of forts, magazines, arsenals, dockyards, and other need- 
 ful buildings; and 
 
 18 To make ail 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 9. 1 The migration or importation of such persons as 
 any of the States now existing shall think proper to admit, shall 
 not be prohibited by the Congress prior to the year one thousand 
 eight hundred and eight, but a tax or duty may be imposed on 
 such importation, not exceeding ten dollars for each person. 
 
 2 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. 
 
 3 No bill of attainder or ex post facto law shall be passed. 
 
 4- No capitation, or other direct, tax shall be laid, unless in 
 proportion to the census or enumeration hereinbefore directed to 
 be taken. 
 
 5 No tax or duty shall be laid on articles exported from any 
 State. 
 
 6 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. 
 
 7 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. 
 
 8 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.
 
 CONSTITUTION OF THE UNITED STATES. Ixxv 
 
 SECTION 10. 1 Xo State shall enter into any treaty, alliance, 
 or confederation ; grant letters of marque and reprisal ; coin 
 money; emit bills of credit; make anything but gold and silver 
 coin a tender in payment of debts; pass any bill of attainder, 
 c.i- post facto law, or law impairing the obligation of contracts 
 or grant any title of nobility. 
 
 '2 Xo State shall, without the consent of the 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. 
 
 '!. Xo 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 1. 1 The executive power shall be rested in a Presi- 
 dent of the United States of America. He shall hold his office 
 during the term of four years, and, together with the Vice Presi- 
 dent, chosen for the same term, be elected, as follows 
 
 i' Kach State shall appoint, in such manner as the legislature 
 thereof may direct, a number of electors, equal to the whole num- 
 ber of senators and representatives to which the State may be 
 entitled in the Congress; but no senator or representative, or 
 person holding an office of trust or profit under the United States, 
 shall be appointed an elector. 
 
 The electors shall meet in their respective States, and vote by 
 ballot for two persons, of whom one at least shall not be an in- 
 habitant of the same State with themselves. And they shall make 
 a list of all the per-ons voted for, and of the number of vote* 
 for each; which list they shall siti'ii :;ii'l certify, and transmit 
 sealed to the -cut 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 ll>:i-e of Representatives, open
 
 Ixxvi CONSTITUTION OF THE UNITED STATES. 
 
 all the certificates, and the votes shall then be counted. The 
 person having the greatest number of votes shall be the President, 
 if such number be a majority of the whole number of electors 
 appointed; and if there be more than one who have such majority, 
 and have an equal number of votes, then the House of Representa- 
 tives shall immediately choose by ballot one of them for Presi- 
 dent; 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 Vice President. But if there should re- 
 main two or more who have equal votes, the Senate shall choose 
 from them by ballot the Vice President. 1 
 
 3 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. 
 
 4 Xo 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. 
 
 5 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 
 removed, or a President shall be elected. 
 
 6 The President shall, at stated times, receive for his services 
 a compensation, which shall neither be increased nor diminished 
 during the period for which he shall have been elected, and he 
 
 i Superseded by the 12th Amendment.
 
 CONSTITUTION OF THE UNITED STATES. Ixxvii 
 
 shall not receive within that period any other emolument from 
 the United States, or any of them. 
 
 7 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 2. 1 The President shall be commander in chief of 
 the army and navy of the United States, and of the militia of the 
 .several States, when called into the actual service of the United 
 States; he may require the opinion, in writing, of the principal 
 officer in each of the executive departments, upon any subject 
 relating to the duties of their respective offices, and he shall have 
 power to grant reprieves and pardons for offenses against the 
 United States, except, in cases of impeachment. 
 
 2 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 estab- 
 lished 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. 
 
 3 The President shall have power to fill up all vacancies that 
 may happen during the recess of the Senate, by granting commis- 
 sions which shall expire at the end of their next session. 
 
 SECTION 3. He shall from time to time give to the Congress 
 information of the state of the Union, and recommend to their 
 consideration such measures as he shall judge necessary and ex- 
 pedient ; 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.
 
 Ixxviii CONSTITUTION OF THE UNITED STATES. 
 
 SECTION 4. The President, Vice President, and all civil offi- 
 cers of the United States, shall be removed from office on im- 
 peachment for, and conviction of, treason, bribery, or other high 
 crimes and misdemeanors. 
 
 AKTICLE III 
 
 SECTION 1. The judicial power of the United States shall be 
 vested in one Supreme Court, and in such inferior courts as the 
 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 continuance in office. 
 
 SECTION 2. 1 The judicial power shall extend to all cases, in 
 law and equity, arising under this Constitution, the laws of the 
 United States, and treaties made, or which shall be made, under 
 their authority ; to all cases affecting ambassadors, other pub- 
 lic ministers and consuls ; to all cases of admiralty and mari- 
 time jurisdiction ; to controversies to which the United States 
 shall be a party ; to controversies between two or more States ; 
 between a State and citizens of another State; between 
 citizens of different States, between citizens of the same State 
 claiming lands under grants of different States, and between a 
 State, or the citizens thereof, and foreign States, citizens or 
 subjects. 
 
 2 In all cases affecting ambassadors, other public ministers 
 and consuls, and those in which a State shall be party, the 
 Supreme Court shall have original jurisdiction. In all the other 
 cases before mentioned, the Supreme Court shall have appellate 
 jurisdiction, both as to law and to fact, with such exceptions, and 
 under such regulations as the Congress shall make. 
 
 3 The trial of all crimes, except in cases of impeachment, shall 
 be by jury; and such trial shall be held in the State where the 
 said crimes shall have been committed ; but when not committed 
 within any State, the trial shall be at such place or places as the 
 Congress may by law have directed. 
 
 SECTION 3. 1 Treason against the United State?, shall con<i?t 
 only in levying war against them, or in adhering to their enemies,
 
 CONSTITUTION OF THE UNITED STATES. Ixxix 
 
 giving them aid and comfort. Xo person shall be convicted of 
 treason unless on the testimony of two witnesses to the same overt 
 act, or on confession in open court. 
 
 1 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. 
 
 ARTICLE IV 
 
 SECTION 1. Full faith and credit shall be given in each State 
 to fhe public acts, records, and judicial proceedings of every other 
 State. And the Congress may by general laws prescribe the man- 
 ner in which such acts, records and proceedings shall be proved, 
 and the effect thereof. 
 
 SECTION 2. 1 The citizens of each State shall be entitled to 
 all privileges and immunities of citizens in the several States. 
 
 2 A person charged in any State with treason, felony, or other 
 crime, who shall flee from justice, and be found in 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. 
 
 3 Xo person held to service or labor in one State, under the 
 laws thereof, escaping into another, shallj in consequence of any 
 law or regulation therein, be discharged from such service or 
 labor, but shall be delivered up on claim of the party to whom 
 such service or labor may be due. 
 
 SECTION 3. 1 Xtw States may be admitted by the Congress 
 into this Union; but no nev,' 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 
 Avell as of the Congr< --. 
 
 2 The Congress .-hall have power to dispose of and make all 
 
 needful rules and regulations respecting the territory or other 
 
 property Ix-lomring to the United States; and nothing in this 
 
 -titution shall be so construed as to prejudice any claims of 
 
 the United States, or of any particular State. 
 
 , io\ 4. The United States shall guarantee tnsevery State 
 in this Union a republican tWiu of government, and ?-liall protect
 
 Ixxx CONSTITUTION OF THE UNITED STATES. 
 
 each of them against invasion; and on application of the legisla- 
 ture, or of the executive (when the legislature cannot be convened) 
 against domestic violence. 
 
 ARTICLE V 
 
 The Congress, whenever two thirds of both Houses shall deem 
 it necessary, shall propose amendments to this Constitution, or, 
 on the application of the 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 pro- 
 posed by the Congress; Provided that no amendment which may 
 be made prior to the year one thousand eight hundred and eight 
 shall in any manner affect the first and fourth clauses in the ninth 
 section of the first article; and that no State, without its consent, 
 shall be deprived of its equal suffrage in the Senate. 
 
 ARTICLE VI 
 
 1 All debts contracted and engagements entered into, before the 
 adoption of this Constitution, shall be as valid against the United 
 States under this Constitution, as under the Confederation. 
 
 2 This Constitution, and the laws of the United States which 
 shall be made in pursuance thereof; and all treaties made, or 
 which shall be made, under the .authority of the United States, 
 shall be the supreme law of the land; and the judges in every 
 State shall be bound thereby, anything in the Constitution or laws 
 of any State to the contrary notwithstanding. 
 
 3 The senators and representatives before mentioned, and the 
 members of the several State legislatures, and all executive ard 
 judicial officers, both of the United States, and of the several 
 States, shall be bound by oath or affirmation to support this Con- 
 stit ition; \mt no religious test shall ever be required as a qualifi- 
 cat^on to any office or public trust under the United States.
 
 CONSTITUTION OF THE UNITED STATES. Ixxxi 
 
 ARTICLE VII 
 
 The ratification of the conventions of nine States shall be 
 sufficient for the establishment of this Constitution between the 
 States so ratifying the same. 
 
 Articles in addition to, and amendment of, the Constitution of 
 the United States of America, proposed by Congress, and 
 ratified by the legislatures of the several States pursuant to the 
 fifth article of the original Constitution. 
 
 ARTICLE I 1 
 
 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 peace- 
 ably to assemble, and to petition the government for a redress of 
 grievances. 
 
 ARTICLE II 
 
 A well regulated militia, being necessary to the security of a 
 free State, the right of the people to keep and bear arms, shall 
 not be infringed. 
 
 ARTICLE III 
 
 No soldier shall, in time of peace be quartered in any house, 
 without the consent of the owner, nor in time of war, but in a 
 manner to be prescribed by law. 
 t 
 
 ARTICLE IV 
 
 The right of the people to be secure in their persons, houses, 
 papers, and effects, against unreasonable searches and seizures, 
 shall not be violated, and no warrants shall issue, but upon prob- 
 able cause, supported by oath or affirmation, and particularly 
 describing the place to be searched, and the persons or things 
 to be seized. 
 
 ARTICLE V 
 
 No person shall be held to answer for a capital, or otherwise 
 infamous crime, unless on a presentment or indictment of a grand 
 
 i The first ten Amendments were adopted in 1791. 
 
 . 
 VI
 
 I 
 Ixxxii CONSTITUTION OF THE UNITED STATES. 
 
 jury, except in cases arising in the land or naval forces, or in the 
 militia, when in actual sendee in time of war or public danger ; 
 nor shall any person be subject for the same offense to be twice 
 put in jeopardy of life or limb; nor shall be compelled in any 
 criminal case to be a witness against himself, nor be deprived of 
 life, liberty, or property, without due process of law; nor shall 
 private property be taken for public use without just compensation. 
 
 AETICLE VI 
 
 In all criminal prosecutions, the accused shall enjoy the right 
 to a speedy and public trial, by an impartial jury of the State 
 and district wherein the crime shall have been committed, which 
 district shall have been previously ascertained by law, and to be 
 informed of the nature and cause of the accusation; to be con- 
 fronted 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. 
 
 AKTICLE VII* 
 
 In suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be preserved, 
 and no fact tried by a jury shall be otherwise reexamined in any 
 court of the United States, than according to the rules of the 
 common law. 
 
 ARTICLE VIII 
 
 * 
 
 Excessive bail shall not be required, nor excessive fines imposed, 
 nor cruel and unusual punishments inflicted. 
 
 ARTICLE IX 
 
 The enumeration in the Constitution of certain rights shall not 
 be construed to deny or disparage others retained by the people. 
 
 ARTICLE X 
 
 The powers not delegated to the United States by the Constitu- 
 tion, nor prohibited by it to the States, are reserved to the States 
 respectively, or to the people.
 
 COXSTITUTIOX OF THE U XI TED STATES. Ixxxiii 
 
 ARTICLE XI 1 
 
 The judicial power of the United States shall not be construed 
 to extend to any suit in law or equity, commenced or prosecuted 
 against one of the United States by citizens of another State, or 
 by citizens or subjects of any foreign State. 
 
 ARTICLE XII 2 
 
 The electors shall meet in their respective States, and vote by 
 ballot for President and Vice President, one of whom, at least, 
 shall not be an inhabitant of the same State with themselves ; 
 they shall name in their ballots the person voted for as President, 
 and in distinct ballots the person voted for as Vice President, and 
 they shall make distinct lists of all persons voted for as President 
 and of all persons voted for as Vice President, and of the number 
 of votes for each, which lists they shall sign and certify, and 
 transmit sealed to the seat of the government of the United States, 
 directed to the president of the Senate; The president of the 
 Senate shall, in presence of the Senate and House of Representa- 
 tives, 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 having the highest numbers not exceeding- 
 three on the list of those voted for as President, the House of 
 Representatives shall choose immediately, by ballot, the President. 
 But in choosing the 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. And if the House of Representatives shall 
 not choose a President whenever the right of choice shall devolve 
 upon them, before the fourth day of March, next following, then 
 the Vice President shall act as President, as in the case of the 
 death or other constitutional disability of the President. The 
 person having the greatest number of votes as Vice President shall 
 bo the Vice Presidf-nt. if such number be a majority of the whole 
 
 i Adopted in 1798. 2 Adopted in 1804.
 
 ixxxiv CONSTITUTION OF THE UNITED STATES. 
 
 number of electors appointed, and if no person have a majority, 
 then from the two highest numbers on the list, the Senate shall 
 choose the Vice President ; a quorum for the .purpose shall consist 
 of two thirds of the whole number of senators, and a majority of 
 the whole 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. 
 
 ARTICLE XIII 1 
 
 SECTION 1. 1 Neither slavery nor involuntary servitude, ex- 
 cept as punishment for crime whereof the party shall have been 
 duly convicted, 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. 
 
 ARTICLE XIV 2 
 
 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. Xo 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 protec- 
 tion of the laws. 
 
 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 representa- 
 tion 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. 
 
 i Adopted in 1865. -adopted in 1868.
 
 CONSTITUTION OF THE UNITED STATES. Ixxxv 
 
 3 Xo 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 legis- 
 lature, or as an executive or judicial officer of any State, to sup- 
 port 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. 
 
 4 The validity of the public debt of the United States, author- 
 ized by law, including debts incurred for payment of pensions 
 and bounties for services in suppressing insurrection or rebellion, 
 shall not be questioned. But neither the United States nor any 
 State shall assume or pay any debt or obligation incurred in aid 
 of insurrection or rebellion against the United States, or any 
 claim for the loss or emancipation of any slave; but all such debts, 
 obligations and claims shall be held illegal and void. 
 
 5 The Congress shall have power to enforce, by appropriate 
 legislation, the provisions of this article. 
 
 
 AETICLE XV 1 
 
 SECTION 1. The right of citizens of the United States to vote 
 shall not be denied or abridged by the United States or by any 
 State on account of race, color, or previous condition of servitude. 
 
 SECTION 2. The Congress shall have power to enforce this 
 article by appropriate legislation. 
 
 l Adopted in 1870.
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 CHAPTER I. 
 
 THE SUPREMACY OF THE UNITED STATES CONSTITUTION. 
 
 The fundamental principle of American constitutional juris- 
 prudence is that laws and not men shall govern. This means that 
 when a power, exercised by an official or by a governmental organ, 
 is challenged legal authority therefor derived from some existing 
 law must be shown, and that no valid law can exist save that which 
 is recognized as such by the courts. The courts recognize two 
 great bodies of law ; the so-called common law, which is a product 
 of custom and judicial interpretation, which in large measure we 
 have inherited from England; and enacted law, which is the 
 formal creation of the legislative organs of government. This 
 formally enacted law is of two kinds: That embodied in written 
 constitutions, and that enacted by the ordinary legislative bodies 
 and termed statutes. 
 
 Independently of express statement to that effect, it has become 
 axiomatic that no statute law is valid if not consistent with the 
 provisions of the Constitution from which the enacting legislature 
 derives its powers. A state statute inconsistent with the Con- 
 stitution of that state is, therefore, invalid, and an act of Con- 
 gress not warranted by the provisions of the federal Constitution 
 is similarly void. And the same legal invalidity of course attaches 
 to the unconstitutional act of an executive or judicial organ of 
 government. In addition to being subordinate to the provisions of 
 the state Constitution, every act of the state official or organ is 
 required to conform to the requirements of the federal Constitu- 
 tion, and this applies as well to the provisions of a state Constitu- 
 tion, as to the statutes of its legislature.
 
 2 UNITED STATES CONSTITUTIONAL LAW. 
 
 Elsewhere we shall have occasion to deal with the constitu' 
 tional tests to be applied to executive and judicial acts. In this 
 chapter we are concerned with the relation between statute and 
 constitutional law. 
 
 1. The Courts and Unconstitutional Laws. 
 
 The principle that statutory law, in order to be valid, must be 
 in conformity with constitutional requirements, is a product of 
 American jurisprudence, and peculiar to it. That -the acts of the 
 legislatures of subordinate politica^ units must agree with the 
 conditions and recognize the limits laid down by the superior 
 sovereign power is of course not peculiar to the United States ; 
 but that the legislative acts of the highest legislative body itself 
 are void if not warranted by the Constitution under which that 
 body is organized, is nowhere else admitted, neither in Eng- 
 land, which is without a written Constitution, nor in any other 
 Continental country which has one. 
 
 2. Marbury v. Madison. 
 
 The acceptance of this principle in the United States may be 
 dated from the decision by the Supreme Court in 1803 of the 
 case of Marbury v. Madison. 1 This point is of such transcendent 
 importance that the argument of Marshall will be given in 
 extenso. 
 
 " The question whether an act, repugnant to the Constitution, 
 can become the law of the land," says the great Chief Justice, " 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 principles, 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 
 
 11 Cr. 137; 2 L. ed. 60.
 
 SUPREMACY OF THE UNITED STATES CONSTITUTION. 3 
 
 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 dif- 
 ferent 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 lat- 
 ter description. The powers of the legislature are defined and 
 limited; and that those limits may not be mistaken, or forgotten, 
 the Constitution is written. . . . It is a proposition too plain to 
 be contested, that the Constitution controls any legislative act re- 
 pugnant 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 supreme paramount law, un- 
 changeable by ordinary means, or it is on a level with ordinary leg- 
 islative acts, and, like other acts, is alterable when the legislature 
 shall please to alter it. ... Certainly all those who have 
 framed written constitutions contemplate them as forming the fun- 
 damental and paramount law of the nation, and, consequently, the 
 theory of every such government must be that an act of the leg- 
 islature repugnant to the Constitution is void. ... 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 ? ... It is emphatically the province and 
 duty of the judicial department to say what the law is. ... 
 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, disregard- 
 ing 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 
 Constitution is superior to any ordinary act of the legislature, 
 tin- Constitution, and not such ordinary act, must govern the case 
 to which they both apply." 
 
 The reasoning of Webster and Kent as to the invalidity of
 
 4 UNITED STATES CONSTITUTIONAL LAW. 
 
 legislative acts contrary to the Constitution, and as to the power 
 of the court to declare them such, is substantially the same as 
 that of Marshall. 2 
 
 3. Criticism. 
 
 The force of tht reasoning of Marshall, Webster and Kent may 
 in somk respects IK questioned, or at least added to. 
 
 That organ or body which has the final power to interpret the 
 Constitution has necessarily the power to give to that in- 
 strument what meaning it will. It thus becomes, in a sense, 
 supreme over all the other organs of government. Unless, there- 
 fore, the body from whose action the Constitution itself derived 
 its force is to be resorted to in every case of doubtful construction 
 (and this, of course, is impracticable) the only alternative is to 
 delegate this supreme power to some one of the permanent organs 
 of government. But it does not necessarily follow, as the reason- 
 ing of Marshall, Webster and Kent would seem to indicate, that, 
 as an abstract proposition, this power must always be possessed by 
 the judiciary. Indeed, in all other countries except the United 
 States, this power is vested in the legislature. These other writ- 
 ten constitutions did not, indeed, exist at the time that Marshall 
 rendered his opinion, but their present existence shows that under 
 a written instrument of government it does not necessarily follow 
 that the courts should have a power to hold void legislative acts 
 contrary to its provisions. 
 
 If, then, the possession of this power by American courts is 
 to be established, it must be IDJ a resort either to the words of 
 
 - Webster declares : " The Constitution being the supreme law, it follows 
 of courae, that every act of the legislature contrary to the law must be void. 
 But who shall decide this question? Shall the legislature itself decide it? 
 If so, then the Constitution ceases to be a legal and becomes only a moral 
 restraint on the legislature. If they, and they only, are to judge, whether 
 their acts be conformable if> the Constitution, then the Constitution is admoni- 
 tory or advisory only, not legally binding; because, if the construction of 
 it rest wholly with them, their discretion, in particular cases, may be in 
 favor of very erroneous and dangerous constructions. Hence the courts of law, 
 necessarily, uhoi the case arises, must decide upon the validity of particular 
 acts." Webster, Works, Vol. Ill, 30.
 
 SUPREMACY OF THE UNITED STATES CONSTITUTION. 5 
 
 the Constitution itself; or, if these be not explicit, to the general 
 intention of the frainers and adopters of the Constitution, so far 
 as this intention may be deduced from the general nature of the 
 government sought to be established, from the records preserved 
 of the conventions in which the instrument was framed and 
 adopted, and from the precedents drawn from colonial practice, 
 if any such are to be found. We are not here concerned, it is to 
 be repeated, with the question whether the federal judiciary 
 should have the power to hold void such acts of the state legis- 
 latures as might contravene the provisions of the federal Con- 
 stitution. This is a distinct question and ia considered in its 
 proper place. We have here to deal with the power of the federal 
 courts to refuse to recognize the validity of such acts of the 
 Xational Legislature as it may consider unconstitutional, and of 
 state tribunals to hold void acts of their state legislatures because 
 contrary to their respective state Constitutions. 
 
 As regards state precedents prior to the adoption of the federal 
 Constitution it may be said that there are scarcely to be found a 
 sufficient number to warrant one in saying that the doctrine had 
 
 Kent, in his Commentaries, says: ''The Constitution is the act of the 
 people, speaking in their original character, and defining the permanent 
 conditions of the social alliance; and there can be no doubt on the point 
 with us, that every act of the legislative power contrary to the true intent 
 and meaning of the Constitution, is absolutely null and void. Tlie judicial 
 department is the proper power in the government to determine whether a 
 statute be or be not constitutional. The interpretation or construction of the 
 Constitution is as much a judicial act, and requires the exercise of the same 
 legal discretion, as the interpretation or construction of a law. To contend 
 that the courts cf justice must obey the requisitions of an act of the legis- 
 lature when it appears to them to have been passed in violation of the 
 Constitution, would be to contend that the law was superior to the Constitu- 
 tion, and that the judges had no right to lock into it, and regard it as a 
 ]caramount law. It would be rendering the power of the agent greater than 
 that of his principal and be declaring that the will of only one" concurrent 
 and co-ordinate department of the subordinate authorities under the Consti- 
 tution was absolute over the other departments, and competent to control, 
 according to its own will and pleasure, the whole fabric of the government, 
 and the fundamental laws on which it rested. Tlie attempt to impose re- 
 straints upon the exercise of the legislative power would be fruitless, if the 
 constitutional provisions were left without any power in the government to 
 guard and enforce them." Chapter XX.
 
 6 UNITED STATES CONSTITUTIONAL LAW. 
 
 become an established one in America in 1787, and therefore to 
 be presumed to have been held by the f ramers and adopters of the 
 federal Constitution. Still there had been a few instances in 
 which, prior to 1789, the courts had held void acts of their respec- 
 tive legislatures, though not without incurring more or less 
 animadversion for so doing. 
 
 Whatever may be the evidence of prior state or colonial 
 practice, it appears quite plainly from the proceedings of the con- 
 stitutional convention, as well as from the words of the Constitu- 
 tion itself, that it was intended that the courts should have the 
 power of disregarding unconstitutional legislative acts. The 
 greatest solicitude was constantly expressed that the national legis- 
 lative power should be prevented from encroaching upon the pow- 
 ers of the other departments of government, and a great variety 
 of schemes for preventing this were discussed. In addition to 
 the qualified presidential veto which was finally adopted, it was 
 expressly provided that the Constitution and the laws of the 
 United States made in pursuance thereof should be the supreme 
 law of the land, and that the federal judicial power should extend 
 to " all cases, in law and equity, arising under the Constitution." 
 From this would clearly appear an intention that the courts should 
 have the power to consider the constitutionality of legislative acts. 
 
 Marshall in his opinion in Marbury v. Madison adverts to 
 this, but does not, as he should have done, make it the foundation 
 of his argument. He says: " 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 ex- 
 amining the instrument under which it arises? This is too ex- 
 travagant to be maintained." After quoting certain prohibitions 
 of the Constitution upon legislative action, Marshall continues: 
 " 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
 
 SUPREMACY OF THE UNITED STATES CONSTITUTION. 
 
 ^ f ^' 
 
 take an oath to support it ? . . . It is also not entirely un- 
 worthy 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 Constitution, 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." 
 
 This last paragraph clearly exhibits the sequence of the argu- 
 ment in Marshall's mind. First is stated the abstract principle, 
 necessarily bound up with the idea of a written fundamental in- 
 strument of government, that the constitutionality of a legislative 
 act may be questioned by the courts. Then the validity of this 
 principle is supported by the express provisions of the Constitu- 
 tion itself. This first observed principle we have seen to be not a 
 necessary one. The entire argument should therefore have been 
 thrown upon the provisions of the Constitution itself interpreted 
 in the light of the intentions of its framers so far as these inten- 
 tions are discoverable from the debates in the federal constitu- 
 tional convention and the state ratifying conventions. 3 
 
 4. The Expediency of This Judicial Power. 
 
 As regards the expediency of granting to the courts rather than 
 to the legislature itself the final power of construing the Con- 
 
 3 It is generally stated that the power of the courts to declare void uncon- 
 stitutional laws is an implied one and not an expressly granted power. 
 Mr. JJrinton Coxe, however, in his interesting work, Judicial Power and 
 Unconstitutional Legislation, argues that the power is expressly given in the 
 clauses which have been quoted in the text, not expressly in the sense of 
 being unequivocally stated in so many words, but as being necessarily intended 
 by the words used, and not implied as a moans of rendering effective some 
 other expressly granted power. In other words, he says in effect, that the 
 power is expressly given even though a careful examination of the text is 
 required to determine the fact. To the author, however, it seems more satis- 
 factory to hold the power an implied one implied from the express authority 
 given to the federal courts to adjudicate all cases arising under the Constitu- 
 tion which is declared to be the supreme law of the land.
 
 8 UNITED STATES CONSTITUTIONAL LAW. 
 
 stitntion there would seem to be little doubt, though, there are 
 indeed some who still question it. 4 
 
 That it was the possible absorption of undue powers by the 
 legislature which the constitutional fathers expressly feared, there 
 is abundant evidence in the records of their views which have 
 been preserved. The following is but one of many similar quota- 
 tions that might be made. In the Federalist, 5 Madison writes: 
 " In a government where numerous and extensive prerogatives are 
 placed in the hands of an hereditary monarch, the executive de- 
 partment is very justly regarded as the source of danger and 
 watched with all the jealousy which a zeal for liberty ought to 
 inspire. . . . But in a representative republic, where the 
 executive magistracy is limited both in the extent and the dura- 
 tion of its power; and where the legislative power is exercised by 
 an assembly which is inspired by a supposed influcaice over the 
 people, with an intrepid confidence in its own strength, which is 
 
 * See for example American Law Review, XL, 356, article entitled "The 
 Great Usurpation," and Xorth American Review, August 16, 1907, article 
 entitled " Judicial Nullification, of Acts of Congress." 
 
 5 Xo. XLVI1I. 
 
 The argument, upon grounds of expediency, for giving the power to the 
 courts is stated by Webster and Kent as follows: Webster says: "It cannot 
 be denied that one great object of written constitutions is to keep the 
 departments of government as distinct as possible; and for this purpose to 
 impose restraints designed to have that effect. And it is equally true, that 
 there is no department on which it is more necessary to impose restraints 
 than the legislative. The tendency of things is almost always to augment the 
 power of that department in its relation to the judiciary. The judiciary 
 is composed of few persons, and those not such as mix habitually in the 
 pursuits and objects which most engage public men. They are not, or never 
 should be, political men. They have often unpleasant duties to perform, 
 and their conduct is often liable to be canvassed and censured, where their 
 reasons for it are not known, or cannot be understood. The legislature 
 holds the public purse. It fixes the compensation of all other departments; 
 it applies, as well as raises, all revenue. It is a numerous body and 
 necessarily carries along with it a great force of public opinion. Its 
 members are public men, in constant contact with one another, and with their 
 constituents. It would seem to be plain enough that, without constitutional 
 provisions which should be fixed and certain, such a department, in case of 
 excitement, would be able to encroach on the judiciary. Therefore is it. that 
 a security of judicial independence becomes necessary." Works, III, 29. 
 
 Kent declares: "From the mass of powers necessarily vested in the 
 legiclature, and the active and sovereign nature of these powers; from the
 
 SUPREMACY OF THE UNITED STATES CONSTITUTION. 9 
 
 sufficiently numerous to feel all the passions which actuate a mul- 
 titude, yet not so numerous as to be incapable of pursuing the 
 objects of its passions by all the means which reason prescribes, 
 it is against the enterprising ambition of this department that 
 the people ought to indulge all their jealousy and exhaust all 
 their precautions. . . . Its constitutional powers being at 
 once more exclusive and less susceptible of precise limits, it can, 
 with greater facility, mask under complicated and indirect 
 niui.snrc s, the encroachments that it makes on co-ordinate 
 departments." 
 
 5. Courts Do Not " Nullify " Laws. 
 
 The doctrine that an unconstitutional law is void is often 
 stated as a deduction from the premise that constitutional law is 
 a superior kind of law to which statute law of inferior rank is 
 obliged to yield. Accurately speaking, however, this is not the 
 ca-o, fur the unconstitutional statute is not law at all, whatever its 
 form or however solemnly enacted and promulgated. 
 
 There are not and cannot be degrees of legal validity. Any 
 given rule of conduct or definition of a right either is or is not 
 
 numerous bodies of which the legislature is composed, the popular sym- 
 pathies which it excited, and its immediate dependence upon the people by 
 n.i-ans of frequent periodical elections, it follows that the legislative depart- 
 ment of the government will have a decided superiority of influence. It is 
 constantly acting upon all the great interests of society, and agitating its 
 hopes and fcar. It is liable to be constantly swayed by popular prejudice and 
 ]'i>sion, and it is difficult to keep it from pressing with injurious weight 
 upon the constitutional rights and privileges of the other departments. An 
 independent judiciary, venerable by its gravity, its dignity and its wisdom, 
 am 1 , deliberating with entire serenity and moderation, is peculiarly fitted for 
 the exalted duty of expounding the Constitution, and taxing the validity 
 of statutes by that standard. It is only by the free exercise of this power 
 that courts of justice are enabled to repel assaults, and to protect every 
 part, of the government, and every member of the community, from undue 
 and destructive innovations upon their chartered rights. It nas accordingly 
 become a settled principle in the legal polity of this country, that it belongs 
 to the judicial power, as a matter of right and duty, to declare every act 
 of the legislature, made in violation of the Constitution, null and void." 
 Commentaries, Lect. XX.
 
 10 UNITED STATES CONSTITUTIONAL LAW. 
 
 law. When therefore we describe any particular measure as an 
 unconstitutional law, and therefore, of course, void, we are in 
 fact, strictly speaking, guilty of a contradiction of terms, for if 
 it is unconstitutional it is not a law at all; or, if it is a law, it 
 cannot be unconstitutional. Thus when any particular so-called 
 law is declared unconstitutional by a competent court of last resort, 
 the measure in question is not " vetoed " or " annulled," but 
 simply declared never to have been law at all, never to have been, 
 in fact, anything more than a futile attempt at legislation on the 
 part of the legislature enacting it. This is a very important 
 point, for did the decision of the court operate as a veto the effect 
 would be simply to hold that the law should cease to be valid from 
 and after the time such decision was rendered, whereas, in fact, 
 the effect is to declare that the law never having had any legal 
 force no legal rights or liabilities can be founded upon it. In 
 Norton v. Shelby Co., 6 Mr. Justice Field says : " An unconstitu- 
 tional act is not a law, it confers no rights, it imposes no duties, it 
 affords no protection, it creates no' office; it is, in legal contempla- 
 tion, as inoperative as 1 hough it had never been passed." 
 
 An exception to this doctrine, and, to the author's mind, an 
 illogical and ill-considered one, is that made by the Supreme 
 Court in Gelpeke v. Dubuque 7 and the cases affirming it. 8 In 
 these cases it has been held that while a decision of the highest 
 court of a State holding void an act of the State because in con- 
 flict with the Constitution of that State will be followed by the 
 federal Supreme Court as to all rights of action accruing after 
 the rendition of such decision, it will not be applied to earlier 
 transactions entered into when the law in question had been 
 declared valid by the state courts and these transactions had been 
 entered into in good faith confiding in the decision of the courts 
 upholding the law. 9 
 
 118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 178. 
 U Wall. 175; 17 L. ed. 520. 
 
 8 See section 5-17. There are also some other exceptions, among which is the 
 validity given to acts of de facto officers and de facto corporations whose 
 tenure of office or existence is based upon statutes later held unconstitutional. 
 
 9 It may also be proper to observe that acts committed by persons exercis- 
 ing in good faith powers conferred by acts later held unconstitutional are some-
 
 SUPREMACY OF THE UNITED STATES CONSTITUTION. 11 
 
 In declaring unconstitutional, and therefore void, the enact- 
 ment of a legislative body, it has sometimes been argued that a 
 court defeats the will of the .people as whose law-making organ and 
 mouthpiece the legislature acts. In truth, however, what is done 
 is this: The people, acting solemnly and deliberately in their 
 sovereign capacity, declare that certain matters shall be deter- 
 mined in a certain way. These matters, because of their great 
 and fundamental importance, they reduce to definite written form, 
 and declare they shall not be changed except in a particular man- 
 ner. In addition to this they go on to say, in substance, that so 
 decided is their will, and so maturely formed their judgment, upon 
 these matters, that any act of their own representatives in legis- 
 lature inconsistent therewith, is not to be taken as expressing their 
 deliberate will. Therefore, when the courts declare void legisla- 
 tive acts inconsistent with constitutional provisions, the judges are 
 giving effect to the real will of the people as they have previously 
 solemnly declared it. Thus, " In exercising this high authority, 
 the judges claim no judicial supremacy; they are only the ad- 
 ministrators of the public will. If an act of the legislature is 
 held void, it is not because the judges have any control over the 
 legislative power, but because the act is forbidden by the Con- 
 stitution, and because the will of the people, which is therein de- 
 clared, is paramount to that of their representatives expressed in 
 any law." 10 
 
 times given a certain validity. This, however, is in accordance with a general 
 principle governing dc facto officers and is hardly to be treated as an exception 
 to the doctrine stated in the text. In United States v. Realty Co. ( 163 U. S. 
 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215) it was held that persons acting in 
 good faith under an unconstitutional act of Congress might have an equitable 
 claim against the United States, for the payment of which an appropriation 
 might be made by Congress. 
 
 10 Lindsay v. Commissioners, 2 Ray, 38, 61.
 
 CHAPTEE H. 
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 
 
 6. Circumstances Under Which the Courts Will Hold an Act 
 of Congress Void. 
 
 Because an act of Congress is the declaration of a co-ordinate 
 branch of the National Government, the courts have established 
 for themselves certain more or less definite rules governing the 
 conditions under which they will undertake to pass upon the con- 
 stitutionality of federal statutes. These rules are self-established, 
 under a sense of propriety and expediency, and are not .created 
 by any constitutional necessity. 1 
 
 1. Courts of first instance will not hold an act unconstitutional 
 except in clear cases, but will leave this to the final judgment of 
 the higher courts. Inferior courts hold themselves bound by the 
 prior decisions of superior courts as to the validity of an act, even 
 though new reasons, pro or contra, are raised. The presumption 
 is that all possible arguments were in fact considered by the 
 superior courts. 
 
 2. The Supreme Court has held that, ordinarily, it will not 
 hold a law void except by a majority of the full bench. Thus, 
 in 1825, the Court of Appeals of Kentucky refused to follow a 
 decision of the Supreme Court of the United States, which had 
 held a law of Kentucky void as contrary to the federal Constitu- 
 tion, stating as a reason that the decision had not been concurred 
 in by a majority of the entire court. 2 After this occurrence the 
 Supreme Court adopted the rule as stated above. In ISTew York v. 
 Miln, 3 decided in 1834, Marshall said: "The practice of this 
 court is not (except in cases of absolute necessity) to deliver 
 any judgment in cases where constitutional questions are in- 
 volved, unless four justices [the court. then consisted of seven] 
 
 1 Cf. the enumeration of these rules by Cooley in his Const. Lim., Chap. VII. 
 
 2 Bodley v. Gaither, 3 Monroe, 57. 
 
 3 8 Pet. 120 ; 8 L. ed. 888. 
 
 [12]
 
 PBIXCIP:LES or COXSTITUTIOXAL COXSTEUCTIOX. 13 
 
 concur in the opinion, thus making the decision that of a majority 
 of the whole court. In the present cases four justices do not con- 
 cur in opinion as to the constitutional questions which have been 
 argued. The court therefore direct these cases to be reargued at 
 the next term, under the expectation that a larger number of the 
 judges may then be present." 
 
 3. The courts will not pass upon the constitutionality of a law 
 except in suits duly brought before them at the instance of 
 parties whose material interests are involved. 4 
 
 * Advisory Opinions: The following data regarding Advisory Opinions is 
 largely taken from Tbayer, Cases on Constitutional Law, I, 175. 
 
 The constitutions of four of the States (Massachusetts, Maine, New Hamp- 
 shire, Rhode Island) provide that upon request by the executive or legislature, 
 the judges of the highest courts shall render an opinion upon the constitu- 
 tionality of a proposed measure submitted to them. And six States (Colorado, 
 Florida, Idaho, Illinois, Nebraska, Washington ) provide tliat judges may 
 suggest improvements in the law for legislative action. (Dealey, Our State 
 Constitutions, p. 40, Annals of the American Academy of Political and Social 
 Science. Supplement, March, 1907.) 
 
 In general it may be said that these opinions thus obtained are purely 
 advisory in character, and that they do not even constitute judicial pre- 
 cedents to control the future judgments of the courts that render them. This 
 has been definitely declared in Massachusetts, New Hampshire, Rhode Island, 
 .Missouri (where the practice existed from 1865 to 1875) and Florida. In 
 Maine and Colorado, however, these decisions have been held binding. (12 
 Col. Rept. 406. 70 Maine, p. 503). The Maine -court said: "Various questions 
 involving the true construction of the Constitution and statutes . . . arose, 
 and the Governor called upon this court for its opfnion on the questions 
 propounded. The court was required by the Constitution to expound and 
 construe the provisions of the Constitution and statutes involved. It gave 
 full answers. The opinion of the court was thus obtained in one of the modes 
 provided in the Constitution for an authoritative determination of ' important 
 questions of law.' The law thus determined is the conclusive guide of the 
 Governor and Council in the performance of their ministerial duties. Any 
 action on their part ... in violation of the Constitution and law thus de- 
 clared is a usurpation of authority and must be held void." 
 
 Despite Maine and Colorado, the weight cf precedent, as well as the better 
 reason and wisdom, is in favor of holding such opinions advisory merely. 
 Such decisions do not arise out of or relate to any particular facts or 
 particular purpose which might explain or limit the generality of their state- 
 ments. The judges have not had the benefit of the hearing of counsel, and 
 there has been no argument before them. 
 
 The opinions of the Attorney-General of the United States resemble in 
 their advisory character these opinions of judges.
 
 14 UNITED STATES CONSTITUTIONAL LAW. 
 
 4. The court will not pass adversely upon the validity of an act 
 of Congress unless it is absolutely necessary for it to do so in order 
 to decide the question at issue. This principle has been so often 
 
 declared that the citation of authorities is not necessary. 5 
 
 ___^ ' 
 
 A number of instances have occurred in which justices in States, whose 
 Constitutions did not give the legislature or executive this power to call for 
 their opinions, have refused to give them when called upon to do so. Es- 
 pecially in Minnesota (10 Minn. 78, 1865) the court held unconstitutional an 
 act which provided that " either house may by resolution require the opinion 
 of the Supreme Court or any one or more of the judges thereof upon a given 
 subject, and it shall be the duty of such court, or judges thereof, when so 
 requested respectively to give such opinions in writing." 
 
 The Pennsylvania court, however, in a similar case, gave the desired opinion 
 without comment. (3 Binney, 595.) 
 
 In several cases, justices have refused, even in those States where the power 
 to call for an opinion is in the Constitution, to give an opinion upon questions 
 which it was possible might afterward come before thorn for adjudication. 
 Instances of this occurred several times in Missouri and once in Maine. 
 
 In the Constitutional Convention of 1787 it was proposed to give this 
 power to the President and Congress and to ask opinions of the Supreme Court, 
 but nothing came of it. (5 Ell. Deb. 445.) 
 
 In 1793 Washington asked the opinion of the Supreme Court in re Jay's 
 Treaty. Twenty-nine questions were propounded. The Court refused to 
 answer. Thayer thinks it fortunate that this first request should have come 
 in so weighty a form, else the court might have slipped into an unfortunate 
 precedent, and thus become concerned in politics. 
 
 " New York originally not only gave her legislators a share in judicial 
 power, but her judges a share in that of legislation. Her Constitution of 1777 
 provided for a council of revision, consisting of the Governor, the Chancellor, 
 and the judges of the Supreme Court, to whom all bills which passed the 
 Senate and Assembly should be presented for consideration; and that if a 
 majority of them should deem it improper that any such bill become a law 
 they should within ten days return it with their objections to the house 
 in which it originated, which should enter the objections at large in its 
 minutes, and proceed to reconsider the bill; and that it should not become a 
 law unless repassed by a vote of two-thirds of the members of each house. 
 For forty years this remained the law, and the Council of Revision contained 
 from time to time judges of great ability, Chancellor Kent being one. During 
 this period, 6590 bills in all were passed. One hundred and twenty-eight of 
 them were returned by the Council with their objections, and only seventeen 
 of these received the two-thirde necessary to re-enact thorn." Baldwin, The 
 American Judiciary, p. 30. 
 
 s In Marbury v. Madison the Supreme Court, although it declared that it 
 had not jurisdiction of the case, went on to lay down the law applicable to the 
 other points at issue. The excuse for so doing was that the court felt itself
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 15 
 
 5. When it is possible to do so without doing too great violence 
 to the words actually used, the language of a statute will be so re- 
 obligated first to determine whether or not the mandamus asked for should 
 issue, so that, if possible, it might dispose of the case without calling into 
 question the constitutionality of the act of Congress granting the original 
 jurisdiction under which the suit had been brought. Whether this was a 
 sufficient excuse is doubtful. Jefferson was vehement in criticism of the action. 
 
 In the Dred Scott case the Supreme Court after holding that the lower 
 federal courts from which the case had come by appeal, had had no jurisdic- 
 tion, went on to discuss the other points raised in the record before it. The 
 propriety of this course was strenuously objected to by the minority justices. 
 Taney's argument was that the plea to the jurisdiction that had been 
 entered was not as to the jurisdiction of the Supreme Court, but as to 
 that of the circuit court in which the suit had been begun, and that, 
 therefore, the case being fairly before the Supreme Court, that tribunal 
 might examine the whole record and correct any errors that might have been 
 made by the courts below. " There can be no doubt of the jurisdiction of 
 this court to reverse the judgment of a circuit court, and to reverse it for 
 any error apparent in the record, whether it be the error of giving judgment 
 in a case over which it had no jurisdiction, or any other material error; and 
 this too, whether there is any plea in abatement or not. The objection 
 appears to have arisen from confounding writs of error to a state court, with 
 writs of error to a circuit court of the United States. Undoubtedly, upon 
 a writ of error to a state court, unless the record shows a t:ase that gives 
 jurisdiction, the case must be dismissed for want of jursidiction in the court. 
 And if it is dismissed on that ground, we have no right to examine and 
 decide upon any question presented by the bill of exceptions, or any other 
 part of the record. But writs of error to a state court and to a circuit court 
 of the United States are regulated by different laws, and stand upon entirely 
 different principles. And in a writ of error to a circuit court of the United 
 States, the whole record is before this court for examination and decision; 
 and if the sum in controversy is large enough to give jurisdiction, it is not 
 only the right, but it is the judicial duty of the court to examine the whole 
 case as presented by the record, and if it appears xipon its face that any 
 material error or errors have been committed by the court below, it is the 
 duty of this court to reverse the judgment and remand the case. And 
 certainly an error in remanding a judgment upon the merits in favor of 
 either party, in a case in which it was not authorized to try, and over which 
 it had no jurisdiction, is as grave an error as a court can commit." 
 
 Justice Curtis in his, dissenting opinion showed by a citation of authority 
 that the foregoing had not in fact been the practice and declared doctrine 
 of the Supreme Court, and properly said that, especially, the court should 
 not have proceeded in the case to declare unconstitutional an act of Congress 
 in violation of the principle that this will not be done when it is possible 
 to render a judgment upon any other ground.
 
 16 UNITED STATES CONSTITUTIONAL LAW. 
 
 stricted as to render the measure constitutional. 6 For it is always 
 presumed that Congress did not intend to exceed its constitutional 
 powers. Where, however, the scope of the law is plainly ex- 
 pressed, and as such is unconstitutional, the court will not resort 
 to a strained or arbitrary interpretation in order to render the 
 law yalid. Thus in Howard v. Illinois Central R. Co. 7 the 
 court declined to restrict the terms of a law with reference to 
 the liability of a common carrier for injury to " any of its 
 employees " to such employees only as should be injured while 
 engaged in interstate commerce, and thereby to render the 
 statute valid as applied within the States. 8 
 
 6 " It is elementary when the constitutionality of a state is assailed, if the 
 statute be reasonably susceptible of two interpretations, by one of which it 
 
 -would be unconstitutional and by the other valid, it is our plain duty to adopt 
 that construction which will save the statute from constitutional infirmity. 
 Knights Templars Indemnity Co. v. Jarman (187 U. S. 107; 23 Sup. Ct. Rep. 
 108; 47 L. ed. 139). And unless this rule be considered as meaning that our 
 duty is to first decide that a statute is unconstitutional and then proceed to 
 hold that such ruling was unnecessary because the statute is susceptible of a 
 meaning, which causes it not to be repugnant ta the Constitution, the rule 
 plainly must mean that where a statute is susceptible of two constructions, 
 by one of which grave and doubtful constitutional questions arise and by the 
 other of which such question^ are avoided, our duty is to adopt the latter." 
 United States v. D. & H. Ry. Co., 213 U. S. 366; 29 8up. Ct. Rep. 527; 53 L. 
 ed. 836. 
 
 7 207 U. S. 463 ; 28 Sup. Ct. Rep. 141 ; 52 L. ed. 297. 
 
 " The principles of construction invoked are undoubted, but are inapplicable. 
 Of course, if it can be lawfully done, our duty is to construe the statute 
 so as to render it constitutional. But this does not imply, if the text of 
 an act is unambiguous, that it may be rewritten to accomplish that purpose. 
 Equally clear is it, generally speaking, that where a statute contains pro- 
 visions which are constitutional and others which are not, effect may be 
 given to the legal provisions by separating them from the illegal. But this 
 applies only to a case where the provisions are separable, and not dependent 
 one upon the other, and does not support the contention that that which 
 is indivisible may be divided. Moreover, even in a case where legal provisions 
 may be severed from those which are illegal, in order to save, the rule 
 applies only where it is plain that Congress would have enacted the legisla- 
 tion with the unconstitutional provisions eliminated. All these principles are 
 so clearly settled as not to be open to controversy. They were all, after a 
 full review of the authorities, restated and reappiied in a recent case. Illinois 
 C. R. Co. v. McKer.dree (203 U. S. 514; 27 Sup. Ct. Rep. 153; 51 L. ed. 298)." 
 The minority in this case assert that the court might properly have so 
 restricted the operation of the act in question as to render it constitutional.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTEUCTION. 17 
 
 In James v. Bowman 9 is again illustrated the refusal of the 
 court to limit the express terms of an act of Congress in order to 
 render it constitutional. In this case the court declined, by judi- 
 cial construction, to limit the application of a statute to federal 
 elections which in terms provided for the punishment of bribery 
 committed at all elections, federal and state. To do so, the court 
 declared, would be judicial legislation. f( It would be wresting 
 the statute from the purpose with which it was enacted and mak- 
 ing it serve another purpose. Doubtless even a criminal statute 
 may be good in part and bad in part, provided the two can be 
 clearly separated, and it is apparent that the legislative body 
 would have enacted the one without the other, but there are no 
 two parts to this statute." 
 
 6. The court will not permit the unconstitutionality of a par- 
 ticular provision of a law to invalidate the entire law if it is 
 possible to separate the invalid provision from the other provisions 
 
 In United States v. Reese < 02 U. S. 214; 23 L. ed. 563) the court say: 
 " We are, therefore, directly called upon to decide whether a penal statute, 
 enacted by Congres?, with its limited powers, which is in general language 
 broad enough to cover wrongful acts without as well as within the constitu- 
 tional jurisdiction, can be limited by judicial construction so as to make it 
 operate only on that which Congress may rightfully prohibit and punish. 
 For this purpose we must take these sections of the statute as they are. 
 We are not able to reject a part which is unconstitutional and retain the 
 remainder, because it is not possible to separate that which is unconstitu- 
 tional, if there be any such, from that which is m>t. The proposed effect 
 is not to be attained by striking out or di-regardlng words that are iu 
 the section, but by inserting those that are not now there. Each of the 
 sections must stand as a whole, or fall altogether. The language is plain. 
 There is no room for construction, unless it be as to the effect of the 
 Constitution. The question, then, to be determined, is whether we can intro- 
 duce words of limitation into a penal statute so as to make it specific, when, 
 as expressed, it is general only." 
 
 And in the Trade-Mark Cases (100 U. S. S2 : 2.", L. ed. 550) the court say: 
 " If we should, in the case before us, undertake to make, by judicial con- 
 struction, a law which Congress did not make, it is quite probable we should 
 do what, if the matter were now before that body, it would be unwilling to 
 do; namely, make a trade-mark law which is only partial in its operation, 
 and which would complicate the rights which parties would hold, in some 
 instances, under the act of Congress, and in others under state law." 
 
 190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979. 
 
 2
 
 18 UNITED STATES CONSTITUTIONAL LAW. 
 
 without destroying or impairing their efficiency to attain the re- 
 sults evidently intended by the legislation that enacted it. Even 
 when thus separable, however, the court will not hold the 
 remainder of the law valid if there is doubt whether, the realiza- 
 tion of the whole of its will being rendered impossible, the legis- 
 lature would have desired the execution of a part only. Thus in 
 the case of Howard v. Illinois C. K. Co.,' 10 cited in the foregoing 
 section, the court having held that the act by its terms related to 
 intrastate as well as interstate commerce, declined to hold the act 
 valid even as to employees engaged in interstate commerce. 
 The court say: "As the act before us, by its terms, relates 
 to every common carrier engaged in interstate commerce, and to 
 any of the employees of every such carrier, thereby regulating 
 every relation of a carrier engaged in interstate commerce with 
 its servants and of such servants among themselves, we are unable 
 to say that the statute would have been enacted had its provisions 
 been restricted to the limited relations of that character which it 
 was within the power of Congress to regulate." n 
 
 7. Legislative Motives. 
 
 With the motives of the legislators the courts cannot concern 
 themselves. " The judiciary can only inquire whether the means 
 devised in the execution of a power granted are forbidden by the 
 Constitution. It cannot go beyond that inquiry without intrench- 
 ing upon the domain of another department of government. That 
 it may not do with safety to our institutions." 12 
 
 10 207 U. S. 4G3 ; 28 Sup. Ct. Rep. 141 ; 52 L. ed. 297. 
 
 "Citing Trade Mark Cases, 100 U. S. 82; 26 L. ed. 550; Cooley, Const. 
 JLim. 178. 
 
 12 Interstate Commerce Commission v. Brimson, 154 U. S. 447 ; 14 Sup. Ct. 
 Eep. 1125; 38 L. ed. 1047. 
 
 " So long as Congress keeps within the limits of its authority as defined 
 by the Constitution, infringing no rights recognized or secured by that in- 
 stiument, its regulations of interstate and international commerce, whether 
 founded in wisdom or not, must be submitted to by all. ... To depart 
 from [this rule of construction] because of the circumstances of special cases, 
 or because the rule, in its operation, may possibly affect the interests of 
 business is to endanger the safety and integrity of our institutions and make 
 the Constitution mean not what it says but what interested parties wish 
 it to mean at a particular time and under particular circumstances. . . .
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 19 
 
 In Ex parte McCardle 13 the court declined to take appellate 
 jurisdiction because of the enactment by Congress of a law 
 which it was well known had been passed for the express pur- 
 pose of preventing the court from questioning the constitution- 
 ality of certain measures which the Federal Government had taken 
 for the " Reconstruction " of the Southern States after the 
 termination of the Civil War. " We are not at liberty," said the 
 court, '' to inquire into the motives of the legislature. We can 
 only examine into its power under the Constitution; and the 
 power to make exceptions to the appellate jurisdiction of this 
 court is given by express words." 14 
 
 8. Expediency and Reasonableness of Legislation not Subject 
 to Judicial Determination. 
 
 The power of Congress to legislate being conceded, the wisdom 
 or expediency of the manner in which the power is exercised is 
 beyond judicial criticism or control. 15 
 
 If the statute is beyond the constitutional power of Congress, the court would 
 err in the performance of a solemn duty if it did not so declare. But if 
 nothing more can be said than that Congress erred . . . the remedy for 
 the error and the attendant mischief is the selection of new Senators and 
 Representatives, who, by legislation, will make such changes in existing 
 statute.*, or adopt such new statutes, as may be demanded by their constitu- 
 ents and be consistent with law." Northern Securities Co. v. United States 
 (193 U. S. 197; 24 Sup. Ct. Rep. 436; 48 L. ed. 679). 
 
 137 Wall. 506; 19 L. ed. 264. 
 
 "In McCray v. United States (195 U. S. 27; 24 Sup. Ct. Rep. 769; 49 
 L, ed. 78) the authorities upon this point are reviewed, the court saying: 
 " The decisions of this court from the beginning lend no support whatever 
 to the assumption that the judiciary may restrain the exercise of lawful 
 power on the assumption that a wrongful purpose or motive has caused the 
 power to be exerted. . . . On the contrary, the doctrine of a number of 
 cases is inconsistent with its existence." 
 
 is In Treat v. White (181 U. S. 264; 21 Sup. Ct. Rep. 611; 45 L. ed. 853) 
 with reference to a stamp duty levied by Congress, the court say: "The 
 power of Congress in this direction is unlimited. It does not come within 
 the province of this court to consider why agreements to sell shall be subject 
 to the stamp duty, and agreements to buy not. It is enough that Congress, 
 in this legislation, has imposed a stamp duty upon this one, and not upon 
 the other." In Patton v. Brady (184 U. S. 608; 22 Sup. Ct. Rep. 493; 46 
 L. ed. 713) the court say: "It is no part of the function of a court to 
 inquire into the reasonableness of the excise, either as regards the amount 
 or the property upon which it is imposed."
 
 20 UXITED STATES CONSTITUTIONAL LAW. 
 
 9. Presumption in Favor of the Constitutionality of an Act of 
 Congress. 
 
 The fact that Congress has given a particular construction to 
 a constitutional provision, is of very great weight with the Su- 
 preme Court when it is called upon to examine the correctness 
 of this interpretation. This is due to the fact that the court is 
 dealing with the act of a separate and independent department 
 of government which the Constitution intends to be, so far as 
 possible, co-ordinate in power with the executive and judicial 
 departments, that is, co-ordinate in the sense that, like them, when 
 acting within the limits of the power constitutionally granted it, 
 it shall be independent of control by the others. 
 
 From necessity the Constitution must have intended that the 
 legislative and executive departments should have the power, in 
 the first instance at least, of determining the extent of the powers 
 constitutionally granted to them, and that, therefore, the judiciary 
 should not substitute its judgment for theirs except in cases where 
 there is no doubt that the action which has been taken is not 
 constitutionally warranted. 
 
 "A dtecent respect for a co-ordinate branch of the Federal Gov- 
 ernment/' says Justice Strong in Knox v. Lee, 1G " demands that 
 the jiudixjiary 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 obligation of an oath of 
 fidelity to the Constitution." 
 
 And in the Sinking Fund Cases 17 Chief Justice "VTaite says: 
 '' The declaration [that an act of Congress is void] should never 
 be made except in a clear case. Every possible presumption is 
 in favor of the validity of a statute and this continues until the 
 contrary is shown beyond a rational doubt." 
 
 In Ogden v. Saunders 18 Justice Washington says : " It is but 
 a decent respect due to the . . . legislative body, by which 
 any law is passed, to presume in favor of its validity, until the 
 
 ra 12- WaH. 457 ; 20 L. ed. 287. 
 U. S. 700; 25 L. ed. 496. 
 Wh. 213; 6 L. ed. 606.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 21 
 
 violation of the Constitution is proved beyond all reasonable 
 doubt." 
 
 Quotations similar to those given might be multiplied, aH in 
 substance stating this general rule, declared by the Supreme Court 
 from the first years of its existence, that an act of Congress, with 
 reference to its constitutionality, is to receive the benefit of every 
 reasonable doubt. 19 
 
 19 This principle of construction lias received a most philosophical examina- 
 tion in the essay of Professor Thayer, entitled The Origin and Scope of the 
 American Doctrine of Constitutional Laic, and from this source the substance 
 of the immediately following paragraphs are taken. 
 
 In giving to a legislative interpretation the benefit of every rational doubt 
 as to its constitutionality, the court in effect says, that it does not attempt 
 to say what its own best judgment is as to the point at issue, but whether 
 it is within the limits of reason for the legislature to give to the Consti- 
 tution the construction it has given. The case is thus quite similar to the 
 function of a judge when called upon to set aside the verdict of a jury, or of 
 a jury when passing upon the question of self-defense in a criminal trial, 
 or of negligence in an action of tort, or the responsibility of an inferior for 
 acts done at the order of a superior. " The doctrine," says Thayer, "... 
 is this, that in dealing with the legislative action of a co-ordinate depart- 
 ment, a court cannot always, and for the purpose of all sorts of questions, 
 say that there is but one right and permissible way of construing the 
 Constitution. When a court is interpreting a writing merely to ascertain 
 or apply its true meaning, then, indeed, there is but one meaning allowable; 
 namely, that which the court adjudges to be its true meaning. But when 
 the ultimate question is not that, but whether certain acts of another depart- 
 ment, officer, or individual are legal or permissible, then this is not true. 
 In the class of cases which we have been considering, the ultimate question is 
 not what is the true meaning of the Constitution, but whether legislation 
 is sustainable or not." 
 
 Again, Thayer says : " The courts havo perceived with more or less distinct- 
 ness that this exercise of the judicial function does in truth go far beyond 
 the simple business which its judges sometimes describe. If their duty were 
 in truth merely and nakedly to ascertain the meaning of the text of the 
 -itution and of the impeached act of the legislature, and to determine 
 a? an academic question, whether in the court's judgment the two were in 
 conflict, it would, to be sure, be an elevated and important oflice. one dealing 
 with great matters, involving large public considerations, but yet a function 
 far simpler than it really is. Having ascertained all this, yet there remains 
 a question the really momentous question whether, after all. the court 
 can disrosrard the act. It cannot do tin- as a mere matter of course merely 
 because it is concluded that upon a ju*t and true construction, the law is 
 unconstitutional. , . It can onlv disregard the act \\hen those who have
 
 22 UNITED STATES CONSTITUTION.*! LAW. 
 
 10. Presumption in Favor of the Constitutionality of a State 
 
 Statute. 
 
 The rule of construction that has been under consideration has 
 especial application to acts of Congress. When the constitution- 
 ality of a state law is involved, the principle is not always appli- 
 cable. If the question at issue is as to whether a given power 
 resides in the Federal Government or in the States, the fact that 
 a state legislature in its enactment has asserted that it is vested 
 in the 'States, is no presumption in favor of the validity of this 
 
 the right to make . laws have not merely made a mistake, but have made a 
 very clear one, so clear that it is not open to rational question. That is 
 the standard of duty to which courts bring legislative acts: that is the 
 test which they apply, not merely their own judgment as to constitution- 
 ality, but their conclusion as to what judgment is permissible to another 
 department which the Constitution has charged with the duty of making it. 
 This rule recognizes that, having regard to the great, complex, ever-unfolding 
 exigencies of government, much which will seem unconstitutional to o:ie 
 man, or body of men, may reasonably not seem so to another ; that the 
 Constitution admits of different interpretations; that there is often a range 
 and choice of judgment; that in such cases the Constitution does not impose 
 upon the legislature any one specific opinion, but leaves open this range of 
 choice; and that whatever choice is rational is constitutional." 
 
 Judge Baldwin, in his work on The American Judiciary (p. 103), asserts 
 that, inasmuch as the judgment of the Supreme Court holding unconstitutional 
 an act of Congress is often, and indeed usually, rendered by a divided court, 
 the principle that a congressional statute will not be held void so long as 
 there is a reasonable doubt as to its invalidity, is not applied. " The majority 
 must concede," he says, " that there is a reasonable doubt whether the stat- 
 ute may not be consistent with the Constitution, since some of their associates 
 must have such a doubt, or go further and hold that there is no inconsistency 
 between the two documents, the statute and the Constitution." This argu- 
 ment is not convincing. Admitting that either one or the other of the two 
 opinions must be conceded to the dissenting justices, it does not follow that 
 the doctrine of reasonable doubt is shown to be repudiated. The question 
 which the Supreme Court, as a court, has to decide is as to the existence 
 of this reasonable doubt. There may of course be a difference of opinion 
 as to this, but it is still this fact which the court seeks to determine and 
 which controls its decision. It is no more proper to say that the principle 
 is repudiated when the court is not unanimous, than to hold that in passing 
 by a divided court upon a question of contributory negligence, the principle 
 of reasonable doubt is not applied. 
 
 As to whether in recent years courts in fact are guided by the rule 
 under consideration, see article by W. F, Dodd, " Growth of Judicial Power," 
 in Pol. Sci. Quar. XXIV, 193.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 23 
 
 decision. The Supreme Court in passing finally upon this point 
 is not, then, called upon to review the act of a co-ordinate depart- 
 ment, but has to decide between the conllictiug claims of two 
 governments, and, quite properly, feels itself at liberty to decide 
 the point as an original proposition ; namely, upon the basis of its 
 own judgment as to what is the most reasonable construction of 
 the constitutional provisions involved. 
 
 If, however, the state law, whose constitutionality is questioned, 
 is with reference to a matter admittedly within the province of 
 the States, and the question is simply whether that power has 
 been properly exercised, there is held to be a strong presumption 
 that the act is constitutional. Thus, for example, if it is a ques- 
 tion whether the States have the power to regulate interstate com- 
 merce, or to tax a national bank, or to naturalize aliens, or enact 
 bankruptcy laws, there is no presumption in favor of the consti- 
 tutionality of acts in which' the state power is asserted. If, 
 however, it is a question, for example, whether the police powers, 
 admittedly belonging to the States, have been constitutionally 
 exercised, the presumption is that they have been so exercised. 
 
 An excellent illustration of this last, is seen in the treatment 
 by the Supreme Court of the oleomargarine laws of Pennsylvania 
 in the case of Powell v. Pennsylvania, 20 decided in 1887. The 
 plaintiff in error had been indicted for selling oleomargarine, 
 plainly marked as such, in violation of a Pennsylvania law 
 absolutely forbidding the sale and production of that commodity 
 within the State. Powell offered to prove that the oleomargarine 
 was pure and as wholesome as butter, and that, in fact, it 
 differed from butter only in that it had a slightly smaller 
 per cent of a substance termed butterine, which gave a flavor 
 to but had nothing to do with the wholesomeness of the 
 product. He claimed, therefore, that a law forbidding the 
 production and sale of this article was not a proper exercise 
 of the police powers of the State, and operated to deprive 
 him of that liberty and property which the Fourteenth Amend- 
 ment to the federal Constitution guaranteed him. The Supreme 
 
 a>127 U. S. 678; 8 Sup. Ct. Rep. 992; 32 L, ed. 253.
 
 24 UNITED STATES CONSTITUTIONAL LAW. 
 
 Court of the United States, without questioning the facts asserted 
 regarding the wholesomeness of oleomargarine, upheld the state 
 law, declaring that it could not '' adjudge that the defendant's 
 rights of liberty and property have been infringed by the statute 
 of Pennsylvania, without holding that, although it may have been 
 enacted in good faith for the objects expressed in its title, namely, 
 to protect the public health and prevent the adulteration of dairy 
 products and fraud in the sale thereof, it has, in fact, no real or 
 substantial relation to those objects." This, the Supreme Court 
 said, it could not affirm. Whether or not the law is needed as a 
 protection to the public, the court declared to be a question of fact 
 belonging primarily to the state legislature to determine. "And," 
 the court continued, " as it does not appear upon the face of the 
 statute, or from any facts of which the court must take judicial 
 cognizance, that it infringes rights secured by the fundamental 
 law, the legislative determination of those questions is conclusive 
 upon the courts." 
 
 When the federal Supreme Court is called upon to consider the 
 constitutionality of a state law as determined by its conformity 
 with the Constitution of the State, the state Constitution is con- 
 strued as having for its general purpose the placing of limitations 
 upon the powers of the legislature ; Avhereas, of course, the federal 
 Constitution is viewed as a grant of legislative power. In other 
 words, whereas the federal legislature is construed to have only 
 those powers granted to it expressly or impliedly by the federal 
 Constitution, the state legislatures are considered to possess all 
 powers not expressly or impliedly withdrawn from them by the 
 federal or respective state Constitutions. 
 
 In those cases in which the courts of the States are called upon 
 to consider the constitutionality of the acts of their own law- 
 making bodies as tested by the federal or their own state Con- 
 stitutions, they of course have to deal with the acts of a depart- 
 ment of government co-ordinate in power with themselves ; and, 
 therefore, they hold themselves, or at least should hold themselves, 
 bound in all cases to give to the laws that same benefit of rational 
 doubt which the federal Supreme Court gives to acts of Congress.
 
 PRINCIPLES OF COXSTITUTIOXAL CONSTRUCTION. 25 
 
 In concluding this subject, it is proper to observe that this pre- 
 liminary legislative or executive interpretation of constitutional 
 ] u \virs. having such an importance as we have seen attached to it r 
 the responsibility for its proper exercise is proportionately great. 
 Those legislators, therefore, who vote for a measure without being 
 honestly convinced of its constitutionality, and excuse them- 
 selves upon the ground that, if their action is not valid, the courts 
 have the opportunity to so declare, are recreant to their duty. Xot 
 only, as we have seen, may serious consequences follow from these 
 
 before their invalidity is judicially determined, but, what is 
 <>f -till more importance, an unfortunate burden is thrown upon 
 the courts. Xo popular government can successfully endure in 
 which the decisions of its courts do not receive the general ap- 
 proval of the citizen body. But if legislatures recklessly pass 
 measures ostensibly for the benefit of the masses, but invalid when 
 
 1 by the fundamental law, the odium of defeating these meas- 
 uiv- is thrown upon the courts, and a popular objection to and 
 
 i-t of these courts created. For, of course, the people gen- 
 erally cannot be expected to appreciate the constitutional questions 
 invohvd. All that they can see and appreciate is that their legis- 
 lative representatives have enacted a measure in their interests, 
 which the courts have declined to recognize as valid. 
 
 11. The Force of Contemporaneous or Long Continued Legis- 
 lative Interpretation. 
 
 The presumption of constitutionality which attaches to an act 
 of Congress is increased when the legislative interpretation has 
 been frequently applied during a considerable number of years, 
 or when it dates from a period practically contemporaneous with 
 the adoption of the Constitution, or when, based upon a confidence 
 in its correctness, many and important public and private rights 
 have been fixed. 
 
 In United States v. State Bank 21 the court, sj.raking through 
 Justice Story, say: '' Tt i- not unimportant to state that the 
 construction which we have given to the terms of the act is that 
 
 216 Pot. 20: 8 L. ed. 308.
 
 26 UNITED STATES CONSTITUTIONAL LAW. 
 
 which is understood to have been practically acted upon by the 
 government, as well as by individuals, ever since its enactment. 
 j\Iany estates, as well of deceased persons, as of persons insolvent 
 who have made general assignments, have been settled upon the 
 footing of its correctness. A practice so long and so general 
 would, of itself, furnish strong grounds for a liberal con- 
 sideration, and could not Jiow be disturbed without introducing 
 a train of serious mischiefs. We think the practice was founded 
 in the true exposition of the terms and intent of the act, but if it 
 were susceptible of some doubt, so long an acquiescence in it would 
 justify us in yielding to it as a safe and reasonable explanation." 
 
 The foregoing had reference to the construction of a statute, but 
 the same reasoning is applicable to the Constitution. 
 
 In Lithographic Company v. Sarony 22 the court declare : " The 
 construction placed upon the Constitution by the first act of 1790 
 and the act of 1802 by the men who were contemporary with its 
 formation, many of whom were members of the 'Convention who 
 framed it, is of itself entitled to very great weight, and when it is 
 remembered that the rights thus established have not been disputed 
 during a period of nearly a century, it is almost conclusive. 23 
 
 12. Legislative and Executive Practice Not Absolutely Bind- 
 ing. 
 
 The Supreme Court has, however, never held itself absolutely 
 bound by a legislative or executive construction (political ques- 
 tions excepted) however long acquiesced in, or however nearly 
 contemporaneous its first statement with the adoption of the Con- 
 stitution. 24 
 
 22111 U. S. 53; 4 Sup, Ct. Rep. 279; 28 L. ed. 349. 
 
 23 See also Stuart v. Laird, 1 Cr. 299; 2 L. ed. 115. 
 
 24 In Swift v. United States (105 U. S. 691; 26 L. ed. 1108) the court say: 
 "The rule which gives determining weight to contemporaneous construction 
 put upon a statute by those charged with its execution applies only in 
 cases of ambiguity and doubt." 
 
 "Contemporary construction," says Story, in his Commentaries ( 407), 
 "is properly resorted to, to illustrate, and confirm the text, to explain a 
 doubtful phrase, or to expound an obscure clause; and in proportion to the 
 uniformity and universal, ty of that construction, and the known ability and
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 27 
 
 13. Extrinsic Evidence. 
 
 Generally speaking, in the construction of the Constitution, the 
 well known distinctions between latent and patent ambiguities, 
 and between the use of extrinsic and intrinsic evidence apply. 
 Where the language of the instrument is itself indefinite or is such 
 that more than one meaning may, by grammatical construction, be 
 drawn from its terms, the courts base their determinations upon 
 the language and provisions found within the four corners of the 
 instrument, and without resort to extrinsic evidence. The govern- 
 ing point is as to what is actually written. If a given power may 
 rationally, logically, and grammatically be construed as granted 
 by a given provision, then it is of no countervailing force to adduce 
 the fact that such was not the intention of those by whom the 
 instrument of government was established. Thus, six years after 
 the adoption of our Constitution, the judicial power of the federal 
 courts was construed to extend to a case in which a State was 
 defendant in a suit brought by a private individual, and support 
 for such construction was undoubtedly supplied by the written 
 word. That such, however, was not the intention of those by 
 whom the Constitution was framed and ratified is quite certain, 
 as was demonstrated by the promptness and unanimity with which 
 the Eleventh Amendment was adopted, preventing a future 
 similar construction. 
 
 talents of those, by whom it was given, is the credit to which it is entitled. 
 It can never abrogate the text; it can never fritter away the obvious sense; 
 it can never narrow down its true limitations, it can never enlarge its natural 
 boundaries." 
 
 In United States v. Alger (152 U. S. 384; 14 Sup. Ct. Rep. 635; 38 L. ed. 
 488) the court say: "As the meaning of the statute as applied to these- 
 cases, appears to this court to be perfectly clear, no practice inconsistent 
 witli that nu-aning can have any effect." 
 
 In Fairbanks v. United States (181 U. S. 283; 21 Sup. Ct. Rep. 648; 
 45 L. ed. 862) the constructive force, to be given to legislative and executive 
 practice is reviewed at length. With reference to the principle that the 
 judiciary cannot be conclusively bound thereby the court say: "From this 
 resume of our decisions it clearly appears that practical construction is 
 relied upon only in cases of doubt."
 
 28 UXITED STATES CONSTITUTIONAL LAW. 
 
 14. Technical Terms. 
 
 When, however, there is no ambiguity of grammatical construc- 
 tion, but the words themselves require definition, recourse is prop- 
 erly had to extrinsic evidence. Here it is necessary to learn from 
 extrinsic sources the meaning usually attached to these words at 
 the time the Constitution was framed and, presumably, by those 
 who framed and adopted the Constitution. Examples of such 
 technical terms are " letters of marque and reprisal," " ex post 
 facto," " bill of attainder," " bankruptcy," u admiralty," " equity," 
 " direct tax," " duties," " imposts," " excises," " piracy," " habeas 
 corpus," " citizen," " alliance," " confederation," " republican 
 form of government," " infamous crime," " commerce," etc. The 
 technical term " treason " is defined in the Constitution itself. 
 
 One of the principal questions involved in the Dred Scott case 
 was as to the definition of the term " citizens of different States " 
 as employed in Article III of the Constitution. The Insular Cases 
 in considerable measure turned upon the meaning to be ascribed 
 to the expression " United States." In Texas v. White it was 
 necessary to enter into a careful definition of the terms " state " 
 and " government " in order clearly to distinguish them. 
 
 As has been repeatedly declared by the courts the best rule for 
 interpreting the technical terms employed in the Constitution is 
 to give to them the meaning which they had at the time that in- 
 strument was framed and adopted. When the terms are technical 
 law terms they are to be given the meaning attached to them in 
 the English common law. 25 
 
 25 The Supreme Court in South Carolina v. United States (199 TJ. S. 437; 
 20 Sup. Ct. Rep. 110; 50 L. ed. 261) states this doctrine as follows: "It 
 must also be remembered that the framers of the Constitution were not mere 
 visionaries, toying with speculations or theories, but practical men dealing 
 with the facts of political life as they understood them; putting into form 
 th^ government they were creating and prescribing, in language clear and 
 intelligible, the powers that government was to take. Mr. Chief Justice 
 Marshal], in Gibbons v. Ogden (9 Wheat. 1, 188; 6 L. ed. 23) well declared: 
 ' 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 Avho framed our Constitution, and the people who adopted 
 it, must be understood to have employed words in their natural sense, and to
 
 PRINCIPLES OF COX*TITL'TIUXAL CONSTRUCTION. 29 
 
 In a few instances it is, however, to be observed, that the 
 Supreme Court has refused to give to technical terms the mean- 
 ings attached to them in 178'J by the common law. This has been 
 so especially with reference to the words " admiralty " and 
 " bankruptcy " both of which terms have been given a broader 
 meaning than that furnished by the English common law. Com- 
 menting upon this Pomeroy properly says : " The true rule would 
 seem to be this: Where words having a well known, technical 
 sense by the English law are used in the Constitution, and these 
 words are keys to the clauses which protect the private rights and 
 liberties of the people, and especially of clauses which impose di- 
 rect restraints upon the government in respect of such rights and 
 liberties, and the technical sense itself is necessary for the com- 
 plete protection of the individual citizen, this signification must 
 still be retained in any interpretation of these provisions. But 
 on the other hand, where words which had a technical meaning by 
 the English law, are used in clauses which relate to the general 
 functions of legislation and administration, and to the .political 
 organization and powers of the government, such sense must be 
 
 have intended what they have said.' One other fact must be borne in mind, 
 and that is, in interpreting the Constitution we must have recourse to the 
 common law. As said by Mr. Justice Matthews in Smith v. Alabama (124 
 U. S. 46o; 8 Sup. Ct. Rep. 564; 31 L. ed. 508): 'The interpretation of the 
 Constitution of the United States is necessarily influenced by the fact that 
 its provisions are framed in the language of the English common law, 
 and are to be read in the light of its history/ And by Mr. Justice Gray in 
 UnitoJ States v. Wong Kim Ark (160 U. S. 649; 18 Sup. Ct. Rep. 456; 
 42 L. ed. 890): 'In this, as in other respects, it must be interpreted in 
 the light of the common law, the principles and history of which were 
 familiarly known to the framers of the Constitution. Minor v. Happersett 
 (21 Wall. 102; 22 L. ed. 627 1 ; Ex parte Wilson (114 U. S. 417; 5 Sup. 
 Ct. Rep. n3o; 29 L. ed. 89) ; Boyd v. United States (116 U. S. 616; 6 Sup. 
 Ct. Rep. 524: 20 L. ed. 746) ; Smith v. Alabama (124 U. S. 465; 8 Sup. Ct. 
 Rep. 564: 31 L. ed. 508). The language of the Constitution, as has been 
 well said, could not lie understood without reference to the common law. 
 1 Kent, Com. 336; Bradley. J., in Moore v. United States (91 U. S. 270; 23 
 L. ed. 346).' To determine the extent of the grants of power, we must, 
 therefore, place ourselves in the position of the men who framed and adopted 
 the Constitution, and inquiro what they must have understood to be the 
 meaning and scope of those grants."
 
 30 UNITED STATES CONSTITUTIONAL LAW. 
 
 attributed to them as will best carry out the design of the whole 
 organic law, whether that signification be broader or narrower 
 than the one which had received the sanction of the English Par- 
 liament and courts." 26 
 
 15. The Interpretative Value of Debates in Constitutional 
 Conventions. 
 
 When it is necessary and proper to resort to extrinsic evidence 
 in interpreting the Constitution, an important source of such evi- 
 dence is to be found in the history of the events which led up to 
 its adoption. Of special importance are the recorded proceedings 
 of the convention which drafted, of the state conventions which 
 ratified, and the public utterances of the men who played an 
 influential part in the establishment of, the Constitution. Resort 
 is to be had, however, to these sources only with caution, and only 
 where latent ambiguities are to be resolved. Cooley has stated in 
 a manner not to be improved upon the weight properly to be 
 ascribed to debates in conventions. He says : " When the inquiry 
 is directed to ascertaining the mischief designed to be remedied, or 
 the purpose sought to be accomplished by a particular provision, it 
 may be proper to examine the proceedings of the convention which 
 framed the instrument. Where the proceedings clearly point 
 out the purpose of the provision, the aid will be valuable and satis- 
 factory ; but where the question is one of abstract meaning, it will 
 be difficult to derive from this source much reliable assistance in 
 interpretation. Every member of such a convention acts upon such 
 motives and reasons as influence him personally, and the motions 
 and debates do not necessarily indicate the purpose of a majority 
 of a convention in adopting a particular clause. It is quite possi- 
 ble for a clause to appear so clear and unambiguous to the mem- 
 bers of a convention as to require neither discussion nor illustra- 
 tion; and the few remarks made concerning it in the convention 
 might have a plain tendency to lead directly away from the mean- 
 ing in the minds of the majority. It is equally possible for a part 
 
 26 Constitutional Law, 10th ed., p. 607. See also idem, p. 345.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 31 
 
 
 
 of the members to accept a clause in one sense and a part in 
 another. And even if we were certain we had attained to the mean- 
 ing of the convention, it is bj no means to be allowed a controlling 
 force, especially if that meaning appears not to be the one which 
 the words would most naturally and obviously convey. For as the 
 Constitution does not derive its force from the convention which 
 framed, but from the people who ratified it, the intent to be ar- 
 rived at is that of the people, and it is not to be supposed that they 
 have looked for any dark or abstruse meaning in the words em- 
 ployed, but rather that they have accepted them in the sense most 
 obvious to the common understanding, and ratified the instru- 
 ment in the belief that that was the sense designed to be eonveyect 
 These proceedings, therefore, are less conclusive of the proper con- 
 struction of the instrument than are legislative proceedings of 
 the proper construction of a statute ; since in the latter case it is 
 the intent of the legislature we seek, while in the former we are 
 endeavoring to arrive at the intent of the people through the dis- 
 cussions and deliberations of their representatives. The history of 
 the calling of the convention, of the causes which led to it, and the 
 discussions and issues before the people at the time of the election 
 of the delegates, will sometimes be quite as instructive and satis- 
 factory as anything to be gathered from the proceedings of the 
 convention. 7 '' K 
 
 16. The Federalist. 
 
 What has been said regarding the interpretative value of the 
 debates in the conventions that framed and ratified the Constitu- 
 tion, and the value of contemporary interpretation thereof by 
 Congress and the Executive, applies to the collection of essays 
 published under the title of The Federalist. This is true pecu- 
 liarly of those essays not only because of their respective authors 
 - Hamilton, Madison and Jay but because of the purpose for 
 which they were prepared and published, namely, to persuade the 
 several state conventions to ratify the Constitution. Having this 
 construction of the Constitution before them, there are consider- 
 
 Constitutional Limitations, 7th ed., p. 101.
 
 32 UNITED STATES CONSTITUTIONAL LAW. 
 
 
 
 able, though not conclusive, grounds for holding that, where the 
 meaning thus published was not repudiated, this was the construc- 
 tion intended by those who put the Constitution into forced 
 
 The case of Chisholm v. Georgia 23 is, however, a conspicuous 
 instance in which a view advanced in The Federalist (that a State 
 would not be suable in the federal courts at the instance of a citi- 
 zen of another State) was repudiated by the Supreme Court. 
 
 17. History of the Times. 
 
 The case of Prigg v. Pennsylvania 30 illustrates the value of a 
 resort to the " history of the times " and to the general object 
 sought to be obtained, in interpreting an ambiguous constitutional 
 provision. In this case, which involved the question as to the ex- 
 clusiveness of the power granted to the Federal Government under 
 the fugitive slave clause of the Constitution, 33 Justice Story said : 
 " Historically it is well known that the object of this clause was 
 to secure to the citizens of the slaveholding States the complete 
 right and title of ownership in their slaves, as property, 
 in every State in the Union into which they might escape from 
 the State where they were held in servitude. . . . How then 
 are we to interpret the language of the clause ? The true 
 answer is, in such a manner, as, consistently with the words, 
 shall fully and completely effectuate the whole object of it. If 
 by one mode of interpretation the right must become shadowy 
 
 28 In Cohens v. Virginia (6 Wh. 264; 5 L. ed. 527) Marshall says: "The 
 opinion of The Federalist has always been considered as of great authority. 
 It is a complete commentary on our Constitution; and is appealed to by all 
 parties in the questions to which that instrument has given birth. Its in- 
 trinsic merit entitles it to this high rank; and the part two of its authors 
 performed in framing the Constitution, puts it very much in their power 
 to explain the views with which it was framed. These essays having been 
 published while the Constitution was before the nation for adoption or 
 rejection, and having been written in answer to objections founded entirely 
 on the extent of its powers, and on its diminution of state sovereignty, are 
 entitled to the more consideration where they frankly avow that the power 
 objected to is given, and defend it." 
 
 292 Ball. 419; 1 L. ed. 440. 
 
 3016 Pet. 539; 10 L. ed. 1060. 
 
 si Art. IV, Sec. II, Cl. 3.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 33 
 
 and unsubstantial, and without any remedial powers adequate to 
 the end, and by another mode it will attain its just end and secure 
 its manifest purpose, it would seem upon principles of reasoning 
 absolutely irresistible that the latter ought to obtain. Ko court of 
 justice can be authorized so to construe any clause of the Consti- 
 tution as to defeat its obvious ends, when another construction 
 equally accordant with the words and sense thereof will enforce 
 and protect them." 
 
 Here it is to be observed that Story properly introduces the 
 qualifying condition that the construction supported by the history 
 of the times in which, and the purpose for which, it was formed, 
 must, as compared w r ith another possible construction, be " equally 
 accordant with the words and sense thereof." It is thus to be 
 emphasized that extrinsic evidence may never be used to support 
 an interpretation which the written word does not upon its face 
 reasonably permit. In other words, extrinsic evidence may prop- 
 erly be used to decide between two possible constructions of the 
 written word, but not to add to or subtract from its express pro- 
 
 . o*> 
 
 visions. 
 
 IS. The Interpretative Value of Legislative Debates. 
 
 As in the c^ise of the examination of the Constitution itself, the 
 courts in considering the constitutionality of a statute hold them- 
 selves bound by the words of the statute, that is, they determine 
 the intent of the legislature by the words it has employed. And, 
 therefore, they will not resort to legislative debates except where 
 necessary to resolve a latent ambiguity. 
 
 In Maxwell v. Dow 33 the court say : " Counsel for plaintiff in 
 error has cited from the speech of one of the Senators of the United 
 States, made in the Senate when the proposed Fourteenth Amend- 
 ment was under consideration by that body. . . . What speeches 
 were made by other Senators and by Representatives in the House 
 
 32 Query, as to whctlu-r tlio resort to "history of the times" was legitimate 
 in the Slaughter House Cases for the interpretation, of the clause of the 
 Fourteenth Amendment that " no state shall make or enforce any law which 
 shall abridge the privileges or immunities of citizens of the United States." 
 
 33176 U. S. 581; 20 Sup. Ct. Rep. 448; 44 L. ed. 597. 
 
 3
 
 34 UNITED STATES CONSTITUTIONAL LAW. 
 
 upon this subject is not stated by counsel, nor does he state what 
 construction was given to it, if any, by other members of Con- 
 gress. It is clear that what is said in Congress upon such an 
 occasion may or not express the views of the majority of those 
 who favor the adoption of the measure which may be before that 
 body and the question whether the proposed amendment itself 
 expresses the meaning which those who spoke in its favor may 
 have assumed that it did, is one to be determined by the language 
 actually therein used, and not by the speeches made regarding it. 
 What individual Senators or Representatives may have urged in 
 debate, in regard to the meaning to be given to a proposed con- 
 stitutional amendment, or bill, or resolution, does not furnish a, 
 firm ground for its proper construction, nor is it important as 
 explanatory of the grounds upon which the members voted in 
 adopting it. 34 In the cases of a constitutional amendment it is 
 of less materiality than in that of an ordinary bill or resolution. 
 A constitutional amendment must be agreed to, not only by Sena- 
 tors and Representatives, but it must be ratified by the legis- 
 latures, or by conventions, in three-fourths of the States before 
 such an amendment can take effect. The safe way is to read its 
 language in connection with the known condition of affairs out of 
 which the occasion for its adoption may have ariseh, and then to 
 construe it, if there be therein any doubtful expressions, in a way 
 so far as is reasonably possible, to forward the known purpose 
 or object for which the Amendment was adopted. This rule could 
 not, of course, be so used as to limit the force and effect of an 
 amendment in a manner which the plain and unambiguous lan- 
 guage used therein would not justify or permit." 35 
 
 34 Citing United States v. Trans-Missouri Freight (Association (1C6 U. S. 
 290; 17 Sup. Ct. Rep. 540; 41 L. ed. 1007) ; Dunlap v. United States 
 (173 U. S. 65; 19 Sup. Ct. Rep. 319; 43 L. ed. 616). 
 
 35 In United States v. Trans-Missouri Freight Association (166 U. S. 290; 
 17 Sup. Ct. Rep. 540; 41 L. ed. 1007) both the majority and minority opinions 
 detail at some length the congressional history of the so-called Anti-Trust 
 Act of 1590, but both admit that this is not a legitimate source of information. 
 The majority justices after their review of the course of the bill through Con- 
 gress and the debates attendant thereupon, argue that it is impossible in fact 
 to say what were the views of the majority of the members of each House of
 
 PEINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 35 
 
 In 1833, Mr. Calhoun when voting in the Senate upon the 
 tariff act of that year said that he wished it distinctly under- 
 stood that he did so upon the condition that a certain construction 
 and application should be given to the measure. Other Senators, 
 however, promptly and properly pointed out that such a qualifi- 
 cation would be void of any force, as the act would, after enact- 
 ment, necessarily be given such a meaning as its words and the 
 Constitution would permit. 36 
 
 19. Resort to the Preamble for Purpose of Construction. 
 
 The value of the Preamble to the Constitution for purposes of 
 construction is similar to that given to the preamble of an ordi- 
 nary statute. It may not be relied upon for giving to the body 
 of the instrument a meaning other than that which its language 
 plainly imports, but may be resorted to in cases of ambiguity, 
 where the intention of the framers does not clearly and definitely 
 
 Congress in relation to the meaning of the act, and add: " There is, too, a 
 general acquiescence in the doctrine that debates in Congress are not appro- 
 priate sources of information from which to discover the meaning of the 
 language of a statute passed by that body (United States v. U. P. Railroad 
 !>1 U. S. 72; 23 L. ed. 324; Aldridge v. Williams, 3 How. 9; 11 L. ed. 
 469; Taney, Chief Justice; Mitchell v. Great Works Milling and Manufactur- 
 ing Co., 2 Story, 648; Queen v. Hertford College, 3 Q. B. D. 693). The reason 
 is that it is impossible to determine with certainty what construction was put 
 upon an act by the members of a legislative body that passed it by resorting 
 to the speeches of individual members thereof. Those who did not speak may 
 not have agreed with those who did; and those who spoke might differ from 
 each other; the result being that the only proper way to construe a legislative 
 act is from the language used in the act, and, upon occasion, by a resort to 
 the history of the times when it was passed." The opinion then goes on to 
 that from " the history cf the times " it would appear that the act in 
 qin>.-tion was intended to have the meaning which the court attaches to it. 
 
 Justice Brown in Dowm-s v. Bidwell (182 U. S. 244; 21 Sup. Ct. Rep. 770; 
 4.") L. ed. 1088) says: ''The arguments of individual legislators are no proper 
 subject for judicial comment. They are so often influenced by personal or 
 political considerations, or by the assumed necessities of the situation, that 
 tliny can hardly be considered even as the deliberate views of the persons who 
 make them, much loss as declaring the construction to be put upon the Con- . 
 stitution by the Courts." (Citing United States v. Union P. R. Co., 91 U. S. 
 72: 23 L. ed. 324.) 
 
 ii, Thirty Years' Vicic, I, 329.
 
 36 UXITED STATES CONSTITUTIONAL LAW. 
 
 appear. As Story says : " The preamble of a statute is a key to 
 open the inind of the makers as to the mischiefs which are to be 
 remedied, and the objects which are to be accomplished by the 
 provisions of the, statute." 37 
 
 Special significance has at various times been attached to 
 several of the expressions employed in the Preamble to the Con- 
 stitution. These expressions are: 
 
 1. The use of the phrase " We, the People of the United 
 States," as indicating the legislative source of the Constitution. 
 
 2. The denomination of the instrument as a " Constitution." 
 
 3. The description of the federation entered into as " a more 
 perfect Union." 
 
 4. The enumeration of " the common defense " and " general 
 welfare" among the objects which the new government is estab- 
 lished to promote. 
 
 20. " We, the People." 
 
 As regards the phrase " We, the People," it would seem that 
 little light can be obtained from its use, except to fix the fact, 
 which no one has attempted to deny, that the new government 
 derived its right to be from the consent of the people who were 
 to be controlled by it. But whether by " We, the People " was 
 meant all the people of the ratifying States considered as one 
 body politic, or whether it referred to the people as organized in 
 several commonwealth communities, it is, so far as this language 
 is concerned, impossible to say. 
 
 The framers of the Constitution of the Southern Confederacy 
 avoided this ambiguity by declaring in the Preamble: "We, the 
 People of the Confederate States, each State acting in its sover- 
 eign and independent character, in order to form a permanent 
 federal government, establish justice ... do ordain 
 and establish this Constitution for the Confederate States of 
 America." 
 
 Commenting upon this change in phraseology, Pomeroy says: 
 " Thus have the opponents of our nationality by their most 
 
 37 Commentaries, 459.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTKI/CTIOX. 3? 
 
 solemn and deliberate act conceded the correctness of the con- 
 struction which has been placed [by the Northern States] upon 
 this utterance of the sovereign people of the United States.'' : 
 This is by no means a correct deduction. It was quite proper 
 that the i'ramers of the Confederate Constitution should, without 
 conceding the correctness of the construction of their opponents, 
 from an abundance of caution, use language which no one could 
 misconstrue. 
 
 In Martin v. Hunter's Lessee 39 Justice Story says : " The 
 Constitution of the United States was ordained and established 
 not by the States in their sovereign capacities, but emphatically, 
 as rho preamble of the Constitution declares, by the people of the 
 United States. So far from saying that it is established by the 
 governments of the several States, it does not even say that it is 
 established by the people of the several States, but it pronounces 
 that it is established by the people of the United States in the 
 aggregate. . . . "Words cannot be plainer than the words 
 used." 
 
 This last statement is certainly extreme. It is indeed made 
 plain that the Constitution is not ratified by the Governments of 
 the individual States, but it is not clearly indicated whether the 
 ratifying parties are to be considered singly or as a composite 
 whole. And in contradiction to the fact that a single political 
 whole was meant is the fact that in ratifying the Constitution the 
 people did vote by States.'** 
 
 The only way by which the force of this fact is avoided is by 
 the proposition that the ratifying state conventions acted ad hoc 
 as agents of a single united people. But this argument is greatly 
 weakened, if n.,r ab.-olutcly destroyed, by the fact that only those 
 States were to be considered members of the new Union whose 
 respective people, acting in convention, should ratify the Con- 
 stitution. 
 
 & Constitutional Laic, 95. 
 
 39 1 \Vh. 3<4 : 4 L. ed. 97. 
 
 *>The fact that t!; :re not, as in the Articles of Confederation, men- 
 
 tioned, individually. l>y nanio. is of no significance for the reason that they 
 could not be so mentioned because it could not be known in advance which of 
 the States would ratify. 
 
 62204
 
 38 UNITED STATES CONSTITUTIONAL LAW. 
 
 The use of the phrase " We, the People of the United States " 
 as indicating the ordainers and establishes of the Union, is, how- 
 ever, of significance in determining the nature of the Union that 
 was intended to be created when taken in connection with the 
 provision of Article VII that the Constitution is to be ratified, 
 not by the state legislatures, but in conventions, for it indicates 
 that the Union was one that the state legislatures were not com- 
 petent to create ; that, in other words, .it was to be not a mere 
 league or confederacy, such as the existing state governments 
 might enter into, but a fundamental Union resulting in the crea- 
 tion of a new Xational State which, according to the political 
 philosophy of that date, only the people acting in their original 
 sovereign capacity were able to create. 
 
 21. " Constitution." 
 
 The fact that the instrument of 1789 is termed a " Constitu- 
 tion " has by some been taken to indicate that a National State, 
 and not a confederacy of States was intended to be created. Thus 
 Webster in his reply to Hayne said: " They [the people of the 
 United States] undertook to form a general government which 
 should stand on a new basis ; not a confederacy, not a league, not 
 a compact between States, but a Constitution." And in his reply 
 to Calhoun, he declared : " Sir, I must say to the honorable 
 gentleman that, in our American political grammar, Constitution 
 is a noun substantive; it imparts a distinct and clear idea of 
 itself; and it is not to be turned into a poor, ambiguous, sense- 
 less, unmeaning adjective, for the purpose of accommodating any 
 new set of political notions. . . . By the Constitution we 
 mean, not a l constitutional compact,' but simply and directly the 
 Constitution, the fundamental law; and if there be one word in 
 the language which the people of the United States understand, 
 it is that word." And later he says : " Does it call itself a com- 
 pact ? Certainly not. Does it call itself a league, a confederacy, 
 or subsisting treaty between the States'? Certainly not. But it 
 declares itself a Constitution."
 
 PKIXCIPLES OF CONSTITUTIONAL CONSTRUCTION. 39 
 
 By members of the school of Webster weight is also given to 
 the fact that it is declared that the people of the United States 
 " do ordain and establish " and not that they " do contract " or 
 " enter into a treaty." 
 
 The writer of this treatise is not disposed to ascribe much value 
 to this argument of Webster based upon the use of the word 
 " Constitution." At most it can only have a corroborating value. 
 In the first place, it is by no means certain that the term had, 
 in 1780, the definite technical meaning which Webster ascribes 
 to it. And, in the second place, and more significantly, the nature 
 of the Union provided for by the Constitution is properly to be 
 determined by the distribution of powers actually provided for 
 by it, and not by the title that may have been given to it. 
 
 The description of the new federation in the Preamble as " a 
 more perfect Union," has occasionally been referred 'to as an ar- 
 gument of the complete sovereignty of the United States. For 
 example, in Texas v. White, 41 Chief Justice Chase, after refer- 
 ring to the fact that the Articles of Confederation had provided 
 for a perpetual Union, says : "And when these articles were found 
 to be inadequate to the exigencies of the country, the Constitu- 
 tion 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 more indissoluble if a perpetual Union, made 
 more perfect, is not ? " 
 
 22. " Common Defense and General Welfare." 
 
 The declaration in the Preamble that the new Union is estab- 
 lished for the common defense and general welfare, and the grant 
 by Article I, Section 8, of the Constitution to Congress of the 
 power '" to levy and collect taxes, duties, imports, and excises, to 
 pay the debts and provide for the common Defense and general 
 welfare of the United States," has at times been argued to be 
 equivalent to a grant to the General Government of all powers, 
 the exercise of which may in any way contribute to the effectua- 
 tion of either of these ends. 
 
 7 Wall. 700; 19 L. ed. 227.
 
 40 UNITED STATES CONSTITUTIONAL LAW. 
 
 Especially by those who desire to magnify the powers of the 
 Federal Government it has been argued that instead of construing 
 Section 8 of Article I as simply the grant of an authority to raise 
 revenue in order to pay the debts and provide for the common 
 defense and general welfare of the United States, it should be 
 interpreted as conferring upon Congress two distinct powers; 
 namely : ( 1 ) the power of taxation ; and ( 2 ) the power to provide 
 for the common defense and general welfare. And, under the 
 latter of these two grants, it has been argued that the Congress 
 has the authority to exercise any power that it may think neces- 
 sary or expedient for advancing the common defense or the gen- 
 eral welfare of the United States. It scarcely needs be said that 
 this interpretation has not been accepted by the courts. Were 
 this view to be accepted the government of the United States 
 would at once cease to be one of the enumerated powers, for it 
 would then be .possible to justify the exercise of any authority 
 whatsoever upon the ground that the general welfare would 
 thereby be advanced. 
 
 23. The Constitution is to be Construed as a Whole. 
 
 Though the terms of the Constitution may not be varied, or 
 its grants of authority limited by abstract doctrines of private 
 rights and of political justice and expediency, the words of each 
 clause are to be interpreted in the light of the other provisions 
 of the Constitution. The Constitution is a logical whole, each 
 provision of which is an integral part thereof, and it is, therefore, 
 logically proper, and indeed imperative, to construe one part in 
 the light of the provisions of all the other parts. 42 
 
 This .principle has been of dominant force in the construction 
 of the Constitution. 
 
 The principle that the Constitution is to be interpreted in the 
 light of the general purpose for the attainment of which it was 
 
 42 " In construing the Constitution of tlie United States we are, in the first 
 instance, to consider what are its nature and objects, its scope and design, as 
 apparent from the structure of the instrument, viewed as a whole, and also 
 viewed in its component parts." Story, Commentaries, 405.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 41 
 
 adopted" coupled with the fact that many of its terms are general 
 iii character, has made possible and legitimate two schools of 
 constructionists the Loose or Nationalistic school, and the 
 Strict or States' Rights school each dependent upon a belief 
 held as to the general end which the framers of the Constitution 
 had in mind when that instrument was drafted. The Strict or 
 States' Rights constructionist has not always been one who would 
 deny sovereignty or efficiency to the National Government. Thus, 
 Taney, a leader of the strict coiistructionists, never for a moment 
 doubted the sovereignty of the General Government, or, as he 
 showed in his decision in Ableman v. Booth, the supremacy of its 
 laws and of its agents over the laws and agents of the States. He 
 did believe, however, that the sovereign national laws should be 
 kept within as limited a space as possible. This he showed from 
 the first year of his chief -justiceship. 
 
 From the general nature and intent of the Constitution have 
 been deduced, not to mention other doctrines, the denial of the 
 right of secession, the power of the courts to hold void state or 
 federal laws contrary to the. Constitution, the jurisdiction of the 
 federal courts to entertain appeals from the highest state courts 
 in cases in which a federal right, privilege, or immunity has been 
 set up and denied, the immunity of federal governmental agencies 
 from interference on the part of the States by taxation or other- 
 wise, the immunity of state agencies from federal taxation, the 
 exclusive federal jurisdiction in matters of naturalization, and 
 the liberal construction of " implied " powers generally. 
 
 24. So-called " Natural " or " Unwritten Constitutional " Laws 
 
 Have no Constructive Force. 
 
 The so-called " natural " or unwritten laws defining the 
 natural, inalienable, inherent rights of the citizen, which, it is 
 sometimes claimed, spring from the very nature of free govern- 
 ment, have no force either to restrict or to extend the written 
 provisions of the Constitution. The utmost that can be said for 
 1 them is that where the language of the Constitution admits of 
 doubt, it is to be presumed that authority is not given for the 
 violation of acknowledged principles of justice and liberty.
 
 42 UNITED STATES CONSTITUTIONAL LAW. 
 
 In not a few instances, especially during early years, the bind- 
 ing force of natural laws is declared, but a careful examination 
 of these cases shows that, practically without exception, the doc- 
 trine was used not as the real ratio decidendi, but to support, 
 upon grounds of justice and expediency, a decision founded upon 
 the written constitutional law. 
 
 Prior to the separation from England, the colonial courts were 
 naturally inclined to minimize the power of the English Parlia- 
 ment, and, therefore, to uphold Coke's dictum in the famous 
 Bonham case that an act of Parliament contrary to natural rights 
 and justice is void. And in the political controversies which pre- 
 ceded the Revolution the doctrine of natural rights was relied 
 upon. 43 It would appear, however, that, though often asserted 
 by the courts, no legislative act was held void solely because it was 
 conceived to exceed the proper limits of all legislative power. 44 
 
 When American independence came, it was to be expected that 
 the Americans would apply the doctrine of natural rights and 
 justice in limitation of the law-making powers of their own legis- 
 latures, and thus, as said, we do find the principle not infre- 
 quently stated, during the early years of the Constitution. 45 Even 
 Chief Justice Marshall lent it, upon occasion, a qualified sanc- 
 tion. " It may well be doubted," he observes in Fletcher v. 
 Peck 46 whether the nature of society and of government does 
 not prescribe some limits to the legislative power; and if any be 
 prescribed, where they are to be found, if the property of an 
 individual, fairly and honestly acquired, may be seized without 
 compensation ? To the [state] legislature all legislative power 
 is granted; but the question 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." 47 
 
 <s For instance by Otis in his arguments against writs of assistance. 
 
 44 As to whether the South Carolina case of Bowman v. Middleton, 1 Bay, 
 252, was such a case, see Thayer, Coses on Const. Law, I, 53, note 2. 
 
 45 C/. Stimson, Handbook of American Labor Law, p. 4, note. 
 4 6 Cr. 87; 3 L. ed. 162. 
 
 47 One of the clearest statements of the doctrine, though given obiter, is 
 that of Justice Chase in Calder v. Bull (3 Dall. 386; 1 L. ed. 648). He says: 
 " I cannot subscribe to the omnipotence of a state legislature, or that it should
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 43 
 
 25. The " Spirit " of the Constitution. 
 
 Closely allied to the assertion that the Constitution is to be 
 interpreted in the light of *' natural law," is the doctrine that the 
 fundamental purpose of the constitutional fathers was the erec- 
 tion of a free republican government, and that, therefore, the 
 
 b absolute and without control ; although the authority should not be 
 expressly restrained by the constitution, or fundamental law of the State. The 
 people of the United States erected their Constitution or form of government, 
 to establish justice, to promote the general welfare, and secure the blessings 
 of liberty; and to protect their persons and property from violence. The 
 purposes for which men enter into society will determine the nature and terms 
 of the social compact; and as they are the foundations of the legislative power 
 they will decide what are the proper objects of it. The nature and ends of the 
 legislative power will limit the exercise of it. This fundamental principle 
 follows from the very nature of our 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 legis- 
 latures cannot do without exceeding their authority. There are certain vital 
 principles in our free republican governments which will determine and over- 
 rule an apparent and flagrant abuse of legislative power; as to authorize 
 manifest injustice by positive law; or to take away that security for personal 
 liberty or private property, for the protection whereof the government was 
 established. An act of the legislature (for I cannot call it a law) contrary 
 to the great first principle of the social compact, cannot be considered a right- 
 ful exercise of the legislative authority. The obligation of a law in govern- 
 ments established 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; a law that takes property from A and gives it to B: It is against all 
 reason and justice for a people to entrust 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 principles of law and reason forbid 
 them. The legislature may enjoin, permit, forbid and punish; they may 
 declare ne\v crinu>; 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 contract ; 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 govern- 
 ments."
 
 44 UNITED STATES CONSTITUTIONAL. LAW. 
 
 / 
 
 Constitution should, whatever its express terms may provide, 
 
 never be so construed as to violate the abstract principles deducible 
 from this fundamental fact. Generally speaking, whereas the 
 so-called natural laws have reference to the private rights of the 
 citizen, the protection of his person and property; these prin- 
 ciples claimed to be deducible from the spirit of the Constitution 
 as the framework of a free government have reference to the 
 public and political rights of the individual. 
 
 Stated in this abstract, philosophical form, the doctrine that 
 the " Spirit " of the Constitution is to prevail over its language 
 has no more legal validity than has the doctrine of natural law. 
 
 26. Applicability of Constitutional Provisions to Modern Con- 
 ditions. 
 
 In construing the Constitution the very proper and indeed ab- 
 solutely necessary principle has been followed that that instrument 
 was intended to endure for all time and that its grants of power 
 are, therefore, to be interpreted as applicable to new conditions 
 
 Justice Iredell though agreeing in the decision of the court dissented from 
 Chase's reasoning, saying: "If, then, a government composed of legislative, 
 executive and judicial departments were established by a Constitution which 
 imposed no limits on the legislative power, the consequence would imme- 
 diately be that whatever the legislative should choose to enact would be 
 lawfully enacted, and the judicial power could never interfere to pronounce it 
 void. It is true that some speculative jurists have held, that a legislative act 
 against natural justice must in itself be void ; but I cannot think that under 
 such a government, any court of justice would possess a power to pronounce it 
 so. ... If any act of Congress, or of the legislature of a State, violates 
 those constitutional provisions [of the United States Constitution], it is 
 unquestionably void; though, I admit, as the authority to declare it void is 
 of a delicate and awful nature, the court will never resort to that authority 
 but in a clear and urgent case. If, on the other hand, the legislature of the 
 Union, or the legislature of any member of the Union, shall pass a law within 
 the general scope of their constitutional power, the court cannot pronounce it 
 void, merely because it is, in their judgment, contrary to the principles of 
 natural justice. The ideas of natural justice are regulated by no fixed 
 standard; the ablest and purest men have differed upon the subject; and all 
 that the court could properly say in such an event, would be, that the l<*gis- 
 lature (possessed of an equal right of opinion) had passed an act which, in 
 the opinion of the judges, was inconsistent with the abstract principles of 
 natural justice."
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 45 
 
 as they arise. By this is not meant, however, that these new 
 conditions shall in any case justify the exercise of a power not 
 granted, or create a limitation not imposed by the Constitution, 
 but that the powers which are granted shall, if possible, be made 
 applicable to these new conditions. 
 
 Thus the grant to the Federal Government of the control over 
 interstate and foreign commerce is held to be one the extent of 
 which, though not its importance, is not varied by the fact that 
 the instrumentalities by which it is carried on are widely different 
 from those employed in 1789. On the other hand, if the writing 
 of insurance policies, or the dealing in banking instruments of 
 exchange were not, in 1789, considered interstate commercial 
 transactions, and by reason of their very nature could not prop- 
 erly have been, no augmentation in their amount and no increase 
 in the practical need for their federal regulation will justify a 
 construction that will attach an interstate commercial character 
 to them, and thus bring them within the power of the Federal 
 Government to control. 
 
 The principle, as it has been stated, does not prevent a con- 
 struction by which the powers and limitations enumerated in the 
 ( V>n>titution are made applicable to new conditions of fact which 
 were not and could not have been foreseen by those who adopted 
 the Constitution. In the Dartmouth case 48 Marshall says : " It 
 is more than possible that the preservation of the rights of this 
 description was not particularly in the minds of the framers 
 of the Constitution when the clause under consideration, impair- 
 ment of contracts, was introduced into that instrument, . . . 
 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 further and to say that had this 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 operations likewise, 
 nnles* there is something within it? literal construction so ob- 
 
 484 Wh. 518; 4 L. ed. 629.
 
 46 UNITED STATES CONSTITUTIONAL LAW. 
 
 viously absurd or mischievous, or repugnant to the general spirit 
 of the instrument, as to justify those who expounded the Con- 
 stitution in making it an exception." Again, in Re Debs 49 the 
 court say : " Constitutional provisions do not change, but their 
 operation extends to new matters as the modes of life and 
 habits of the people vary with each succeeding generation. 
 The law of the common carrier is the same to-day as when 
 transportation by 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. 
 Just so is it with the grant to the National Government of power 
 over interstate commerce. The Constitution has not changed. 
 The power is the same. But it operates to-day upon modes of 
 interstate commerce then unknown to the fathers, and it will 
 operate with equal force upon any new modes of such commerce 
 which the future may develop." ^ 
 
 156 U. S. 364; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092. 
 
 w To the same effect, as the foregoing, is the declaration of the court in 
 South Carolina v. United- States (199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 
 L. ed. 261), in which they say: "The Constitution is a written instrument. 
 As such its meaning does not alter. That which it meant when adopted, it 
 means now. Being a grant of powers to a government, its language is 
 general; and, as changes come in social and political life, it embraces within 
 its grasp all new conditions which are within the scope of the powers in terms 
 conferred. In other words, while the powers granted do not change, they apply 
 from generation to generation to all things to which they are in their nature 
 applicable. This in no manner abridges the fact of its changeless nature and 
 meaning. Those things which are within its grants of power, as those grants 
 were understood when made, are still within them; and those things not 
 within them remain still excluded. As said by Mr. Chief Justice Taney in 
 Scott v. Sandford ( 19 How. 393 ; 15 L. ed. 691 ) , 'It is not only the same in 
 words, but the same in meaning, and delegates the same power to the govern- 
 ment, and reserves and secures the same rights and privileges to the citizen ; 
 and in its present form it speaks not only in the same words, but with the 
 same meaning and intent with which it spoke when it came from the hands 
 of its framers and was voted on and adopted by the people of the United 
 States. Any other rule of construction would abrogate the judicial character 
 of this court, and make it the mere reflex of the popular opinion or passion of 
 the day.' " 
 
 Justice Story, in Martin v. Hunter's Lessee (1 Wh. 304; 4 L. ed. 97), dis- 
 cussing the principle of construction to be applied to the Constitution, 
 declares: "The instrument was not intended to provide merely for the
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 47 
 
 27. The Wilson-Roosevelt Doctrine of Construction. 
 
 A doctrine of construction radically different from that which 
 has just been stated, and which has never been accepted by the 
 Supreme Court, is that originally put forth by James Wilson of 
 Pennsylvania, and in recent years urged by President Roosevelt. 
 
 This doctrine is, that when a subject has been neither ex- 
 pressly excluded from the regulating power of the Federal Gov- 
 ernment, nor expressly placed within the exclusive control of the 
 States, it may be regulated by Congress if it be, or become, a 
 matter the regulation of which is of general importance to the 
 whole nation, and at the same time a matter over which the 
 States are, in practical fact, unable to exercise the necessary con- 
 trolling power. According, then, to this doctrine, the Xinth and 
 Tenth Amendments which declare that : " The enumeration, in 
 the Constitution of certain rights shall not be construed to deny 
 or disparage others retained by the people," and that " The 
 powers not delegated to the United States by the Constitution, nor 
 prohibited by it to the States, are reserved to the States respect- 
 ively, or to the people," are not to be interpreted as reserving to 
 the States, or to the people, those powers which, though not 
 granted to the Federal Government, are, in fact, such as are of 
 federal importance and which the States are unable effectively 
 to exercise. 
 
 The argument of James "Wilson, made in 1785 when the United 
 States was under the Articles of Confederation but applicable, 
 a fortiori, to the present Constitution, is in the following lan- 
 guage: ''Though the United States in Congress assembled de- 
 rive from the particular States no power, jurisdiction, or right 
 
 exigencies of a few year?, but was to endure through a long lapse of age?, the 
 events <>f 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; and restrict!, n- 
 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 mold and model the exercise of 
 its powers as its < \vn wisdom and the public interests slr-uld require."
 
 48 UNITED STATES CONSTITUTIONAL LAW. 
 
 which is not expressly delegated by the Confederation, it does 
 not then follow that the United States in Congress have no other 
 powers, jurisdiction, or rights, than those delegated by the par- 
 ticular States. The United States have general rights, general 
 powers, and general obligations, not derived from any par- 
 ticular States, nor from all the particular States taken separately ; 
 but resulting from the union of the whole. ... To many 
 purposes the United States are to be considered as one undivided, 
 independent nation; and as possessed of all the rights, 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 necessity, belong to the 
 United States in Congress assembled. There are many objects 
 of this extended nature." 
 
 President Roosevelt has expressly adopted the foregoing doc- 
 trine as sound. He says : " I cannot do better than base my 
 theory of governmental action upon the words and deeds of one 
 of Pennsylvania's greatest sons, Justice James Wilson." Inter- 
 preting this theory, Roosevelt says : " He developed even before 
 Marshall the doctrine (absolutely essential not merely to the 
 efficiency but to the existence of this nation) that an inherent 
 power rested in the nation, outside of the enumerated powers con- 
 ferred upon it by the Constitution, in all cases where the object 
 involved was beyond the power of the several States and was a 
 power ordinarily exercised by sovereign nations. In a remark- 
 able letter in which he advocated setting forth in early and clear 
 fashion the powers of the National Government, he laid down the 
 proposition that it should be made clear that there were neither 
 vacancies nor interferences between the limits of state and 
 national jurisdictions, and that both jurisdictions together com- 
 posed only one uniform and comprehensive system of government 
 and laws; that is, whenever the States cannot act, because fche 
 need to be met is not one merely of a single locality, then the 
 National Government, representing all the people, should have 
 complete power to act. . .. . Certain judicial decisions have 
 done just what Wilson feared; they have, as a matter of fact, left
 
 PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. 49 
 
 vacancies?, lei't blanks between the limits of actual Xational juris- 
 diction over the control of the great business corporations. . . . 
 The legislative or judicial actions and decisions of which I com- 
 plain, be it remembered, do not really leave to the States power 
 to deal with corporate wealth in business. Actual experience has 
 shown that the States are wholly powerless to deal with this sub- 
 ject; and any action or decision that deprives the nation of the 
 power to deal with it, simply results in leaving the corporations 
 absolutely free to work without any effective supervision what- 
 ever; and such a course is fraught with untold danger to the 
 future of our whole system of government, and, indeed, to our 
 whole civilization." 51 
 
 The foregoing doctrine is one quite different from the estab- 
 lished doctrine of implied powers as developed by ^Marshall, a 
 doctrine which will be discussed in the next chapter. That doc- 
 trine, as it will be seen, holds that from an expressly given fed- 
 eral power there may be implied those powers which are necessary 
 and proper for effectively exercising it. The doctrine thus does 
 not justify, under any circumstances, the assumption of a new 
 power by the Federal Government. The Wilson-Roosevelt doc- 
 trine on the other hand asserts that a given subject not originally 
 within the sphere of federal control, may, by mere change of 
 circumstances, be brought within the federal field. Thus, to 
 illustrate concretely, it might be argued according to the doctrine 
 of implied powers that as implied in authority expressly granted 
 to Congress to regulate foreign and interstate commerce, Congress 
 might compel all corporations or individuals manufacturing com- 
 modities for foreign or interstate commerce to obtain a federal 
 license, such a license to be granted upon such terms as Congress 
 might see fit to dictate. According to the Wilson-Roosevelt doc- 
 trine, however, it could be argued that the control of manufactur- 
 ing is iii-it expressly denied the Federal Government nor expressly 
 placed within the exclusive control of the States, and that, under 
 existing industrial conditions it beimr of federal importance that 
 those manufacturing concerns, or certain of them, should be regu- 
 
 6i Speech at the dedication of the Pennsylvania capitol at Harrisburg. 
 4
 
 50 UNITED STATES CONSTITUTIONAL LAW. 
 
 lated, and the States being incompetent to furnish the necessary 
 regulation, therefore, the Federal Government has the power. 
 
 Here, it will be seen, there is no resort whatever to the com- 
 merce clause, or to any other express grant of power. The doc- 
 trine is thus one which in the absence of express prohibition in 
 the Constitution will support the assumption by the Federal 
 Government of any power whatsoever if there be fair ground for 
 holding that regulation is needed and that the States are not able 
 to furnish it. 
 
 In the very recent case of Kansas v. Colorado, 52 decided May 13, 
 1907, substantially this Wilson doctrine was urged upon the court, 
 the argument being, as summarized by Justice Brewer that : "All 
 legislative power must be vested in either the State or the 
 National Government, no legislative powers belong to a state 
 government other than those which affect solely the internal affairs 
 of that State; consequently all powers which are national in their 
 scope must be found vested in the Congress of the United States." 
 
 In refutation of this argument Justice Brewer says : " But the 
 proposition that there are legislative powers affecting the nation 
 as a whole which belong to, although not expressed in, the grant 
 of powers, is in direct conflict with the doctrine that this is a 
 government of enumerated powers. That this is such a govern- 
 ment clearly appears from the Constitution, independently of the 
 Amendments, for otherwise there would be an instrument grant- 
 ing certain specified things made operative to grant other and 
 distinct things. This natural construction of the original body 
 of the Constitution is made absolutely certain by the Tenth 
 Amendment. This Amendment, which was seemingly adopted 
 with prescience of just such contention as the present, disclosed 
 the widespread fear that the ISTational Government might, under 
 the pressure of a supposed general welfare, attempt to exercise 
 powers which had not been granted. With equal determination 
 the framers intended that no such assumption should ever find 
 justification in the organic act, and that if, in the future, further 
 
 52206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.
 
 PRINCIPLES OF CONSTITUTIONAL CONSTKUCTION. 51 
 
 powers seemed necessary, they should be granted by the people 
 in the manner they had provided for amending that act. It reads : 
 1 The powers not delegated to the United States by the Constitu- 
 tion, nor prohibited by it to the States, are reserved to the States 
 respectively, or to the people.' The argument of counsel ignores 
 the principal factor in this article, to wit, ' the people.' Its prin- 
 cipal purpose was not the distribution of power between the 
 United States and the 'States, but a reservation to the people of 
 all powers not granted. % The Preamble of the Constitution de- 
 clares who framed it, ' We, the People of the United States,' 
 not the people of one State, but the people of all the States; and 
 Article X reserves to the people of all the States the powers not 
 delegated to the United States. The powers affecting the internal 
 affairs of the States not granted to the United States by the Con- 
 stitution, nor prohibited to it by the States, are reserved to the 
 States respectively, and all powers of a national character which 
 are not delegated to the National Government by the Constitution 
 are reserved to the people of the United States. The people who 
 adopted the Constitution knew that in the nature of things they 
 could not foresee all the questions which might arise in the future, 
 all the circumstances which might call for the exercise of further 
 national powers than those granted to the United States, and 
 after making provision for an amendment to the Constitution by 
 which any needed additional powers would be granted, they re- 
 served to themselves all powers not so delegated. This Article X 
 is not to be shorn of its meaning by any narrow or technical con- 
 struction, but is to be considered fairly and liberally so as to give 
 effect to its scope and meaning." 
 
 28. Stare Decisis. 
 
 There have not been many cases in which the Supreme Court 
 has explicitly and avowedly overruled its prior decisions, but 
 there have been frequent instances in which the doctrines declared 
 in prior cases, have been in part evaded or modified without 
 explicit repudiation.
 
 52 UNITED STATES CONSTITUTIONAL. LAW. 
 
 Taney iii the Passenger Cases 50 says : " I had supposed that 
 question to be settled, so far as auy question upon the 
 construction of the Constitution ought to be regarded as closed 
 by the decision of this court. 1 do not, however, object to the 
 revision of it, and am quite willing that it be regarded hereafter 
 as the law of this court that its opinion upon the construction of 
 the Constitution is always open to discussion when it is supposed 
 to be founded in error, and that its judicial authority should 
 hereafter depend altogether on the force of the reasoning by 
 which it is supported." 
 
 In Washington University v. Rouse 54 Justice Miller said: 
 " With as full respect for the authority of former decisions as 
 belongs, from teaching and habit, to judges trained in the com- 
 mon law system of jurisprudence, we think there may be ques- 
 tions touching the powers of legislative bodies which can never 
 be closed by the decisions of a court." 
 
 There are indeed good reasons why the doctrine of stare decisis 
 should not be so rigidly applied to the constitutional as to other 
 laws. 
 
 In cases of purely private import, the chief desideratum is that 
 the law remain certain, and, therefore, where a rule has been 
 judicially declared and private rights created thereunder, the 
 courts will not, except in the clearest cases of error, depart from 
 the doctrine of stare decisis. When, however, public interests are 
 involved, and especially when the question is one of constitutional 
 construction, the matter is otherwise. An error in the construc- 
 tion of a statute may easily be corrected by a legislative act, but a 
 constitution and particularly the federal Constitution, may be 
 changed only with great difficulty. Hence an error in its inter- 
 pretation may for all practical purposes be corrected only by the 
 court's repudiating or modifying its former decision. 55 
 
 53 7 How. 233 ; 12 L. ed. 702. 
 58 Wall. 430: 10 L. ed. 498. 
 65 Cf. Baldwin, American Judiciary, pp. 56-57.
 
 CHAPTEE III. 
 
 THE DIVISION OF POWERS BETWEEN THE UNITED STATES AND 
 ITS MEMBER STATES. 
 
 29. Federal Powers. 
 
 The United States Constitution serves a double purpose. It 
 operates as an instrument to delimit the several spheres of federal 
 and state authority, and to provide for the organization of the 
 Federal Government. In this chapter we shall be concerned with 
 only the first of these two subjects. That quaestio vexata of the 
 original purpose of the Constitution, whether intended to serve 
 as an agreement between sovereign compacting States, or as the 
 fundamental instrument of government of a single sovereign peo- 
 ple, it is fortunately no longer necessary to discuss. For the pur- 
 pose of a treatise on the constitutional law of the United States 
 as it exists to-day it is sufficient to describe the Constitution as a 
 legal instrument distributing the totality of governmental powers 
 between the federal and state governments, according to the gen- 
 eral principle that the powers granted the Federal Government 
 are specified, exjnv>sly T by implication, and that the remainder 
 of the possible governmental 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." 1 
 
 It will have been noticed that in speaking of the powers 
 possessed by the General Government, the term *' delegated " is 
 u-rd, whereas, in speaking of the powers possessed by the States, 
 the word " reserved " is employed. This exhibits the fundamental 
 principle governing the division of powers between the General 
 Government and the States according to which the- former pos- 
 sesses only those powers that are by the Constitution granted to 
 it, whereas the States are entitled to all powers except tiiose ex- 
 
 i Tenth Amendment. As to certain of the powers printed to the Federal 
 Government, as will presently appear, the fart that they may he exercised 
 by that government does not. until they are so exercised, deprive the States 
 of the authority to exercise them. 
 
 [53]
 
 54 UNITED STATES CONSTITUTIONAL LAW. 
 
 pressly or by implication denied to them by the Constitution. 
 Thus the General Government is commonly spoken of as one of 
 enumerated and the State governments as governments of un- 
 enumerated powers. 
 
 This distinction would in all probability have been recognized 
 and adopted by the Supreme Court as a logical corollary from the 
 general character of the Constitution, had there been no express 
 direction in that instrument itself to such effect. Out of super- 
 abundant caution, however, the Tenth Amendment was adopted. 
 
 The phrase " or to the people " covers these powers which, 
 though constitutionally exercisable by the States, for aught the 
 federal Constitution has to say, are by their own state constitu- 
 tions denied to their respective governments. Thus the federal 
 and the state constitutions differ in this important respect tha 
 the grants of the former operate to endow the General Govern- 
 ment with powers that it would not otherwise possess, whereas 
 the provisions of the latter in the main operate to deprive the 
 governments which they create of powers they otherwise would 
 possess. 
 
 Except when expressly limited, as, for instance, where the 
 power which is given to levy taxes is restricted by the provisions 
 that " all duties, imposts, and excises shall be uniform throughout 
 the United States," that u no tax or duty shall be laid on articles 
 exported from any State," and that " no capitation or other direct 
 tax shall be laid, unless in proportion to the census or enumera- 
 tion hereinbefore directed to be taken," a power granted to Fed 
 eral Government is construed to be absolute in character. 
 
 30. Express and Implied Powers. 
 
 Though the Federal Government is one of enumerated powers, 
 its powers are not described in detail, and from the very begin- 
 ning it has been construed to possess not simply those powers 
 that are specifically or expressly given it, but also those necessary 
 and proper for the effective exercise of such express powers. 
 After enumerating the various powers that Congress is to pos- 
 sess, the Constitution declares 2 " [The Congress shall have 
 
 a Art. I, Sec. 8.
 
 DIVISION OF POWEKS BETWEEN U. S. AND MEMBER STATES. 55 
 
 power] to make all laws which shall be necessary and proper 
 for carrying into execution the foregoing powers, and all other 
 powers vested by this Constitution in the Government of the 
 United States or in any department or officer thereof." Further- 
 more it will be noticed that in the Tenth Amendment, above 
 quoted, the powers reserved to the States or to the people are not 
 tb>se expressly delegated to the United States, but simply those 
 not delegated. This is significant in view of the fact that in the 
 corresponding section in the Articles of Confederation the word 
 " expre<<ly " is carefully inserted. 3 
 
 31. Federal Powers to be Liberally Construed. 
 
 The Constitution is in terms and general character a grant of 
 powers a grant from the people of the several States to the 
 National Government, and, strictly speaking, as in all grants of 
 power, the authority that may be exercised thereunder is to be 
 limited to that specifically granted or impliedly given. But 
 whereas, in general, grants of authority are strictly construed as 
 against the grantee and in favor of the reserved rights of the 
 grantor, in the case of the federal Constitution this principle has, 
 it is seen, not been applied. The justification for this has been 
 deduced from the general nature of the Constitution as an instru- 
 ment of government, and from the character of the end which was 
 sought to be obtained by its establishment. The Federal Govern- 
 ments exists not for the benefit of those who exercise its powers, 
 but to subserve the national interests, political, industrial, and 
 social, of the people who framed and adopted it. While, there- 
 fore, it is, in essential character, a grant of powers, and is to be 
 construed as such, its terms are to be interpreted in the light of 
 the fact that the people in adopting it desired the establishment 
 and maintenance of an effective Xational Government, and there- 
 fore one endowed with powers commensurate with that end. 4 
 
 3 Article II. "Each State retains its sovereignty, freedom and independence, 
 and every power, jurisdiction and right, which is not by this confederation 
 expressly delegated to the United States in Congress assembled." 
 
 4 " In construing a grant or surrender of powers by the people to a monarch, 
 for his own benefit or use, it is not only natural, but just, to presume, as io
 
 56 UNITED STATES CONSTITUTIOXAL LAW. 
 
 In the case of Gibbous v. Ogdeu 5 Marshall took pains to 
 assert that there is no good reason for holding that either 
 the express or the implied powers of the National Govern- 
 ment are to be strictly construed. His language is as fel- 
 lows: " 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 construed ? Is there one sentence in the Con- 
 stitution which gives countenance to tins rule ? In the last of the 
 enumerated powers, that which grants, expressly, the means of 
 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 ex- 
 tended to the powers which are conferred; nor is there one sen- 
 tence in the Constitution 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 justi- 
 fied in adopting it. What do gentlemen mean by a strict con- 
 struction? If they contend only against that enlarged construe- 
 all other cases of grants, that the parties had not in view any large sense of 
 the terms, because the objects were a derogation presumably from their rights 
 and interests. But in construing a constitution of government, framed by the 
 people for their own benefit and protection, for the preservation of their rights, 
 and property, and liberty; where the delegated powers are not, and cannot be 
 used for the benefit of their rulers, who are but their temporary servants and 
 agents ; but are intended solely for the benefit of the people, no such presump- 
 tion of an intention to use che words in the most restricted sense necessarily 
 arises. The powers given by the people to the General Government are not 
 necessarily carved out of the powers already confided to the state governments. 
 They may be such as they originally reserved to themselves. And, if they are 
 not, the authority of the people in their sovereign capacity, to withdraw power 
 from their state functionaries, and to confide it to the functionaries of the 
 General Government, cannot be doubted or denied. If they withdraw the power 
 from the state functionaries, it must be presumed to be, because they deem it 
 more useful for themselves, more for the common benefit and common protec- 
 tion, than to leave it where it has been hitherto deposited. . . . The state 
 governments have no right to assume that the power is more safe cr more 
 useful with them, than with the General Government; that they have a higher 
 capacity and a more honest desire to preserve the rights and liberties of the 
 people than the General Government." Story Commentnries, 413-416. 
 
 6 9 Wh. 1 ; 6 L. ed. 23.
 
 DIVISION OF POWERS BETWEEN F. S. AND MEMBER STATES. 57 
 
 tioii winch would extend words beyond 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 oC the 
 instrument; for that narrow construction, which would cripple 
 the government and render it unequal to the objects for which 
 it was declared to be instituted, and to which the powers given, 
 as fairly understood, render it competent; then we cannot per- 
 ceive the propriety of this strict construction, 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 in- 
 tend to convey, the enlightened .patriots who framed our Consti- 
 tution, and the people who adopted it, must be understood to ha^ e 
 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 expressed in the instru- 
 ment 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 investment of power for the gen- 
 oral advantage, in the hands of agents selected for that purpose, 
 which .power can never be exercised 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, 
 j taken in connection with the purposes for which they were con- 
 ferred."
 
 58 UNITED STATES CONSTITUTIONAL' LAW. 
 
 32. Strict Construction a Corollary of the States' Rights Doc- 
 trine. 
 
 "Without in any way questioning the validity of the rule of 
 construction stated in the preceding paragraphs, it is to be ob- 
 served that its propriety is absolutely dependent upon the prior 
 assumption that the Federal Government exists as the agent of 
 the people, and not, according to the States' Rights theory, as the 
 agent of the States. Had the theory which conceives the United 
 States to be a confederacy of sovereign States, and its govern- 
 ment as the agent of these creating component units, been ac- 
 cepted, it would have logically followed that a doctrine of strict 
 construction of federal powers would have been appropriate, for 
 then these powers would have been in direct derogation of the 
 rights reserved by the States that granted them. Strict construc- 
 tion thus is a logical corollary of the States' Rights theory. 
 
 33. " Necessary and Proper." 
 
 In pursuance of the foregoing principles the Supreme Court 
 of the United States has, from the very beginning, declared that 
 the powers thus impliedly granted the General Government as 
 necessary and proper for the exercise of the powers expressly 
 given, are to be liberally construed. The words '" necessary and 
 proper," it was early held, were not to be interpreted as endowing 
 the General Government simply with those powers indispensably 
 necessary for the exercise of its express powers, but as equipping 
 it with any and every authority the exercise of which may in any 
 way assist the Federal Government in effecting any of the pur- 
 poses the attainment of which is within its constitutional sphere. 
 Thus in the case of the United States v. Fisher, 6 decided in 1804, 
 Marshall declared : " 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 
 
 62 Cr. 358; 2 L. ed. 304.
 
 DIVISION OF POWEBS BETWEEN U. S. AND MEMBER STATES. 59 
 
 other means. Congress might possess the choice of means which 
 are in fact conducive to the exercise of a power granted by the 
 Constitution." 
 
 34. McCulloch v. Maryland. 
 
 The classic statement, however, of the scope of the " implied " 
 powers of Congress is of course that made by Marshall in the 
 opinion which he rendered in McCulloch v. Maryland. 7 In that 
 great case, the Chief Justice says : " It may with great reason 
 be contended, that a government, entrusted with such ample 
 powers [as is the United States] on the due execution of which 
 the happiness and prosperity of the Xation so vitally depends, 
 must be entrusted with ample means for their execution. The 
 power being given, it is the interest of the Xation to facilitate 
 its execution. It can never be their interest, and cannot be pre- 
 sumed to have been their intention, to stay and embarrass its 
 execution by withholding the most appropriate means." 
 
 The determination of what are appropriate means must, Mar- 
 shall goes on to declare, belong to the government which is to 
 employ them. " The government which has a right to do an act, 
 and has imposed on it the duty of performing that act," he says, 
 " must, according to the dictates of reason, be allowed to select 
 the means." 
 
 To the argument that a selected means must be an indispens- 
 able as well as a proper one, Marshall replies : " Is it true that 
 this is the sense in which the word l necessary' is always used? 
 Does it always import an absolute physical necessity, so strong 
 that one thing, to which another may be termed necessary, can- 
 not 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 ap- 
 proved authors, we find that it frequently imports no more than 
 that one thing is convenient or useful, or essential to another." 
 
 Applying this interpretation of the word to its use in the Con- 
 stitution the opinion declares: 
 
 74 Wh. 316; 4 L. ed. 579.
 
 60 UNITED STATES CONSTITUTIONAL LAV,-. 
 
 " 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 confiding the choice of means to such narrow 
 limits as not to leave it in the power of Congress to adopt any which 
 might be appropriate, and which were conducive to the end. This 
 provision 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 
 unwise 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 legislature of the capacity to avail itself of experience, to ex- 
 ercise its reason, and to accommodate its legislation to circum- 
 stances. 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." 
 
 - In conclusion of this point, the Chief Jifstice says : " The re- 
 sult of the most careful and attentive consideration bestowed 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 selection 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 respect- 
 ing the right to legislate on that vast mass of incidental powers 
 which must be involved in the Constitution, if that instrument be 
 not a splendid bauble. AYe 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
 
 ION OF POWEK.S BETWEEN U. S. AND MEilBEB STATES. 61 
 
 Constitution must allow to the national legislature that discre- 
 tion, 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 bene- 
 ficial to the people. Let the end be legitimate, let it be within 
 the scope of the Constitution, and all means which aj*e appro- 
 priate, which are plainly adapted to that end, which are not 
 prohibited, but consistent with the letter and spirit of the Con- 
 stitution, are constitutional.'' 
 
 Reviewing the effect of this decision, it is seen that the 
 words '* and proper " as used in the phrase '' necessary and 
 proper " are construed not as declaring that a means selected by 
 Congress shall be proper as well as necessary that is, indis- 
 pensable for carrying into effect a specified power, but as quali- 
 fying and extending the force of ' ; necessary " so as to render 
 constitutional the selection of any means that may be appropriate, 
 that is, may in any way assist the General Government in the 
 exercise of its constitutional functions. It need not be said, of 
 course, that the question as to whether or not the particular 
 means selected is the best possible means that might have been 
 adopted, is one for Congress to answer. All that the courts have 
 to consider in passing upon its constitutionality is as to whether 
 it is calculated in any appreciable degree to advance the consti- 
 tutional end involved. 
 
 One further fact regarding the implied powers of Congress is 
 to be noticed. This is that a power employed as incidental to the 
 exercise of an express power may be used free from the limitation 
 under which it would rest if exercised as an express power. Thus, 
 in Veazie Bank v. Fenno 8 and Head Money Cases 9 the Supreme 
 Court decided that the power of taxation when used simply as a 
 means for regulating commerce and currency, is not subject to 
 the constitutional limitations under which it would rest if exer- 
 cised for the purpose of raising a revenue. In the Head Money 
 s the court declared, relative to a per capita tax levied by 
 
 88 Wall. 533: 19 L. ed. 482. 
 
 9112 U. S. 580: 5 Sup. Ct. Rep. 247: 28 L. ed. 798.
 
 62 UNITED STATES CONSTITUTIONAL LAW. 
 
 Congress upon persons, not citizens of the United States, coming- 
 to this country: "If this is an expedient regulation of com- 
 merce by Congress, and the end to be .obtained is one falling 
 within the power, the act is not void, because, within a loose- 
 and more extended sense than was used in the Constitution,. 
 it is called a tax. In the case of Veazie Bank v. Fenno, the enor- 
 mous tax of ten per cent per annum on the circulation of state 
 banks, which was designed, and did have the effect, to drive all 
 such circulation out of existence, was upheld because it was a 
 means properly adopted by Congress to protect the currency which 
 it had created. ... It was not subject, therefore, to the rules 
 which would invalidate an ordinary tax pure and simple." 
 
 35. Administrative Necessity as a Source of Federal Power. 
 
 Since the close of the Civil War the sovereignty of the National 
 Government has been undisputed. Starting with this as a funda- 
 mental premise, constitutional development of the last forty years 
 has been in the direction of endowing the Federal Government 
 with administrative powers adequate for the accomplishment of 
 the purposes for which it is acknowledged to exist. Just as the 
 doctrine of implied powers has been used to broaden the scope of 
 federal authority at the expense of the reserved rights of the 
 States, so the principle of administrative efficiency has been 
 employed to permit the field of individual rights to be entered. 
 Thus in a remarkable series of cases the courts have permitted 
 the exercise by federal executive officials of degrees of ad- 
 ministrative discretion that would have startled constitutional 
 jurists of but a generation ago. 
 
 In these cases the Supreme Court has frankly argued that 
 where, for the efficient performance of the administrative duties 
 laid upon the General Government, it is necessary that an admin- 
 istrative order should take the place of a judicial process, the 
 private rights of person and property are not to be allowed to 
 stand in the way. In Murray's Lessee v. Hoboken 10 it was held 
 that an administrative officer could fix finally, without judicial 
 
 1018 How. 272; 15 L. ed. 372.
 
 DIVISION OF POWERS BETWEEN U. S. AND MEMBER STATES. 63 
 
 review, the amount due the Government from a public official, 
 and collect it by a distress warrant. 
 
 In Springer v. United States 11 the power of the Government 
 to collect a tax by a sale of land under a warrant issued by the 
 collector was upheld. In Smelting Co. v. Kemp 12 the adminis- 
 trative decision of the United States Land Office was held final 
 as to the facts within its statutory jurisdiction. 
 
 The power of the Postmaster-General to exclude from the postal 
 service the mail of concerns whose business he deems fraudulent 
 has been sustained, though, by the statute conferring the power, 
 no right of judicial review is given. The Supreme Court say: 
 " If the ordinary daily transactions of the Departments which 
 involve an interference with private rights were required to be 
 submitted to the courts before action was finally taken, the result 
 would entail practically a suspension of some of the most im- 
 portant functions of government." 13 In Bartlett v. Kane 14 the 
 court refused to examine the correctness of an appraisement by an 
 administrative officer of property for taxation, saying : " The 
 interposition of the courts in the appraisement of importations 
 would involve the collection of the revenues in inextricable con- 
 fusion and embarrassment." Finally, and most extreme of all, 
 with regard to the exclusion of aliens, it has been held that an 
 administrative officer may decide finally whether or not a person 
 claiming to be a citizen of the United States is in fact such, and, 
 therefore, entitled to enter this country. 15 This decision Justice 
 Brewer, in his dissenting opinion, characterized as " appalling ;" 
 but there is little chance that its doctrine will be disturbed in 
 subsequent cases. 16 
 
 11 102 U. S. 5S6; 26 L. ed. 253. 
 
 12 104 t". S. 636; 26 L. ed. 875. 
 
 "Public Clearing House v. Coyne (194 U. S. 497; 24 Sup. Ct. Rep. 789; 
 48 L. ed. 1092). 
 
 i 10 How. 203; 14 L. ed. 931. 
 
 is United States v. Ju Toy (198 U. S. 253; 25 Sup. Ct. Rep. 644; 49 
 L. ed. 1040). 
 
 is This subject of the conclusiveness of administrative determinations will 
 receive more particular treatment in chapter LX1V.
 
 64 UNITED STATES CONSTITUTIONAL LAW. 
 
 In a manner similar to that in which the National Government 
 has thus by Congress and the Supreme Court been equipped with 
 the powers necessary for the efficient performance of the admin- 
 istrative duties which modern industrial and commercial condi- 
 tions have thrown upon it, the Supreme Court has, upon simple 
 ground of necessity, sanctioned the exercise by the Federal Gov- 
 ernment of powers requisite to meet the problems assumed by it 
 in the imperialistic policy upon which it has entered since the 
 Spanish war. 
 
 In De Lima v. Bidwell 17 the power of the L'nited States over 
 its dependencies was declared to arise, not out of the territorial 
 clause, but from the necessities of the case and from the inability 
 of the States to act on the subject. In Hawaii v. Alankichi 18 
 upon similar grounds of expediency the right to jury trial was 
 asserted not to have been extended to Hawaii, although by joint 
 resolution Congress had declared that all local laws inconsistent 
 with the Constitution of the United States should have no force. 
 In Downes' v. Bidwell the majority justices, Brown excepted, 
 argue at length the practical necessity of conceding to the General 
 Government the power of annexing foreign territory without in- 
 corporating it into the United States. 
 
 tTpon the same grounds of expediency and practical necessity 
 the Supreme Court, in United States v. Kagarna, 18a has sustained 
 the continued exclusive control of the Federal Government over 
 the Indians, even though their tribal autonomy is no longer re- 
 spected by Congress. 
 
 36. International Sovereignty and Responsibility as a Source 
 of Implied Powers. 
 
 Starting from the premise that in all that pertains to inter- 
 national relations the United States appears as a single sovereign 
 nation, and that upon it rests the constitutional duty of meeting 
 all international responsibilities, the Supreme Court has deduced 
 
 " 182 U. S. 1 ; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041. 
 18190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016. 
 iso 118 U. S. 375; 6 Sup. Ct. Rep. 1100; 30 L. ed. 228.
 
 DIVISION OF POWERS BETWEEN U. S. AND MEMBER STATES. 65 
 
 corresponding federal powers. In Fong Yue Ting v. United 
 States 19 that court say: " The United States are a sovereign and 
 independent nation, and are vested by the Constitution with the 
 entire control of international relations, and with all the powers 
 of government necessary to maintain that control and to make it 
 effective." 
 
 Thus, from this general source has been deduced the impljed 
 power of the United States to punish the counterfeiting in this 
 country of the securities of foreign countries, the authority to 
 annex by statute unoccupied territory, to establish in foreign 
 countries judicial tribunals, to lease and administer foreign terri- 
 tory, to include or to expel from our shores undesirable aliens, 
 and in general to exercise by treaty or statute all those powers 
 properly to be embraced under the term "foreign relations" 
 which other sovereign States possess. The extent of the authority 
 of the United States under its treaty-making powers will re- 
 ceive special treatment in a later chapter. It is sufficient to 
 point out in this place that decisions of the Supreme Court have 
 established the doctrine that in the exercise of its treaty-making 
 powers, and in fulfilling its international responsibilities, the 
 United States may exercise regulative control over matters which 
 are not within the legislative power of Congress and which are in 
 general reserved to the States. In short, it may be stated as an 
 established principle of our constitutional law that the supreme 
 purpose of our Constitution is the establishment and maintenance 
 of a State which shall be nationally and internationally a sover- 
 eign body, and, therefore, that all the limitations of the Con- 
 stitution, express and implied, whether relating to the reserved 
 rights of the States or to the liberties of the individual, are to 
 be construed as subservient to this one great fact. 
 
 37. Resulting Powers. 
 
 The two preceding sections have shown that the doctrine of 
 implied powers is sufficiently broad to justify the exercise by the 
 Federal Government of powers not deduced from specific grants 
 
 "149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905. 
 5
 
 66 UNITED STATES CONSTITUTIONAL LAW. 
 
 of authority, but from the general fact that the United States is, 
 with reference to its own citizens and its constituent Common- 
 wealths, a fully sovereign national -State, and, with reference to 
 other States, a political power equipped with all the authority 
 possessed by other independent States. Story in his Commen- 
 taries describes as " Resulting Powers " these federal powers 
 which result from the aggregate authority of the General Govern- 
 ment. That federal authority may be deduced from this general 
 source and that it is not necessary for the Federal Government 
 to trace back every one of its powers to some single grant of 
 authority, was early stated by Marshall in Cohens v. Virginia. 20 
 In that case he said : " It is to be observed that it is not indis- 
 pensable to the existence of every 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 substantive powers expressly defined, or 
 from them all combined. It is allowable to group together any 
 number of them and to infer from them all that the power claimed 
 has been conferred." And later in the same opinion he says : 
 "And it is of importance to observe that Congress has often exer- 
 cised, without question, powers that are not expressly given nor 
 ancillary to any single enumerated power." 
 
 38. Inherent Sovereign Powers. 
 
 Sometimes confused with, but quite distinct from the doctrine 
 which ascribes to the Federal Government plenary authority in 
 matters international, and quite different also from the doctrine 
 of resulting powers is that theory which argues the possession 
 generally by the United States of " inherent " sovereign powers 
 that is, powers not regarded as implied in express grants of 
 authority whether singly or collectively considered, but as flowing 
 directly from the simple fact of national sovereignty. The two 
 former doctrines are fairly deducible from the doctrine of im- 
 plied powers. The latter doctrine, upon the contrary, would 
 
 206 Wh. 264; 5 L. ed. 257.
 
 DIVISION OF POWERS BETWEEN U. S. AND MEMBER STATES. 67 
 
 derive federal authority not from powers expressly granted, but 
 from an abstraction, and would, at a stroke, equip the Federal 
 Government with every power possessed by any other sovereign 
 State. 21 
 
 There can be no question as to the constitutional unsoundness, 
 as well as of the revolutionary character, of the theory thus 
 advanced. To accept it would be at once to overturn the long 
 line of decisions that have held the United States Government 
 to be one of limited, enumerated powers. Taney in denying the 
 President the right to authorize a suspension of the writ of habeas 
 corpus explicitly repudiated the doctrine. " Nor can any argu- 
 ment be drawn," he said, " from the nature of sovereignty, or the 
 necessities of government for self-defense in times of tumult and 
 
 21 This theory has played a certain part in our constitutional history for 
 many years, and was especially pressed during the period following the 
 Spanish-American War and before the decision of the recent Insular Cases. 
 Tims, Senator Platt of Connecticut declared in the Senate, December 19, 1898, 
 that the United States " possesses every sovereign power not reserved in its 
 Constitution to the States or to the people; that the right to acquire territory 
 was not reserved, and is, therefore, an inherent sovereign right; that it is a 
 right upon which there is no limitation and with regard to which there is no 
 qualification, that in certain instances the right may be inferred from specific 
 clauses in the Constitution but that it exists independent of the clauses; that 
 in the right to acquire territory is found the right to govern it; that as the 
 right to acquire is a sovereign and inherent right, the right to rule is a 
 sovereign right not limited in the Constitution." Congressional Record, 
 XXXII, No. II, pp. 321-3. 
 
 So also, Senator Foraker of Ohio declared in the Senate, July 1, 1898, in 
 response to a question as to the constitutional source whence he derived the 
 power of the United States to annex foreign territory, that " the power was 
 to be found inherent in our sovereignty attached to it necessarily as a part 
 of our sovereignty as a nation," and " was also to be found in the Constitu- 
 tion expressly conferred upon Congress by that provision of the Constitution 
 which authorizes Congress to provide for the general welfare." When asked 
 if he called this doctrine the "higher law," he replied: "The proposition is 
 that it is inherent in sovereignty to do whatever sovereignty may see fit to do, 
 and among other things to acquire territory." 
 
 Of substantially the same character are the arguments of Gardiner (Our 
 Right io Acquire and Hold Foreign Territory, Putnams', 1899), and of 
 Magoon, Law Officer, War Department (Report on the Legal Status of the 
 Territory and Inhabitants of the Islands Acquired by the United States during 
 the War toith Spain. Doc. 234, 56th Cong., 1st Session).
 
 gg I'xiTED STATES CONSTITUTIONAL LAW. 
 
 danger. The Government of the United States is one of dele- 
 gated and limited powers. It derives its existence and authority 
 altogether from the Constitution and neither of its branches can 
 exercise any of the powers of government beyond those specified 
 and granted." 22 
 
 Unfortunately, however, the Supreme Court has not always 
 been as careful as it might have been in repudiating the argu- 
 ment based upon the inherent sovereign rights of the National 
 Government. Although it has never explicitly justified the exer- 
 cise of a power by the Federal Government upon this ground, it 
 lias, obiter, several times used language suggesting its validity. 23 
 
 22 Ex parte Merryman (Campbell's Reports, 246). 
 
 23 In the Legal Tender Cases ( 12 Wall. 457 ; 20 L. ed. 287 ) , Justice Bradley 
 says: "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. . . . Such being the char- 
 acter 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 govern- 
 ment 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 lias 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 carrying on the government as constituted and vindicating its authority 
 and existence." 
 
 In United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 
 1015) the power of eminent domain was declared to be possessed by the United 
 States as an " incident of sovereignty," and because it " belongs to every 
 independent government." 
 
 In Church of Jesus Christ v. United States (136 U. S. 1; 10 Sup. Ct. Rep. 
 7S2; 34 L. ed. 478) " the power to make acquisitions of territory by conquest, 
 by treaty, and by cession " was declared to be possessed by the United States, 
 flot from any express or otherwise implied power, but because these are " an 
 incident of national sovereignty." 
 
 In Fong Yue Ting v. United States (149 U. S. 698; 13 Sup. Ct. Rep. 1016; 
 37 L. ed. 905) " the right to exclude or expel all aliens, or any class of aliens, 
 absolutely or upon certain conditions in war or in peace," was declared to 
 belong to the United States as " an inherent and inalienable right of every 
 sovereign and independent nation, essential to its safety, its independence, and 
 its welfare."
 
 DIVISION OF POWEUS BETWEEN U. S. AND MEMBER STATES. 69 
 
 These dicta which are cited in the footnote, if taken by them- 
 selves might seem to indicate the acceptance by the Supreme 
 Court of the doctrine of inherent sovereign powers of the General 
 Government. An examination of the cases in which they were 
 delivered discloses, however, that in each instance they were 
 obiter, the power that was sustained being actually justified as a 
 resulting or implied power. In the recent Insular Cases the doc- 
 trine was strongly urged upon the court but received no counte- 
 nance; and in Kansas v. Colorado, 24 a case decided in 1907, in 
 which the doctrine was set up in a somewhat disguised form, the 
 court was emphatic in its repudiation. 25 
 
 24200 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. eel. 956. 
 
 25 After referring to the absence of power in the Federal Government to con- 
 trol private property in the States, Justice Brewer, who rendered the opinion 
 of tlie court, said: "Appreciating the force of this, counsel for the govern- 
 ment relies upon 'the doctrine of sovereign and inherent power;' adding, 'I 
 am aware that in advancing this doctrine I seem to challenge great decisions 
 of the court, and I speak with deference.' His argument runs substantially 
 along this line: All legislative power must be vested in either the state or 
 the national government; no legislative powers belong to a state government 
 other than those which affect solely the internal affairs of that State; conse- 
 quently all powers which are national, in their scope must be found vested 
 in thft Congress of the United States. But the proposition that there are 
 legislative powers affecting the Nation as a whole which belong to, although 
 not expressed in the grant of powers, is in direct conflict with the doctrine 
 that this is a government of enumerated powers. That this is sueh a govern- 
 ment clearly appears from the Constitution, independently of the Amendments, 
 for otherwise there would be an instrument granting certain specified things 
 made operative to grant other and distinct things. This natural construction 
 of the original body of the Constitution is made absolutely certain by the Tenth 
 Amendment. This Amendment, which was seemingly adopted with prescience 
 of jnst uch contention as the present, disclosed the widespread fear that the 
 Notional (Government might, under the pressure of a supposed general welfare, 
 attempt to ex"rcise poweis which had not been granted. With eqnal deter- 
 mination the framers intended that no such assumption should ever find 
 justification in the organic act, and that if in the ftiture, further powers 
 seemed ne< i---ary. 1h,>y should be granted by tiie people in the manner they 
 had provided for amending that aet. It reads: 'The powers not delegated to 
 tl;4- rnib-d Slates by the Constitution, nor prohibited by it to the States, are- 
 reserved to the States respectively, or to the people.' The argument of counsel 
 ignores the principal factor in this article, to wit. 'the people.' Its principal 
 purpose wns not the distribution of power between the United States and the 
 States, but a reservation to the people of all powers not granted. The pre-
 
 70 UNITED STATES CONSTITUTIONAL. LAW. 
 
 39. Express Limitations Upon the Federal Government. 
 
 . The express limitations upon the powers of the Federal Gov- 
 ernment are in part limitations upon the manner of exercise of 
 powers expressly given, as, for example, that direct taxes shall be 
 apportioned among the several States according to their respective 
 populations, that naturalization, bankruptcy, and tariff laws shall 
 be uniform throughout the United States, etc. ; and in part absolute 
 prohibitions upon the exercise, in any manner, of the .powers 
 specified. These absolute prohibitions are to be found, in the 
 main, in Section 9 of Article I and in the first eight Amendments. 
 From the very first it has been construed by the Supreme Court 
 that the prohibitions contained in these Amendments apply only 
 to the United States. This was first authoritatively declared by 
 Marshall in the case of Barron v. Baltimore 26 decided in 1833. 
 
 am'ble of the Constitution declares who framed it, ' we, the people of the 
 United States,' not the people of one State, but the people of all the States; 
 and Article 10 reserves to the people of all the States the powers not delegated 
 to the United States. The powers affecting the internal affairs of the States 
 not granted to the United States by the Constitution, nor prohibited by it to 
 the States, are reserved to the States respectively, and all the powers of a 
 national character which are not delegated to the National Government by the 
 Constitution are reserved to the people of the United States. The people who 
 adopted the Constitution knew that in the nature of the things they could not 
 foresee all the questions which might arise in the future, all the circumstances 
 which might call for the exercise of further national powers than those 
 granted to the United States, and, after making provision for an amendment 
 to the Constitution by which any needed additional powers would be granted, 
 they reserved to themselves all powers not so delegated. This Article 10 is not 
 to be shorn of its meaning by any narrow or technical construction but is to 
 be considered fairly and liberally so as to give effect to its scope and meaning." 
 Mr. C. J. Tiedeman in his work The Umcritlcn Constitution of the United 
 States raises the point whether a correct interpretation of the Tenth Amend- 
 ment would not give to the National Government those powers the exercise of 
 which is prohibited to the States, but which are neither prohibited nor dele- 
 gated to the General Government. His claim is that the General Government 
 should be construed to have those powers, for, he argues, the powers must rest 
 somewhere; they are expressly prohibited to the States, and, therefore, they 
 must be possessed by the Nation. The advantage which he conceives would 
 follow from an acceptance of this principle would be the avoidance in many 
 cases of resorting to an undue straining of the doctrine of implied powers in 
 order to enable the General Government to exercise an authority essential to 
 its welfare but not expressly delegated to it. 
 26 7 Pet. 243 ; 8 L. ed. 672.
 
 DIVISION OF POWERS BETWEEN U. S. AND MEMBER STATES. 71 
 
 In his opinion rendered in that case, Marshall said: "The 
 plaintiff . . . insists that the [Fifth] 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. The question thus presented is, we think, 
 of great importance, but not of much difficulty. The Consti- 
 tution 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 established a 
 Constitution for itself, and in that Constitution, provided such 
 limitations and restrictions on the powers of its particular govern- 
 ment as its judgment dictated. The people of the United States 
 framed next a government for the United States as they supposed 
 best adapted to their situation, and best calculated to promote 
 their interests. The powers to be conferred on the Government 
 were to be exercised by itself; and the limitations on power, if 
 expressed in general terms, are naturally, and we think neces- 
 sarily, applicable to the government created by the instrument 
 They are limitations of power granted in the instrument itself, 
 and not of distinct governments framed by different persons and 
 for different purposes." 
 
 The correctness of this decision has never been questioned 
 either by the federal or the state courts. However, as we shall 
 notice in a later chapter, the argument has been made, but not 
 accepted as valid by the Supreme Court, that the clause of the 
 Fourteenth Amendment which provides that " Xo State shall 
 make or enforce any law which shall abridge the privileges or 
 immunities of citizens of the United States," should be so con- 
 strued as to render the provisions of the first eight Amendments 
 operative upon the States. 
 
 In regard to these first eight Amendments it has sometimes been 
 said that it was only an excess of caution that required their 
 incorporation in the federal Constitution. Inasmuch as the 
 United States was to have only the powers exprescly or impliedly 
 given it, it has been asserted that the General Government would 
 have been, in the absence of such express limitations, without
 
 72 UNITED STATES COXSTITTTIOXAL LAW. 
 
 the authority to exercise the powers that these Amendments 
 enumerate. 27 A consideration, however, of the construction which 
 several of the provisions of these Amendments have received, 
 especially during recent years, will, it is believed, make it evident 
 that these express limitations upon the Federal Government have 
 been of considerable importance. 28 
 
 40. Implied Limitations Upon the Federal Government. 
 
 The implied limitations upon the Federal Government are: 
 first, those implied in the express limitations; and second, those 
 which arise from the general nature of. the American federal 
 State. The Constitution looks to a preservation of the several 
 States in the administrative autonomy that is allotted to them, 
 and from this is deduced the principle that the Federal Govern- 
 ment may not, unless it be absolutely necessary to its own effi- 
 ciency, interfere with the free operation of state governments 
 either by way of imposing upon them the performance of duties, 
 or of unduly restraining their freedom of action by way of taxa- 
 tion or otherwise. 
 
 27 Indeed, in the eyes of some, of Hamilton at least, there were affirmative 
 reasons why these limitations should not be expressly stated. In The Federalist, 
 No. 84, after showing that Bills of Rights were " stipulations between K 
 arid their subjects, abridgements of prerogative in favor of privilege, reserva- 
 tions of rights not surrendered to the prince," whereas in constitutions " the 
 people in reality surrendered nothing," Hamilton proceeds : " I go further and 
 affirm that bills of rights, in the sense and to the extent they are contended 
 for, are not only unnecessary in the proposed Constitution, but would even be 
 dangerous. They would contain various exceptions to powers not granted; 
 and on this very account, would afford a colorable pretext to claim more than 
 were granted. For why declare that things shall not be done which there is 
 no power to do? Why, for instance, should it be said, that the liberty of the 
 press shall not be restrained, when no power is given by which restrictions 
 may be imposed? . . . Men disposed to usurp . . . might urge with a 
 semblance of reason, that the Constitution ought not to be charged with the 
 absurdity of providing against the abuse of an authority which was not given 
 and that the provision against the liberty of the press afforded a clear implica-- 
 tion, that a right to prescribe proper regulations concerning it, was intended 
 to be vested in the National Government." 
 
 28 See chapter XLV.
 
 DIVISION OF POWKES IJETWKEX U. S. AXD MEMBEB STATES. ~:} 
 
 The principles governing the deduction of implied from 
 express limitations upon the Federal Government are the same 
 as those applicable to the construction of implied powers. 
 
 In Fairbauk v. United States^ the court say: "We are not 
 here confronted with a question of the extent of the powers 
 of Congress, but one of the limitations imposed by the 
 Constitution on its action, and it seems to us clear that 
 the same rule and spirit of construction must also be 
 recognized. If powers granted are to be taken as broadly 
 granted and as carrying with them authority to pass those 
 acts which may be reasonably necessary to carry them into full 
 execution; in other words, if the Constitution in its grant of 
 powers is to be so construed that Congress shall be able to carry 
 into full effect the powers granted, it is equally imperative that, 
 where prohibition or limitation is placed upon the power of Con- 
 gress, that prohibition, or limitation should be enforced in its 
 : r and to its entirety. It would be a strange rule of construc- 
 tion that language granting powers is to be liberally construed, 
 and that language of restriction is to be narrowly and technically 
 construed. Especially is this true when, in respect to grants of 
 powers, there is, as heretofore noticed, the help found in the last 
 clause of the eighth section, and no such helping clause in respect 
 to prohibitions and limitation. The true spirit of constitutional 
 interpretation in both directions is to give full, liberal construc- 
 tion to the language, aiming ever to show fidelity to the spirit 
 and purpose.'"' 
 
 41. Exclusive and Concurrent Federal Powers. 
 
 The legislative powers possessed by the Federal Government 
 may be divided into two classes; the one embracing those powers 
 the exercise of which is exclusively vested in the General Govern- 
 ment; the other those which, in default of federal exercise, may 
 be employed by the States. 
 
 Some of the powers granted by the Constitution to the General 
 Government are expressly denied to the States. As to the ex- 
 
 29181 U. S. 283; 21 Sup. Ct. Rep. 64$; 45 L. ed. 862.
 
 74 UNITED STATES CONSTITUTIONAL LAW. 
 
 elusive character of the federal jurisdiction over these there can- 
 not be, of course, any question. It has, however, been often a 
 matter difficult of determination whether or not various of the 
 powers given to the United States, but not expressly made ex- 
 clusive, or denied to the States, are so exclusively subject to 
 federal control that the exercise of them by the States is under 
 no circumstances permissible. Shortly stated, the principle that 
 the Supreme Court has laid down for determining this question 
 in each particular case as it has arisen has been the following: 
 As regards generally the powers granted to the Xational Govern- 
 ment there is a difference between those which are of such a 
 character that the exercise of them by the States would be, under 
 any circumstances, inconsistent with the general theory or 
 national polity of the Constitution, and those not of such a char- 
 acter. As regards this latter class, the Supreme Court has held 
 that as long as Congress does not see fit to exercise them, the 
 States may do so. Laws thus passed by the States are, however, 
 of course subject to suspension at any time by the enactment by 
 Congress of laws governing the same subjects. 30 
 
 In the early case of Sturges v. Crowninshield 31 Chief Justice 
 Marshall, in reference to the matter of bankruptcy, laid 
 down the distinction between 'the exclusive and concurrent 
 powers of the Federal Government, in the following language: 
 " When the American people created a national legislature, 
 with certain enumerated powers, it was neither necessary nor 
 proper to define the powers retained by the States. These 
 powers proceed, not from the people of America, but from 
 the people of the several States; and remain, after the adoption 
 of the Constitution, what they were before, except so far as they 
 may be abridged by that instrument. In some instances, as in 
 making treaties, we find an express prohibition; and this shows 
 the sense of the convention to have been that the mere grant of 
 
 *o By the enactment of a federal law a state law governing the same subject 
 is not nullified but merely suspended during the existence of the federal 
 statute. Upon the repeal of the federal statute, the state law again operates 
 without any re-enactment by the State. 
 
 31 4 Wh. 122 ; 4 L. ed. 529.
 
 DIVISION OF POWERS BETWEEN U. S. AND MEMBEB STATES. 75 
 
 a power to Congress did not imply a prohibition on the States to 
 exercise the same power. But it has never been supposed that this 
 concurrent power of legislation extended to every possible case in 
 which its exercise by the States has not been expressly prohibited. 
 The confusion resulting from such a practice would be endless. 
 The principle laid down by the counsel for the plaintiff, in this 
 respect, is undoubtedly correct. Whenever the terms in which a 
 power is granted by Congress, or the nature of the power required 
 that it should be exercised exclusively by Congress, the subject is 
 as completely taken from the state legislatures as if they had been 
 expressly forbidden to act on it." 
 
 The principle thus stated by Marshall is a simple and rational 
 one, and has never been departed from by the Supreme Court, 
 though that court has at times varied in its judgment whether the 
 nature of a given power is such as to preclude state action in the 
 absence of congressional regulation. 
 
 In Houston v. Moore 32 Justice Johnson says : " The Con- 
 stitution containing a grant of powers in many instances 
 similar to those already existing in the state governments, 
 and some of those being of vital importance also to state 
 authority and state legislation, it is not to be admitted that the 
 mere grant of such powers in affirmative terms to Congress, does, 
 per se, transfer an exclusive sovereignty on such subjects to the 
 latter. On the contrary, a reasonable interpretation of that instru- 
 ment necessarily leads to the conclusion that the powers so granted 
 are never exclusive of similar powers existing in the States, unless 
 where the Constitution has expressly, in terms, given an exclu- 
 sive power to Congress, or the exercise of a like power is pro- 
 hibited to the States, or there is a direct repugnancy or incom- 
 patibility in the exercise of it by the States. The example of the 
 first class is to be found in the exclusive legislation delegated to 
 Congress over places purchased by the consent of the legislature 
 of the State in which the same shall be, for forts, arsenals, dock- 
 yards, etc. ; of the second class, the prohibition of a state to coin 
 money or emit bills of credit ; of the third class, as this court have 
 
 33 5 Wh. 1 ; 5 L. ed. 19.
 
 76 UNITED STATES CONSTITUTIONAL LAW. 
 
 already held, the power to establish a uniform rule of naturaliza- 
 tion (Chirac v. Chirac, 2 Wh. 259; -i L. ed. 2o-i) and the dele- 
 gation of admiralty and maritime jurisdiction (ILartin v. Hunter, 
 1 Wh. 304; 4 L. ed. 97). In all other cases not falling within 
 the classes already mentioned, it seems unquestionable that the 
 States retain concurrent authority with Congress, not only upon 
 the letter and spirit of the Eleventh [Tenth ?] Amendment of the 
 Constitution, bat upon the soundest principles of general rea- 
 soning." 
 
 So, later, in Cooley v. Board of Wardens 33 the court declare: 
 " The grant of commercial power to Congress does not contain 
 any terms which expressly exclude the States from exercising an 
 authority over its subject-matter. If they are excluded it must 
 be because the nature of the power thus granted to Congress 
 requires that a similar authority should not exist in the States." 
 
 Still later, in Cardwell v. American River Bridge Co., 34 the 
 court, after quoting a number of cases, say : " These cases 
 illustrate the general doctrine now fully recognized, that the 
 commercial power of Congress is exclusive of state authority 
 only when the subjects upon which it is exerted are national 
 in their character and admit and require uniformity of regu- 
 lations aifecting alike all the States, and that when the sub- 
 jects within that power are local in their nature or operation, or 
 constitute mere aids to commerce, the States may provide for 
 their regulation and management until Congress intervenes and 
 supersedes their action." 
 
 Applying this principle the Supreme Court has held that the 
 States may legislate regarding such matters as pilotage, wharves, 
 harbors, etc. ; but may not, even though Congress has not acted, 
 take any steps that in effect will operate to hinder or regulate the 
 carrying on of interstate commerce itself. " The power of Con- 
 gress," the court has said in Brown v. Houston, 35 " is certainly so 
 far exclusive that no State has power to make any law or regula- 
 
 3312 How. 299; 13 L. ed. 996. 
 
 34 113 U. S. 205; 5 Sup. Ct. Rep. 423; 28 L. ed. 959. 
 
 85 114 U. S. 622; 5 Sup. Ct. Rep. 1091; 29 L. ed. 257.
 
 DIVISION OF POWERS BETWEEN U. S. AND HEMDEK STATES. 77 
 
 tion which will affect the full and unrestrained intercourse and 
 trade between the States, as Congress has left it, or which will im- 
 pose any discriminating burden or tax upon the citizens or prod- 
 ucts of other States coming or brought within its jurisdiction. All 
 laws and regulations are restricted by natural freedom to some 
 extent, and where no regulation is imposed by the government 
 which has the exclusive power to regulate, it is an indication of 
 its will that the matter shall be left free. So long as Congress 
 does not pass any law to regulate commerce among the several 
 States, it thereby indicates its will that the commerce shall be 
 free and untrammeled, and any regulation of the subject by the 
 State is repugnant to such freedom." 36 
 
 & For a full discussion of the concurrent legislative powers of the States 
 with reference to interstate and foreign commerce, -see chapter XLII. For a 
 further discussion of concurrent powers with reference to the federal control 
 of elections, see chapter XXXVIII.
 
 CHAPTER IV. 
 
 THE SUPREMACY OF FEDERAL AUTHORITY. 
 42. Federal Supremacy. 
 
 The supremacy of the Federal Government, when operating 
 within its constitutional sphere, over all persons and bodies politic 
 within its territorial limits, is no longer open to question. That 
 the extent of this federal constitutional sphere of action is to be 
 determined in the last resort by the federal Supreme Court, is 
 equally well settled. 
 
 The maintenance of this supremacy unimpaired, while at the 
 same time preserving to the States their proper autonomy and 
 independence of action, has, however, been a difficult task; and, 
 so long as the federal form is retained, this task will continue to 
 tax to the utmost the legal and political abilities of our courts 
 and political bodies. With a quite proper motive those who have 
 controlled the public actions of the States, and those who have 
 guided the activities of the United States, have sought for their 
 respective governments the greatest possible constitutional power 
 and independence, and, therefore, have not hesitated to occupy 
 debatable territory. Thus, without there being any denial of the 
 supremacy of the federal law, when operating within its proper 
 field, or of the right of the federal Supreme Court to determine, 
 in final resort, the extent of that proper field, frequent conflicts 
 have resulted. These conflicts in their many and varied forms 
 furnish much of the material for the present treatise, and they 
 will be severally considered in their logical order. It will not 
 be without value, however, to review in this introductory chapter 
 some of the more important cases in which the supremacy of 
 federal over state law has been generally and broadly asserted. 
 
 The general statement may be made that, since the beginning 
 of our present Government, in no instance has the federal Su- 
 preme Court failed to assert the supremacy of the federal power 
 when its authority has been attacked by the States. In 1793 
 
 the court upheld its right under the Constitution, as it then stood, 
 
 [78]
 
 THE SUPREMACY OF FEDERAL AUTHORITY. 79 
 
 to entertain a suit against the State of Georgia brought by a 
 citizen of another State. 1 The next year the court clearly inti- 
 mated that it would disregard a state law in conflict with a federal 
 treaty. 2 The supremacy of federal law was again asserted the 
 next year in Penhallow v. Doane, 3 and in 1796 in Ware v. 
 Hyltou. 4 In Oalder v. Bull 5 the doctrine was definitely asserted, 
 though its application was not found necessary, that a state law 
 in conflict with the federal Constitution would be disregarded. 
 In 1809, in United States v. Peters, 6 this action became neces- 
 sary and the doctrine was applied, Chief Justice Marshall 
 speaking for the unanimous court, saying : " If the legis- 
 latures of the several States may, at will, annul the judg- 
 ments of the courts of the United States, and destroy the 
 rights acquired under these judgments, the Constitution be- 
 comes itself a solemn mockery; and the nation is deprived 
 of the means of enforcing its laws by the instrumentality of its 
 own tribunals. So fatal a result must be deprecated by all, and 
 the people of Pennsylvania, as well as the citizens of every other 
 State, must feel a deep interest in resisting principles so de- 
 structive of the Union and in asserting consequences so fatal to 
 themselves. . . . The State of Pennsylvania can possess no 
 constitutional right to resist the legal process which may be 
 directed in this cause." " It will be readily conceived," the great 
 Chief Justice concludes, " that the order which this court is 
 enjoined to make by the high obligations of duty and of law, is 
 not made without extreme regret at the necessity which has 
 induced the application. But it is a solemn duty, and therefore 
 must be performed. A peremptory mandamus must be awarded." 
 In 1810 and 1812 state laws were again held void by the 
 Supreme Court because in conflict with the federal Constitution. 7 
 
 iChi?holm v. Georgia, 2 Ball. 419; 1 L. ed. 440. 
 2 Georgia v. Brailsford, 3 Ball. 1 ; 1 L. ed. 483. 
 33 Ball. 54; 1 L. ed. 507. 
 <3 Ball. 199; 1 L. ed. 568. 
 53 Ball. 386; 1 L. ed. 048. 
 65 Cr. 115; 3 L. ed. 53. 
 
 7 Fletcher v. Peck (6 Cr. 87; 3 L. ed. 162) ; New Jersey v. Wilson (7 Cr. 
 164; 3 L. ed. 303).
 
 80 UNITED STATES CONSTITUTIONAL LAW. 
 
 Finally in the great case of McCulloch v. Maryland, 8 decided in 
 1819, not only was a state law held void, but the general doc- 
 trine declared that the State cannot, in the exercise of its 
 reserved powers, even of the highest of them, interfere with 
 the operation of a federal agency even though that agency be 
 one of convenience and not of necessity to the United 
 States. " The States have no power," it was declared, " by taxa- 
 tion or otherwise, to retard, impede, burden, or in any manner 
 control the operations of the constitutional laws enacted by Con- 
 gress to carry into execution the powers vested in the Federal 
 Government, This is, we think, the unavoidable consequence of 
 that supremacy which the Constitution has declared." 
 
 In Martin v. Hunter's Lessee, 9 decided in 1816, and in Cohens 
 T. Virginia, 10 decided in 1821, the Supreme Court upheld its au- 
 thority to review, on writs of error, decisions of state courts ad- 
 verse to alleged federal rights, the exercise of this jurisdiction 
 having been provided for by the famous twenty-fifth section of the 
 Judiciary Act of 1789. Justice Story who spoke for the court 
 said : " The courts of the United States can, without question, 
 revise the proceedings of the executive and legislative authorities 
 of the States, and if they are found to be contrary to the Consti- 
 tution 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." 
 
 In Cohens v. Virginia, 11 Chief Justice Marshall, speaking for 
 the court, said: " If it could be doubted, whether from 
 its nature it [the National Government] 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 
 authority of the United States, shall be the supreme law of the 
 land; and the judges in every State shall be bound thereby, any- 
 
 s 4 Wh. 316 ; 4 L. ed. 579. 
 1 Wh. 304 ; 4 L. ed. 97. 
 6 Wh. 264 ; 6 L. d. 267. 
 U6 Wh. 264; 5 L. ed. 257.
 
 THE SUPREMACY OF FEDEEAL AUTHOBITY. 81 
 
 tiling in the Constitution or laws of any State to the contrary 
 notwithstanding.' This is the authoritative language of the 
 American people, and, if the gentlemen please, of the American 
 States. . . . The people made the Constitution and the people 
 can unmake it ... But this supreme and irresistible power 
 to make or to unmake resides only in the whole body of the 
 people; not in any subdivision of them. The attempt of any of 
 the parts to exercise it is usurpation, and ought to be repelled by 
 those to whom the people have delegated the power of repelling 
 it. ... The framers of the Constitution were indeed unable 
 to make any provisions which should protect that instrument 
 against a general combination of the States, or of the people for 
 its destruction; and, conscious of this inability, they have not 
 made the attempt. But they were able to provide against the 
 operation of measures adopted in any one State, whose tendency 
 might be to arrest the execution of the laws; and this it was the 
 part of wisdom to attempt. We think they have attempted it." 
 The importance of the doctrine that was emphatically declared 
 in these two cases it is impossible to exaggerate. This the uphold- 
 ers of States' Rights clearly saw. Thus Calhoim later wrote: 12 
 " The effect of this is to make the government of the United States 
 the sole judge, in the last resort, as to the extent of its powers, and 
 to place the States and their separate governments and institu- 
 tions at its mercy. It would be a waste of time to undertake to 
 show that an assumption that would destroy the relation of 
 co-ordinates between the government of the United States and 
 those of the several States, which would enable the former, at 
 pleasure, to absorb the reserved powers and to destroy the insti- 
 tutions, social and political, which the Constitution was ordained 
 to establish and protect, is wholly inconsistent with the federal 
 theory of government, though in perfect accordance with the 
 national theory. Indeed, I might go further and assert, that it 
 is, of itself, all sufficient to convert it into a national, consoli- 
 dated government." 
 
 12 Discourse on the Constitution and Gorernmcnt of the United States. 
 Works, I, 338. 
 6
 
 82 UNITED STATES CONSTITUTIONAL LAW. 
 
 During the same year that the case of McCulloch v. Maryland 
 was decided, two other state laws were held void by the Supreme 
 Court, one of New York, in Sturges v. Crowinshield, 13 and one of 
 New Hampshire in Dartmouth College v. Woodward. 14 
 
 In 182-i, in Osborn v. Bank of the United States 15 the attempt 
 of Ohio to tax the federal bank was declared unconstitutional. In 
 1829, in Weston v. Charleston, 16 a municipal tax on stock of the 
 United States held by citizens of the city of Charleston was held 
 invalid. In 1824, in the case of Gibbons v. Ogden, 17 was begun 
 that long line of decisions which has established the power of the 
 United States to regulate interstate commerce free from state in- 
 terference an authority the exercise of which has done so much 
 to increase the actual power and influence of the National Govern- 
 ment. In this case a law of the State of New York was held 
 void. 
 
 In 1823, a law of Kentucky was held of no force by the federal 
 court, 18 and in 1830 a law of Missouri received similar treat- 
 ment. 19 In 1832 in Worcester v. Georgia, 20 an act of the State of 
 Georgia was held void, but the Supreme Court failed to secure the 
 release of the plaintiff who had been imprisoned under it. This 
 failure was due, however, not to the weakness on part of the 
 Federal Government but to the refusal of the President to lend his 
 executive aid. 
 
 From 1835 to the outbreak of the Civil War there can be no 
 question but that the Supreme Court of the United States exerted 
 a much less potent influence in solidifying and expanding the 
 federal power than it had exercised during the thirty-five years 
 preceding. During the two terms of office of Jackson, five vacan- 
 cies occurred in the Supreme Court, among them that of the 
 
 "4 Wh. 122; 4 L. ed. 529. 
 
 "4 Wh. 518; 4 L. ed. 629. 
 
 is 9 Wh. 738 ; 6 L. ed. 204. 
 
 i 2 Pet. 449 ; 7 L. ed. 481. 
 
 "9 Wh. 1; 6 L. ed. 23. 
 
 is Green v. Biddle (8 Wh. 1 ; 5 L. ed. 547). 
 
 "Craig v. Missouri (4 Pet. 410; 7 L. ed. 903). 
 
 206 Pet. 515; 8 L. ed. 483.
 
 THE SUPREMACY OF FEDERAL AUTHORITY. S3 
 
 Chief-Justiceship to which Taney was appointed in 1835. The 
 effect of the new appointments upon the views of the court was 
 shown almost immediately. In the case of Briscoe v. Bank of 
 Kentucky, 21 which had been argued just before the death of Mar- 
 shall, the issue by the bank of bills of credit had been held uncon- 
 stitutional. A rehearing being granted and the case coming on 
 for argument under Taney, the action of the bank was sustained 
 and the previous decision reversed. The decision marked the be- 
 ginning of a new era in the history of constitutional interpreta- 
 tion. Up to this time the court had, upon all possible occasions, 
 upheld the General Government in the exercise of its powers, and 
 had held the States strictly to the obligations imposed upon them 
 by the Constitution. Xow, however, it began if anything to lean 
 the other way. In Briscoe v. Bank of Kentucky, departing from 
 its former practice, by an extremely loose interpretation of a con- 
 stitutional limitation that had been laid upon the States, it ren- 
 dered practically nugatory one of the provisions of the Constitu- 
 tion. Other decisions similarly favorable to States' Rights fol- 
 lowed. In the case of City of New York v. Miln, 22 a state law was 
 sustained which might easily have been held an interference with 
 the federal control of interstate commerce. In the Charles River 
 Bridge Co. v. Warren Bridge Co. 23 a doubtful state law was again 
 upheld. In the License Cases 24 interpretations of the Commerce 
 Clause favorable to the States were given. In Kentucky v. Denni- 
 son 25 it was held that though the federal Constitution made it a 
 duty of a State to surrender to another State a fugitive from 
 justice from that State, there was no constitutional means by 
 which the Federal Government could compel the performance of 
 that duty. In all these cases the States were favored at the 
 expense of the authority of the General Government. 
 
 In 1841, in Prigg v. Pennsylvania, 20 a state law attempting the 
 regulation of the return of fugitive slaves was held unconstitu- 
 
 2111 Pet. 257; 9 L. ed. 709. 
 2311 Pet. 102; 9 L. ed. 648. 
 2311 Pet. 420; 9 L. ed. 773. 
 245 How. 501; 12 L. ed. 256. 
 2524 How. 66: 16 L. ed. 717. 
 2616 Pet. 539; 10 L. ed. 1060.
 
 84 UNITED STATES CONSTITUTIONAL LAW. 
 
 tional and void on the ground tliat this subject was wholly with- 
 drawn from the control of the States. Taney, however, though 
 concurring with the majority in holding unconstitutional the par- 
 ticular law in question, took pains to assert that there was no con- 
 stitutional incompetence 011 the part of the State to pass laws the 
 intention and actual effect of which were to "assist the Federal 
 Government in the capturing and returning of fleeing negroes. 
 
 Regarding the attitude of the Supreme Court during this 
 period, the important fact is to be noticed that, though it threw 
 the weight of its influence upon the side of the States so far as 
 concerned a liberal interpretation of the powers reserved to them 
 by the Constitution, not once, in the slightest measure, did it dur- 
 ing these years, any more than it had done in the years preceding, 
 intimate that the actual legal and political supremacy was not 
 vested in the National Government. The position of Taney and 
 of the court upon this point was clearly shown in the judgment 
 rendered and in the opinion delivered in the case of Ableman v. 
 Booth, 27 decided in 1859. The facts of this case were these : Booth 
 had been tried in a lower federal court for a violation of the 
 federal fugitive slave law of 1850, and had been found guilty and 
 sentenced to imprisonment. The highest court of the State of 
 Wisconsin, however, stepped in, disregarded this judgment and re- 
 leased the prisoner. Not only this but it went on to declare that 
 its decision, thus rendered, was subject to no appeal and was con- 
 clusive upon all the courts of the United States ; and when a writ 
 of error from the United States Supreme Court directed to the 
 Wisconsin court was issued, J;he clerk of the state court replied 
 to it that he had been directed to make no return, and refused 
 to make up and send a record of the case to the federal court. 
 Thereupon the Attorney-General of the United States filed in 
 the Supreme Court of the United States an uncertified record 
 which it was ordered should be received as though returned by 
 the clerk of the Wisconsin court. Having thus gotten the case 
 before it, despite the resistance of the State, the decision of the 
 
 2721 How. 506; 16 L. ed. 169.
 
 THE SUPREMACY OF FEDEEAL AUTHORITY. 85 
 
 Supreme Court thereupon was aii emphatic condemnation of the 
 State's action. "^so State, judge or court,*' declared Tanej 
 who rendered the opinion of the court, " after they are judicially 
 informed that the party is imprisoned under the authority of the 
 United States, has any right to interfere with him, or require him 
 to be brought before them. And if the authority of the State, in 
 form of judicial process or otherwise, should attempt to control 
 the marshal or other authorized officer or agent of the United 
 States, in any respect, in the custody of his prisoner, it would be 
 his duty to resist it, and to call to his aid any force that might be 
 necessary to maintain the authority of law against illegal inter- 
 ference." 
 
 From the foregoing brief review it is thus seen that prior to 
 the Civil War the supremacy of the federal law had been sus- 
 tained under a wide variety of circumstances and that the result- 
 ing subordinate status of the States had been made fully evident. 
 That status the people of certain of the Southern States in 1861 
 decided no longer to support, and in defense of their views, de- 
 clared their respective commonwealths independent of the Union, 
 and in support of this independence resorted to the arbitrament 
 of war. That this secession was an illegal act, and that, therefore 
 the seceding States, from the constitutional viewpoint, never 
 were out of the Union, has repeatedly been declared by the 
 Supreme Court. In Texas v. White 28 the Union was de- 
 clared to be " an indestructible Union composed of inde- 
 structible States." The opinion continues : " When, there- 
 fore, Texas became one of the United States, she entered into an 
 indissoluble relation. . . . The act which consummated her 
 admission into the Union was something more than a compact; 
 it was the incorporation of a new member into the political body. 
 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 the consent of the States. 
 Considered, therefore, as transactions under the Constitution, the 
 
 287 Wall. 700; 19 L. ed. 227.
 
 86 UNITED STATES CONSTITUTIONAL LAW. 
 
 ordinance of secession, adopted by the convention and ratified by 
 a majority of the citizens of Texas, and all the acts of her legis- 
 lature intended to give effect to that ordinance, were absolutely 
 null. They were utterly without operation in law. The obliga- 
 tions of the State, as a member of the Union, and of every citizen 
 of the State, as a citizen of the United States, remained perfect 
 and unimpaired. It certainly follows that the State did not cease 
 to be a State, nor her citizens to be citizens of the Union." 
 
 In Knox v. Lee 29 the court said, speaking through the mouth 
 of Justice Bradley : l< The doctrine so long contended for, that 
 the federal Union was a mere compact of States, and that the 
 States, if they chose, might annul and disregard the acts of the 
 national legislature, or might secede from the Union at their 
 pleasure, and that the General Government had no power to coerce 
 them into submission to the Constitution, should be regarded as 
 definitely and forever overthrown. This has been finally affected 
 by the national power, as it had often been before by overwhelm- 
 ing argument. . . . The United States is not only a govern- 
 ment, but it is a National Government, and the only government 
 in this country that has the character of nationality." 
 
 43. The States May Not Be Coerced. 
 
 In a Confederacy which is, in effect, a league of completely 
 sovereign States, such coercion as it may be necessary for the 
 central power to apply, may in certain cases be directed directly 
 against the States as such. 
 
 In a Federal State such as the United States is now agreed to 
 be, the supremacy of the national authority is never maintained 
 by direct action against its member Commonwealths, but is ex- 
 hibited in its authority to execute its will upon all persons subject 
 to its jurisdiction, anything in the Constitution or laws of any 
 State to the contrary notwithstanding, and irrespective of what 
 may be the opinions and effects of those exercising the political 
 powers of those States. 
 
 212 Wall. 457; 20 L. ed. 287.
 
 THE SUPEEMACY OF FEDERAL AUTHORITY. 87 
 
 The individual Commonwealths, having a political status only 
 as members of the Union, have not the legal power to place them- 
 selves, as political bodies, in opposition to the national will. Their 
 legislatures, their courts, or their executive officials may attempt 
 acts unwarranted by the federal Constitution or federal law, and 
 they may even command that their citizens generally shall refuse 
 obedience to some specified federal laws or the federal authorities 
 generally, but in all such cases, such acts are, legally viewed, 
 simply void, and all individuals obeying them subject to punish- 
 ment as offenders against national law. The fact that their re- 
 spective States have directed them to refuse obedience or to offer 
 resistance to the execution of the federal laws can afford them 
 no immunity from punishment, for no one can shelter himself 
 behind an unconstitutional law, such a law being, in truth, as 
 we have seen, not a law at all, but only an unsuccessful attempt 
 at a law. 
 
 Thus President Lincoln, in his first inaugural message, as- 
 sumed the correct constitutional position when he declared that 
 the Federal Government could not wage public war against a 
 State, not, however, because of a lack of constitutional authority 
 to maintain in every respect its supremacy, but because from the 
 very nature of the Union a State, qua State, ould not place itself 
 in a position where coercion could be applied to it. After an argu- 
 ment tending to show the sovereign character of the Union, and 
 that, it was intended to be perpetual, he declared : " It follows 
 from these views that no State upon its own mere motion can law- 
 fully get out of the Union ; that resolres and ordinances to that 
 effect are legally void, and that acts of violence within any State 
 or States against the authority of the United States are insur- 
 rectionary or revolutionary, according to circumstances. 1 
 therefore consider that, in view of the Constitution and the laws, 
 the Union is unbroken, and to the extent of my ability I shall 
 take care, as the Constitution itself expressly enjoins upon me, 
 that the laws of the Union be faithfully executed in all the States. 
 . . . In doing this there needs to be no bloodshed or violence, 
 and there shall be none unless it be forced upon the national au-
 
 88 UNITED STATES CONSTITUTIONAL LAW. 
 
 thority. The power conferred upon me will be used to hold, 
 occupy and possess the property and places belonging to the Gov- 
 ernment and to collect the duty and imposts; but beyond what 
 may be necessary for these objects, there will be no invasion, no 
 using of force against or among the people anywhere.'' 
 
 In taking this position Lincoln had to treat the war when it 
 began as merely an insurrection in which the coercion and punish- 
 ments were to be applied to individuals. Thus he began his 
 Proclamation of April 15, 1861, in which he called for seventy- 
 five thousand of the militia of the States, by saying: "Whereas 
 the laws of the United States have been for some time past and 
 now are opposed and the execution thereof obstructed in the 
 States of South Carolina, Georgia, Alabama, Florida, Mississippi, 
 Louisiana and Texas, by combinations too powerful to be sup- 
 pressed by the ordinary course of judicial proceedings:" and 
 closed by commanding " the persons composing the combinations 
 aforesaid to disperse and retire peaceably to their respective abodes 
 within twenty days from this date." 
 
 As further showing the theory as to the nature of the contest 
 that was held by the National Government is the fact that Con- 
 gress did not " declare war " against the South, or, when the 
 struggle was over, dhter into a treaty of peace wnth the Southern 
 Confederacy. The L^nited States did not recognize that .the Con- 
 federacy had or could have a standing as a political power with 
 which it might deal as with a foreign -State. One after another, 
 the surrender of his forces by each Confederate general was ac- 
 cepted as an act of war and thus the Confederacy left to collapse 
 and disappear without any formal, official act to mark its demise. 
 The possession by the Federal Government of full power to 
 protect any right and to enforce any law of its own at any time, 
 and at any place within its territorial limits, any resistance of 
 private individuals, or state officials, acting with or without the 
 authority of state law to the contrary notwithstanding, has been 
 uniformly asserted by the Supreme Court whenever such an as- 
 sertion has been necessary. Thus in 1824, in the case of 
 Osborn v. Bank of the United States, 30 Chief Justice Mar- 
 so 9 Wh. 738; 6 L. ed. 204.
 
 THE SUPREMACY OF FEDERAL AUTHORITY. 89 
 
 shall met the argument that the suit, being against one 
 of its officials and based upon acts committed by him in his 
 official capacity, was in fact a suit against the State of Ohio, one, 
 therefore, which, under the Eleventh Amendment, the court was 
 without authority to try, by declaring: ''A denial of jurisdiction 
 forbids all inquiry into the nature of the case. It applies to all 
 cases perfectly clear in themselves; to cases where the [Xational] 
 Government is in the exercise of its best established and most 
 utial powers, as well as to those which may be deemed ques- 
 tionable. It asserts that the agents of a State, alleging the au- 
 thority of a law, void in itself, because repugnant to the Constitu- 
 tion, may arrest the execution of any law of the United States. 
 It maintains that if a State shall impose a fine or penalty on any 
 ] id-son employed in the execution of any law in the United States, 
 it may levy that fine or penalty by a ministerial officer, without 
 the sanction of even its own courts; and that the individual, 
 though he perceives the approaching danger, can obtain no .pro- 
 tection from the judicial department of the [National] Govern- 
 ment. . . . The question, then, is whether the Constitution 
 of the United States has provided a tribunal which can peace- 
 fully and rightfully protect those who are employed in carrying 
 into execution the laws of the Union from the attempts of a 
 particular State to resist the execution of those laws." That 
 ^Mar-hall answered this question in the affirmative needs not be 
 said. 
 
 The attitude of the federal Supreme Court in the case of Able- 
 man v. Booth, decided in 1859, has already been mentioned. 
 Aiiam, jit'td- the Civil War, the court said, when confronted by 
 the proposition that because the United States was without any 
 general criminal jurisdiction it might not punish criminally 
 individuals who had violated certain of its laws relating to con- 
 gressional elections : " It is argued that the .preservation of peace 
 and good order in society 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 govern- 
 ment of the United States does not rest upon the soil and terri-
 
 90 UNITED STATES CONSTITUTIONAL, LAW. 
 
 tory of the country. We think that this theory is founded on an 
 entire misconception of the nature and power 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 in- 
 volves the power to command obedience to its laws, and hence 
 the power to keep the peace to that extent." 31 
 
 Finally in the Debs case, 32 a case growing out of the great 
 railway strike of 1894, the plenitude of the federal power was 
 emphatically stated. Speaking of the right of the National Gov- 
 ernment to protect, by armed force if necessary, interstate com- 
 merce and the transportation of the mails, the court said : " If 
 the inhabitants of a single State or a great body of them should 
 combine to obstruct interstate commerce or the transportation of 
 the mails, prosecution of 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 freedom 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 a single State. 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 the land the full and free exercise 
 of all national powers and the security of all rights intrusted by 
 the Constitution to its care. The strong arm of the National 
 
 si Ex parte Siebold ( 100 U. S. 371 ; 25 L. ed. 717) . In United States v. Reese 
 (92 U. S. 214; 23 L. ed. 563), 1875, the court said: " Rights and immunities 
 created by or dependent upon the Constitution 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 pro- 
 vide. These may be varied to meet the necessities of the particular right to be 
 protected." And in Strauder v. West Virginia (100 U. S. 303; 25 L. ed. G64), 
 the court said: "A right or an immunity, whether created by the Constitu- 
 tion, or only guaranteed by it, even without any express delegation of power, 
 may be protected by Congress." 
 
 32 In re Debs (158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092).
 
 THE SUPREMACY OF FEDERAL AUTHORITY. 91 
 
 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 Xation and all 
 its militia are at the service of the Xation to compel obedience to 
 its laws/'' 
 
 44. Conclusion. 
 
 The foregoing cases sufficiently illustrate the general principle 
 of the supremacy of the federal law. The maintenance of this 
 principle, by the exemption of federal agencies from state in- 
 terference by taxation, by means of federal writs of habeas corpus 
 and of injunction to state authorities, and by the removal of suits 
 from state to federal courts, will be discussed in the next succeed- 
 ing chapters.
 
 CHAPTER V. 
 
 THE MAINTENANCE OF FEDERAL SUPREMACY THE FREEDOM OF 
 FEDERAL AGENCIES FROM INTERFERENCE OR CONTROL BY THE 
 STATES. 
 
 45. State Taxation of Federal Governmental Agencies. 
 
 The successful maintenance of a federal government, under any 
 circumstances a most difficult task, is an especially difficult one 
 in the United States where federal functions are exclusively per- 
 formed by federal agents and organs, and state functions by state 
 agents and organs. 1 This has necessitated the maintenance of a 
 complete machinery of government for the United States, and, 
 similarly, a complete political organization for each of the member 
 States of the Union. This arrangement carries with it the general 
 doctrine that the States may not in any wise interfere with the 
 operation of a federal organ or with the exercise by a fed- 
 eral agent of his official functions; and that, conversely, the 
 Federal Government may not interfere with the operation of 
 a state agency or the official actions of state officials when 
 acting within the constitutional limits reserved to the States. 
 Illustrations of these general principles will appear throughout 
 this treatise. Their scope and significance may, however, be best 
 exhibited in their application to the federal and state taxing 
 power, and to a discussion of this especial phase of the subject 
 this and the next succeeding paragraphs will be devoted. 
 
 That a State may not, in the exercise of its reserved powers, 
 interfere with a federal governmental agency was settled once 
 for all by the decision of the Supreme Court in McCullocb v. 
 
 i It has indeed been held that the United States may permit or even request 
 a state official to perform a federal service, but there is no constitutional 
 means by which such state official may, without the consent of his State, be 
 compelled to do so. The same is true as to the performance by a federal 
 official of a state duty. The reason for this rule is the obvious one that 
 otherwise it would be possible for one government to so burden with its own 
 duties the officials of the other government as seriously to interfere with the 
 performance by those officials of the duties laid upon them by their own 
 governments. 
 
 [92]
 
 THE MAINTENANCE or FEDEKAL STPKEMACY. 
 
 liar viand. This case was all the stronger in that the federal 
 agency, with whose activity it was alleged that Maryland had at- 
 tempted to interfere by taxing it, was an agency neither essential 
 to the Xatioual Government nor expressly provided for by the 
 Constitution. The power to establish a Xational Bank was at 
 most only an implied one, and, in fact, its constitutionality was 
 very widely denied, and, years after this, a bill providing for the 
 establishment by the Xatioual Government of a similar institution 
 was vetoed by President Jackson upon the ground of its unconsti- 
 tutionality. But in this case Maryland had not only denied the 
 constitutionality of the bank but took the position that, even were 
 it constitutional, she had, under the general power reserved to 
 her of taxing all occupations carried on within her territorial 
 limits, the right to tax such branches of the bank as might be 
 located within her borders. Thus, in this case, the State of Mary- 
 land did not claim that she might directly and deliberately in- 
 terfere with the operation of a federal law, but that the exercise 
 by her of an otherwise legitimate authority could not be declared 
 unconstitutional simply upon the ground that, indirectly, or by re- 
 mote possibility, its eft'ect was, or might be, to interfere with the 
 exercise of a legitimate federal power. In other words, the State 
 took the ground that, while acting within their reserved spheres 
 of authority, the States were as independent and sovereign as was 
 the Union while operating within its constitutional sphere; and 
 that, therefore, their direct interests, within such spheres, might 
 not properly be subordinated to the merely indirect interests of 
 the Union. This position the Supreme .Court declared an invalid 
 one. The reasoning of Marshall, who rendered the opinion, was 
 as follows: " The sovereignty of a State,' 1 he declared,, li extends 
 to everything which exists by its own authority, or is introduced 
 by its permission ; but does it extend to those means which are em- 
 ployed by C'onuTo. to carry into execution powers conferred on 
 that body by the people of the United States * We think it demon- 
 strable that it does not. These powers are not given by the people 
 of a single State. They :nv -ivon by the people of the United 
 States to a government whose laws, made iii pursuance of the Con-
 
 94 UNITED STATES CONSTITUTIONAL LAW. 
 
 stitution, are declared to be supreme." Then, after referring to 
 the fact that the power to tax might be used to destroy, he con- 
 tinued : " That there is a plain repugnance in conferring on one 
 government power to control the constitutional measures of an- 
 other, which other with respect to those very measures is declared 
 supreme over that which exerts the control ... [is a] propo- 
 sition not to be denied. ... If the States may tax one in- 
 strument employed by the government in the execution of its pow- 
 ers, they may tax any and every 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; they may tax judicial 
 processes; they may tax all the means employed by the govern- 
 ment to an excess which would defeat all the ends of government. 
 This was not intended by the American people. They did not de- 
 sign to make their government dependent on the American States. 
 . . . The Court has bestowed on this subject its most deliber- 
 ate consideration. 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 
 consequences of that supremacy which the Constitution has de- 
 clared." 
 
 In Osborn v. Bank of the United States, 2 decided in 
 1824, the question of the power of a State to tax the Bank 
 of the United States was reopened by the (State of Ohio, and 
 a strenuous attempt made to have the Supreme Court of the 
 United States modify the views it had expressed in McCulloch 
 v. Maryland. The argument was urged that a distinction should 
 be made between the bank as a fiscal agent of the government and 
 as a private company trading with individuals for its own ad- 
 vantage ;, and that so far as it existed and operated in this latter 
 capacity it might be taxed and otherwise regulated by the States. 
 The Supreme Court held, however, that in practice the distinction 
 had no existence. " To tax its faculties, its trade, and occupa- 
 tion," it declared, " is to tax the bank itself. To destroy or pre- 
 
 29 Wli. 738; 6 L. ed. 204.
 
 THE MAIXTEXAXCE OF FEDERAL SUPKEMACY. 95 
 
 serve the one is to destroy or preserve the other." The opinion 
 continues: " The bank is not considered as a private corporation r 
 whose principal object is individual trade and individual profit, 
 but as a public corporation, created for public and national pur- 
 poses. That the mere business of banking is, in its own nature, a 
 private business, and may be carried on by individuals or com- 
 panies having no political connection with the government, is 
 admitted ; but the bank is not such an individual or company. 
 It was not created for its own sake, or for private purposes. It 
 has never been supposed that Congress could create such a cor- 
 poration. . . . The operations of the bank are believed 
 not only to yield the compensation for its services to the govern- 
 ment, but to be essential to the performance of those services. 
 Those operations give its value to the currency in which all the 
 transactions of the government are conducted. They are, there- 
 fore, inseparably connected with those transactions. They enable 
 the bank to render those services to the nation for which it was 
 created, and are, therefore, of the very essence of its character, as 
 national instruments. The business of the bank constitutes its 
 capacity to perform its functions, as a machine for the money 
 transactions of the government Its corporate character is merely 
 an incident, which enables it to transact the business more benefic- 
 ially. . . . Considering the capacity of carrying on the 
 trade of banking, as an important feature in the character of this 
 corporation, which was necessary to make it a fit instrument for 
 the objects for which it was created, the court adheres to its de- 
 cision in the case of McCulloch v. The State of Maryland, and is 
 of opinion that the act of the State of Ohio, which is certainly 
 much more objectionable than that of the State of Maryland, is re- 
 pugnant to a law of the 1'nited States made in pursuance of the 
 Constitution, and, therefore, void." 
 
 16. Property of Federal Agencies may be Taxed. 
 
 In McCulloch v. Maryland and Osborn v. Bank of Ohio the 
 States had attempted to levy a tax, in the nature of a franchise
 
 96 UXITED STATES CONSTITUTIONAL LAW. 
 
 tax, upon the operations of the federal bank. In the Maryland 
 case Chief Justice Marshall said : '' The opinion does not deprive 
 the State of any resources which the}' originally possessed. It 
 does not extend to a tax paid lyy 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." 
 
 This dictum of Marshall received judicial -application in 
 Thomson v. Union Pacific K. Co., 3 in which it was held 
 that, in the absence of any legislation of Congress directing 
 otherwise, the property of a railroad company, chartered by 
 a State, but performing federal services, might be taxed by 
 the State. Chief Justice Chase, speaking for a unanimous 
 court, said. " We do not think ourselves warranted in ex- 
 tending the exemption [from state taxation] established by the 
 case of McCulloch v. Maryland beyond its terms. We cannot 
 apply it to the case of a corporation deriving its existence from 
 state law, exercising its franchise under state law, and holding 
 the property within state jurisdiction and under state protection. 
 . . . We think there is a clear distinction between the 
 means Employed by the government and the property of agenty 
 employed by the government. Taxation of the agency is taxation 
 of the means, taxation of the property of the agent is not always, 
 or generally, taxation of the means. Xo one questions that the 
 power to tax all property, business and persons, within their re- 
 spective limits, is original in the States and has never been sur- 
 rendered. It cannot be so used, indeed, as to defeat or hinder 
 the operations of the National Government ; but it will be safe to 
 conclude, in general, in reference to persons and state corpora- 
 tions employee! in government service, that when Congress has not 
 interposed to protect their property from state taxation, such 
 taxation is not obnoxious to that objection." 4 
 
 39 Wall. 579; in L. erl. 702. 
 
 < The objection to pnstainiiifr the principle that the property of corporations 
 performing federal services is by that fact exempt from state taxation, is 
 stated by the court as follows: "We perceive no limits to the principle of
 
 THE .MAINTENANCE OF FEDERAL SUPREMACY. 97 
 
 In Thomson v. Union Pacific R. Co. the railroad company con- 
 cerned, although performing federal services, was chartered by 
 the State. In Union Pacific It. C'o. v. Penistou, 5 the same 
 doctrine was applied lo a company chartered by Con- 
 gress. This fact, it was held, did take the case out of the 
 rule laid down in earlier case. " We do not perceive,'' the court 
 declared, " that this presents any reason ior the application of 
 a rule different from that which was applied in the former case. 
 . . . The United States have no more ownership of the 
 road authorized by Congress than they had in the road authorized 
 by Kansas." ' It is manifest," the court continues, " that -exemp- 
 tion of federal agencies from state taxation is dependent, not 
 upon the nature of the agents, or upon the mode of their constitu- 
 tion, or upon the fact that they are agents, but upon the effect of 
 the tax ; that is, upon the question whether the tax does in truth 
 deprive them of power to serve the government as they were in- 
 tended to serve it, or does hinder the efficient exercise of their 
 power. A tax upon their property has no such necessary effect. 
 It leaves them free to discharge the duties they hare undertaken 
 to perform. A tax upon their operations is a direct obstruction 
 to the exercise of federal powers/' 
 
 In Owensboro National Bank T. City of Owensboro 6 it was held 
 that the property of national banks, organized under a federal 
 statute, is absolutely exempt from state taxation except in so far as 
 Congress has expressly waive;! this immunity. This doctrine would 
 be in opposition to that declared in Tnion Pacific HI. Co. v. Penis- 
 
 exeniption which the complainants seek to establish. It would remove from 
 the reach of state taxation all the property of every agent of the government. 
 v corporation engaged in tlie traiisportatii'n of mails, or of government 
 property of any description, by land or water, or in supplying materials for 
 the use of the government, or in performing any service of whatever kind, 
 might claim the benefit of the exemption. ... It may admit of question 
 whether the whole income of the property which will remain liable to state 
 taxation, if the principle contended for is admitted and applied in it< fullest 
 extent, nuiv not ultimately be found inadequate to the -upport of UK? state 
 governments." 
 
 5 IS Wall. 5: 21 L. ed. 7-7. 
 
 6 173 U. S. nr,4; 19 Sup. Ct. Rep. 537; 43 L. ed. 850. 
 
 7
 
 98 UNITED STATES CONSTITUTIONAL LAW. 
 
 ton but for the distinction between the national banks as, in them- 
 selves, governmental instrumentalities of the United States, and 
 the railroads which are primarily private enterprises, but per- 
 forming inter alia federal services. In Davis v. Bank 7 the 
 court had said : " National Banks are instrumentalities of 
 the Federal Government, created for a public purpose, and as 
 such necessarily subject to the permanent authority of the 
 United States. It follows that an attempt by a State to define 
 their duties, or control the conduct of their affairs is absolutely 
 void, whenever such attempted exercise of authority expressly 
 conflicts with the laws of the United States, and either frustrates 
 the purpose of the national legislation or impairs the efficiency 
 of these agencies of the Federal Government to discharge the 
 duties for the performance of which they were created." " It 
 follows, then, necessarily from these conclusions," the court say in 
 the Owensboro case, " that the respective States would be wholly 
 without power to levy any tax, either direct or indirect, upon the 
 national banks, their property, assets or franchises, were it not for 
 the permissive legislation of Congress." 
 
 In National Bank v. Commonwealth 8 the Supreme 
 Court again resisted a claim attempted to be made un- 
 der the authority of the doctrine of McCulloch v. Mary- 
 land, that the banks as governmental agencies are wholly exempt 
 from the control of state law even with reference to matters un- 
 connected with the services performed by them as federal agencies. 
 The court declared: "It certainly cannot be maintained that 
 banks or other corporations or instrumentalities of the govern- 
 ment are to be wholly withdrawn from the operation of state legis- 
 lation. The most important agents of the Federal Government 
 are its officers, but no one will contend that when a man becomes 
 an officer of the government he ceases to be subject to the laws of 
 the State. The principle we are discussing has its limitation, a 
 limitation growing out of the necessity on which the principle 
 itself is founded. The limitation is, that the agencies of the Fed- 
 
 7161 U. S. 275; 16 Sup. Ct. Rep. 502; 40 L. ed. 700. 
 9 Wall. 353; 19 L. ed. 701.
 
 THE MAINTENANCE OF FEDERAL SUPREMACY. 99 
 
 eral Government are only exempted from state legislation, so far 
 as the legislation may interfere with or impair their efficiency in 
 performing the functions by which they are designed to serve that 
 government. Any other rule would controvert a principle founded 
 alone in the necessity of securing to the government of the United 
 States the means of exercising its legitimate powers, into an un- 
 authorized and unjustifiable invasion of the rights of the States. 
 The salary of a federal officer may not be taxed ; he may be ex- 
 empted from any personal services which will interfere with the 
 discharge of his official duties, because those exemptions are 
 essential to enable him to perform those duties. But he is subject 
 to all the laws of the State which affect his family, or social rela- 
 tions, or his property, and he is liable to punishment for crime, 
 though that punishment be imprisonment or death. So' of the 
 [federal] banks. They are subject to the laws of the State, and 
 are governed in their daily course of business far more by the 
 laws of the State than of the Xation. All their contracts are 
 governed and construed by state laws. Their acquisition and 
 transfer of property, their right to collect their debts, and their 
 liability to be sued for debts, are all based on state law. It is only 
 when the State incapacitates the bank from discharging their 
 duties to the government that it becomes unconstitutional." 
 
 47. State Taxation of Federal Franchises. 
 
 A franchise to be or to act as a corporation granted by a State, 
 may be taxed by a State as a piece of intangible property. But 
 franchises or other rights derived from the Federal Government 
 may not be taxed by the States nor any hindrances placed by th 
 States upon their exercise. In California v. Central Pacific R. Co. 9 
 one of a series of cases dealing with the Pacific Railroads, the 
 court say: " These franchises were granted to the company for 
 national purposes and to subserve national ends. It seems very 
 clear that the State of California can neither take them away, nor 
 destroy, nor abridge them, nor cripple them by onerous burdens. 
 . . . Can it tax them ? It may undoubtedly tax outside visible 
 
 9 127 U. S. 1 ; 8 Sup. Ct. Rep. 1073; 32 L. ed. 150.
 
 100 UNITED STATES CONSTITUTIONAL LAW. 
 
 property of the company situated within tli State. That is a 
 different tiling. But may it tax franchises which are the grant of 
 the United States 2 In our judgment, it cannot." 
 
 48. State Taxation of Patent Rights. 
 
 In conformity with, the foregoing doctrine it has been held that 
 while the States may tax the capital employed in the manufacture 
 of copyrighted or patented articles, as well as the tangible property 
 embodied in these articles, they may not exact a fee as a 
 condition precedent to the exercise of these federally granted 
 rights, nor can they tax the intangible rights themselves as 
 property. 10 
 
 In Patterson -v. Kentucky 13 the court held that a state statute 
 regulating the inspection and gauging of oils was a mere police 
 regulation and did not violate a patent right under which a certain 
 oil was manufactured. A similar conclusion was reached in" Web- 
 ber v. Virginia. 12 In Allen v. Riley 13 was held valid a state law 
 which required one selling a patent right in any county in the 
 -State, to file with the clerk of such county an authenticated copy of 
 the letters patent, together with an affidavit of the genuineness of 
 the letters patent, and that any written obligation given for the 
 purchase price of a patent right should contain the words u given 
 for a patent right." These, it was held, were proper police require- 
 ments. The court say: "We think the State has the power (cer- 
 tainly until Congress legislates upon the subject) with regard to 
 the provision which shall accompany the sale or assignment of 
 rights arising under a patent, to make reasonable regulations con- 
 cerning the subject, calculated to protect its citizens from fraud. 
 
 10 Crown Cork and Seal Co. v. Maryland (87 Md. 687) ; People v. Assessors 
 (156 N. Y. 417) ; People v. Roberts (159 X. Y. 70). In these cases it is held 
 that if the tax is upon the corporate property, or even upon the shares of 
 tock evidencing that property, the value of the patent rights must ho deducted. 
 Jf, however, the tax be upon the shares of stock to the holders, or is upon the 
 franchise of the corporation, the fact that patent rights are included within 
 -the assets of the company is not material. Cf. Judson, Taxation, | 33. 
 
 iifi7 U. . -501 ; .24 L. d. 1115. 
 
 12 103 U. 6. 334 ; 26 L. ed. 565. 
 
 "203 U. S. 347; 27 Sup. Ct. Rep. 05; 51 L. ed. 216.
 
 THE MAIXTEXAX< i: OF FEDEKAL SUPREMACY. 101 
 
 . . . The act must be a reasonable and fair exercise of the 
 power of the State for the .purpose of cheeking a well-known evil, 
 and to prevent, so far as possible, fraud and imposition in regard 
 to the sales of rights under patents. Possibly Congress might en- 
 act a statute which would take away from the States- any power to 
 legislate upon the subject, but it has not as yet done so." 14 
 
 Of course 110 State may, in the exercise of its police or other 
 powers, in any way discriminate against patented articles. 15 
 
 49. State Taxation of Federally Licensed Occupations. 
 
 "Where, by federal license, an occupation has been authorized 
 by the United__States, enjoyment and employment of the license 
 may nut be restrained by a State. Thus in Moran v. Xew Orleans 16 
 was held void an. ordinance of the city of Xew Orleans imposing a 
 license tax cm certain vessels engaged in foreign commerce and 
 duly enrolled and licensed under act of Congress. The court say : 
 " The sole occupation sought to be subjected to the tax is that of 
 using and enjoying the license of the United States to employ these 
 particular vessels in the coasting trade; and the State thus seeks 
 to burden with an exaction, fixed at its own pleasure,, the very 
 right to which the plaintiff in error is entitled under and which 
 he derives from the constitution and laws of the United Srtates. 
 The Louisiana statute declares expressly that if he refuses or 
 neglects to pay the license tax imposed upon him, for using his 
 boat in this way, he shall not be permitted to act under and avail 
 himself of the license granted by the United States, but may be 
 enjoined from so doing by judicial process. The conflict between 
 the two authorities is direct and express. ... In such an 
 opposition, the only question is which is the superior authority; 
 and reduced to that it furnishes its own answer." 
 
 In Ilarman v. Chicago 17 this doctrine is approved and again 
 applied. 
 
 i*. Justices White and Day dissented. 
 
 isOznn Lnml>er Co. v. Union Co. Nat. Bank (14."> Fed. 344). 
 
 16112 U. S. 60: o Sup. ft, Rep. 38 -. 28 J.. ed. 053. 
 
 " 147 U. S. 396; 13 Sup. Ct. Rep. 306; 37 L. ed. 216.
 
 102 UNITED STATES CONSTITUTIONAL LAW. 
 
 50. State Taxation of Federal Salaries. 
 
 That the salary or other emoluments of office of federal officials 
 may "not be taxed by the States has not been questioned since the 
 doctrine was first declared in Dobbins v. Commissioners. 18 " The 
 powers of the National Government," the court say, " can only be 
 executed by officers whose services must be compensated by Con- 
 gress. The allowance is in its discretion. The presumption is 
 that the compensation given by law is no more than the services 
 are worth, and only such in amount as will secure from the 
 officer the diligent performance of his duties. . . . The 
 compensation of an officer of the United States is fixed by a law 
 made by Congress. It is in its exclusive discretion to determine 
 
 what shall be given Does not a tax, then, by a State 
 
 upon the office, diminishing the recompense, conflict with the law 
 of the United States, which secures it to the officer in its entire- 
 ness ? It certainly has such an effect*" 19 
 
 51. State Taxation of Federal Property. . 
 
 The principle that property belonging to the United States is 
 not taxable by the States in which it is situated did not receive 
 final judicial affirmation until 1-885 in Van Brocklin v. Tennes- 
 see. 20 Prior to this decision it had quite generally been taken for 
 granted that federal property was thus exempt from state taxation, 
 but in a number of cases Congress would seem to have implied that 
 it was not confident upon this point since it incorporated into en- 
 abling acts for the admission of territories into the Union as States, 
 the requirement that after admission the property of the United 
 
 1816 Pet. 435; 10 L. ed. 1022. 
 
 is It is probable that an act of Congress imposing a tax upon salaries of the 
 president and federal judges would be held void as in violation of the con- 
 stitutional provision that the compensation of these officials shall not be 
 diminished during the period for which they are elected or appointed. See 
 Sen. Mis. Doc., No. 214, 53rd Cong., 2nd Sess. 
 
 In W. U. Telegraph Co. v. Texas (105 U. S. 460; 26 L. ed. 1067) the court 
 held that a state tax upon telegraph messages could not be collected upon 
 messages sent by officers of the United States on public business. 
 
 20117 U. S. 1*1 j 6 Sup. Ct. Rep. 670; 29 L. ed. 845.
 
 THE MAHfTXHAircDB OF FEDERAL SUPREMACY. 103 
 
 States should be exempt from state taxation. The effect of the 
 decision in Van Brocklin v. Tennessee was, of course, to hold 
 that these provisions were declaratory merely, and, therefore, 
 superfluous. The fact that the lands concerned in this Tennessee 
 case were acquired by the United States through sales for direct 
 taxes levied by act of Congress and not expressly ceded by the 
 States, was held immaterial. 
 
 In Wisconsin C. R. Co. v. Price County 21 the doctrine of Van 
 Brocklin \*. Tennessee reappeared and was broadened so as to in- 
 clude taxation not only by the State but by any of its administra- 
 tive subdivisions. 22 
 
 52. State Taxation of Federal Securities. 
 
 United States securities, it has been held, may not be taxed 
 by the States for the reason that to admit this power would give 
 to the State the authority to impair the borrowing power of the 
 National Government. This was early decided in Weston v. 
 Charleston. 23 " The tax on government stock," said Marshall, 
 who rendered the opinion in the case, " 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." 
 
 Distinguishing such a state tax from one on land after it has 
 been sold by the Federal Government a tax which it was con- 
 ceded the States might lay Marshall said : " The lands pur- 
 
 21133 U. S. 406; 10 Sup. Ct. Hop. 341: 33 L. ed. 687. 
 
 22 " It is familiar law that a State has no power to tax property of the 
 United States within its limits. This exemption of their property from state 
 taxation and by state taxation we moan any taxation by authority of the 
 State, whether it be strictly for state purposes or for more local and special 
 objects is founded upon that principle which inheres in every independent 
 government, that it must be free from any such interference of another govern- 
 ment as may tend to destroy its powers or impair their efficiency." 
 
 As to the inability of the States to tax lands allotted in severally to the 
 Indians under the act of 1881, the improvements on them and the cattle or 
 other property furnished the allottees, see chapter XX of this work, and 
 especially the case of U. S. v. Reckert (188 U. S. 432; 23 Sup. Ct. Rep. 478; 
 47 L. ed. 532). 
 
 232 Pet. 449; 7 L. ed. 481.
 
 104 UXITED STATES CONSTITUTIONAL LAW. 
 
 chased become a part o the mass of property in the country with 
 no implied exemption from common burdens. AIL lands are de- 
 rived 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 between the bor- 
 rower and the lender is dissolved. It is no burden 011 loans, and 
 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 different 
 principles from a tax on lands which the government has sold." 
 
 In Banks v. The M,ayor 24 the attempt to make a distinction be- 
 tween the bonds of the government issued for loans of money and 
 certificates of indebtedness given in payment for supplies pur- 
 chased, and to hold the latter subject to taxation by the States, 
 was defeated bv the court. So also in Bank v. Supervisors 25 
 United States notes issued under the acts of 1862 and 1863 were 
 held exempt from state taxation. . 
 
 In Bank of Commerce v.. Commissioners 26 stock of the United 
 States constituting a part or the whole of the capital stock of a 
 state bank was held not subject to state taxation, the fact that the 
 tax was on the aggregate of the taxpayer's property and not upon 
 the stock by name being held immaterial. So also in the Bank 
 Tax Case 27 a state tax on a valuation equal to the amount of the 
 capital stock paid in, and surplus, of a state bank was held to be 
 a tax on the property of" the institution and, therefore, invalid, in 
 so far as that property consisted of stocks of the United States. 
 
 In Home Savings Bank v. Des Monies 28 it was held that a state 
 statute directing that shares of stock of state banks should bo 
 assessed to such banks, and not to individual shareholders, operated 
 as a tax on the property of the bank and, therefore, in so far as 
 
 247 Wall. 16; 19 L. ed. 57. 
 
 257 Wall. 26; 19 L. ed. 60. 
 
 26-2 Black, 620; 17 L. ed. 451. 
 
 272 Wall. 200; 17 L. ed. 703. 
 
 28205 U. S. 503; 27 Sup. Ct. Rep. 571; 51 L. eel. 901.
 
 THE HAIXTEXAXCE OF FEDERAL SUPREMACY. 105 
 
 such property represented federal securities, violated the im- 
 munity of suck securities from state taxation.-' 1 
 
 - In its opinion the court say: "We must inquire whether the law really 
 imposes a tax upon the shares of stock as- the property erf their owners, or 
 ineieiy ml pu the value of those share* as the measure of valuation of the 
 property of the corporation, and by that standard taxes that property itself. 
 The Jesuit of this inquiry is of vital importance, because there may be a tax 
 11 pon the shares of a corporation, which are property distinct from that owned 
 by the corporation, and with a different owner, without an allowance of the 
 exemption due to the property of the corporation itself, while, if the tax is 
 .upon the corporation's property, all exemptions due it must be allowed." 
 
 After reviewing Bank of Commerce v. Commissioners (2 Black. 620; 17 
 L. ed. 451) and Bank Tax Case (2. Wall. 200; 17 L. ed. 703) the opinion con- 
 tinues: "The case at bar cannot be distinguished in principle from these 
 -. In the first case the tax was on the capital stock at its actual value; 
 in the second case OH the amount of the capital stock and the surplus earn- 
 ini:-: and, in the case at bar, on the shares of the stock, taking into account 
 the capital, surplus, and undivided earnings. It would be difficult for the 
 most ingenious mind and the most accomplished pen to state any distinction 
 between these throe laws, except by the manner by which they all sought the 
 same end. the taxation of the property of the bank. The slight concealment 
 aifonlcd by t:;e < mis-inn of the property eo nomine is not sufficient to disguise 
 the fact that, in effect, it is tiie property which is taxed. If. included in that 
 ]>r> 1'iTty it is discovered that there is some which is entitled by federal right 
 to an immunity, it is the duty of this court to see that the immunity is 
 reepeeted." 
 
 Of the line of cases affirming, the doctrine of Van Allen v. Assessors- (3 Wall. 
 ."73: IS L. ed. 22!> i . the opinion declares: "There is nothing in them which 
 just; tit's the tax under consideration here, levied, as has been shown, on the 
 rate property. Without further review of the authorities it is safe to say 
 that the di-tinction established in the Van Allen case has always been 
 observed by this court, and that, although taxes by States have been permitted 
 which might indirectly affect United States securities, they have never been 
 permitted in any case except where the taxation has been levied upon property 
 which i- entirely distinct and independent from these securities. On the other 
 hand, whenever, as in t ! the tax has been upon the property of the 
 
 cr.rpi ration so far as that property has consisted of such securities, it has- 
 l.ivn held void. ... It is said that where a tax is levied upon a corporation, 
 measuied by the value of the shares in it. it is equivalent in its effect to a tax 
 (clearly valid) upnii the shareholders in respect of their shares, because, being 
 paid by the bank, the burden falls eventually upon the shareholders in pro- 
 poition to their holding*. It was upon this view that the lower court rested 
 'inion. Rut the two kinds of taxes are not equivalent in law. because the 
 State has the power to levy one. and has not the power to levy the other. 
 The question here is one of power, and not of economics. If the State has not 
 the power to levy this tax, we will not inquire whether another tax, which it
 
 106 UNITED STATES CONSTITUTIONAL LAW. 
 
 Where, however, the state tax may properly be held to be a 
 franchise tax upon the state institution, it has been held valid 
 notwithstanding the fact that United States stocks constitute a 
 part of the assets of the institution. " Nothing is more certain 
 in legal discussion," the court say in Society for Savings v. 
 Coite, 30 " that the privileges and franchises of a private corpora- 
 tion, all trades and avocations by which the citizens acquire 
 a livelihood, may be taxed by a State for the support of 
 the state government. Authority to that effect resides in 
 the State wholly independent of the Federal Government, and is 
 wholly unaffected by the fact that the corporation or individual 
 has or has not made investment in federal securities." 31 So also 
 in Home Insurance Co. v. New York 32 it was held that a state 
 statute imposing a tax upon the " corporate franchise or business " 
 of a company, and making reference to its capital stock and divi- 
 dends only for the purpose of determining the amount of the tax, 
 was not invalid as levying a tax on the capital stock or property 
 of the company, but upon its corporate franchise, and, therefore, 
 not subject to the objection that it imposed a tax on United States 
 securities constituting a portion of the investments of the com- 
 pany. A tax levied upon shares of stock in the hands of their 
 holders it has been uniformly held is not equivalent to a tax upon 
 of the company, but upon its corporate franchise, and, therefore, 
 it has been consistently held that the States may tax the shares 
 of a national bank in the hands of the shareholders, or, similarly, 
 the stock of corporations whose investments consist wholly or in 
 part of federal securities. 33 
 
 might lawfully impose, would have the same ultimate incidence. Precisely the 
 same argument was made and rejected in Owensboro Nat. Bank v. Owens- 
 boro." 
 
 306 Wall, 611; 18 L. ed. 907. 
 
 31 Citing Osborn v. Bank of U. S. (9 Wh. 738; 6 L. ed. 204). 
 
 32134 U. S. 594; 10 Sup. Ct. Rep. 593 ; 33 L. ed. 1025. 
 
 33 Van Allen v. Assessors (3 Wall. 573; 18 L. ed. 229) ; Provident Institu- 
 tion v. Massachusetts (6 Wall. 611; 18 L. ed. 907); Palmer v. McMahon 
 (133 U. S. 660; 10 Sup. Ct. Rep. 324; 33 L. ed. 772.)
 
 THE MAINTENANCE OF FEDERAL SUPREMACY. 107 
 
 53. Income from Federal Securities Exempt from State Taxa- 
 tion. 
 
 Incomes derived from interest on federal securities, are exempt 
 from. state taxation. 34 This was held with reference to the exemp- 
 tion from federal taxation of incomes derived from state securi- 
 ties, and the same reasoning would of course exclude from state 
 taxation incomes derived from federal securJtieB.* 8 
 
 54. State Taxation of Circulating Notes of National Banks. 
 
 Congress, by an act approved August 13, 1894, has provided that 
 " circulating notes of national banking associations and United 
 States legal tender notes, and other notes and certificates of the 
 United States, payable on demand, and circulating or intended 
 to circulate, as currency . . . shall be subject to [state] taxa- 
 tion as money on hand or on deposit." In Hibernia Savings and 
 Loan Society v. San Francisco 30 the Supreme Court held that not- 
 withstanding the act of Congress of 1862 3T declaring that 
 " all stocks, bonds, treasury notes, and other obligations of the 
 United States shall be exempt from taxation by or under state or 
 municipal or local authority,'* certain United States treasury 
 checks for interest accrued upon registered bonds of the United 
 States, where intended for immediate payment of interest, might 
 be taxed by a 'State in the hands of the owner. " Had the govern- 
 ment [of the United States]," said the court, " in the absence of 
 money for the immediate payment of interest upon its bonds, 
 issued new obligations for the payment of this interest at a future 
 clay, it might well be claimed that these were not taxable, as the 
 taxation of such notes would, to the extent of the tax, impair 
 their value and negotiability in the hands of the holder. . . . 
 But where the checks are issued payable immediately, they merely 
 stand in the place of coin, which may be immediately drawn 
 
 34 Bank of Kentucky v. Com. (4 Bush. 48). 
 
 35 Pollock v. Farmers' Loan and Trust Co. (157 U. S. 429; 15 Sup. Ct. Rep. 
 673: 39 L. ed. 759). 
 
 36200 U. S. 310; 26 Sup. Ct. Rep. 265; 50 L. ed. 495. 
 37 Rev. Stat., 3701.
 
 108 UNITED STATES CONSTITUTIONAL LAW. 
 
 thereoru . . . While the checks are obligations of the United 
 States, and within the letter of Sec. 3701, they are not within 
 its spirit, and are proper subjects of taxation. 1 ' 
 
 55. State Taxation of Bequests to the United States. 
 
 Bequests to the United States may be subjected to state in- 
 heritance taxes, such taxes, the courts, both state and federal, 
 holding to be not upon the property bequeathed, but upon its 
 transmission by will or by descent. " The legacy becomes the 
 property of the United States only after it has suffered a diminu- 
 tion to the amount of the tax, and it is only upon this condition 
 that the state legislature assents to a bequest of it." 38 
 
 Further, in Plumber v. Coler 39 it Avas held that the state in- 
 heritance tax might be collected upon a bequest consisting of 
 United States bonds issued under an act of Congress specifically 
 declaring them to be exempt from state taxation in any form. 
 After an exhaustive review of authorities the court say : " We 
 think the conclusion fairly to be drawn from the federal cases is 
 that the right to take property by will or by descent is derived 
 from and regulated by municipal law; that, in assessing a tax 
 upon such right or privilege, the State may lawfully measure or 
 fix the amount of the tax by referring to the value of the property 
 pass-ing, and that the incidental fact that such property is com- 
 posed, in whole or in part, of federal securities, does not invali- 
 date the tax or the law under which it is imposed." In Murefock 
 v. Ward * it was held that a similar bequest of federal securities 
 was not exempt from the inheritance tax imposed by the War 
 Revenue act of Congress of 1898. 
 
 56. State Taxation of National Banks. 
 
 By act of June 3, 1S64, certain powers of taxation with refer- 
 ence to national banks were given by Congress to the States. This 
 permission now constituting Section 5219 of the Revised Statutes 
 
 38 United States v. Perkins (163 TJ. S. 625; 16 Sup. Ct. Rep. 1073; 41 L. ed. 
 237). 
 
 39 178 U. S. 115 : 20 Sup. Ct. Rep. 829: 44 L. ed. 998. 
 > 178 U. S. 139 ; 20 Sup. Ct. Rep. 775 ; 44 L. ed. 1009.
 
 THE MAIXTKXANCE or I'KUKKAL Si PUKMACY. 109 
 
 is as follows : '' Xothiug herein shall prevent all the shares in 
 any association from being included in the valuation of the per- 
 sonal property of the owner or holder of such shares, in assessing 
 taxes imposed by authority of the State in which the association 
 is located; but the legislature of each State may determine and 
 direct the manner and place of taxing all shares of national bank- 
 ing associations located within the State, subject to only the two 
 restrictions, that the taxation shall not be at a greater rate than 
 is assessed upon other moneyed capital in the hands of individual 
 citizens of such State, and that the shares of any national banking 
 association owned by nonresidents of any State, shall be taxed in 
 the city or town where the bank is located, and not elsewhere. 
 Xothiug herein shall be construed to exempt the real property of 
 associations from either state, county, or municipal taxes to the 
 same extent, according to its value, as other real property is 
 taxed." 
 
 As has been already pointed out this permission measures the 
 entire extent of the State's power of taxation with reference to 
 the national banks. This federrl act has been construed to oper- 
 ate not as a grant by the United States to the States of a power 
 not previously possessed, but as the removal by Congress of a 
 hindrance to the exercise by the States of a power inherent in 
 them. In Van Allen v. Assessors 41 the court s&y : " It 
 is said that Congress possesses no power to confer upon 
 a State authority to be exercised which has been ex- 
 clusively delegated to that body by the Constitution and, conse- 
 quently, that it cannot confer upon the State the sovereign right 
 of taxation ; nor is the State competent to receive a grant of any 
 such power from Congress. "We agree to this. But as it respects 
 a subject-matter over which Congress and the States may exercise 
 a concurrent power, but from the exercise of which Congress, "by 
 reason of its paramount authority, may exclude the States, there 
 is no doubt Concross may withhold the exercise of that authority 
 and leave the States free to act. . . . The power of taxation 
 under the Constitution as a general rule, and as has l>een repoat- 
 
 3 Wall. 573; 18 L. ed. 229.
 
 110 UNITED STATES CONSTITUTIONAL LAW. 
 
 edly recognized in adjudged cases in this court, is a concurrent 
 power. The qualifications of the rule are the exclusion of the 
 States from the taxation of the means and instruments employed 
 in the exercise of the functions of the Federal Government.'*' ^ 
 
 In Van Allen v. Assessors, 43 as previously stated, the court held 
 that the congressional permission to the States to tax the shares 
 of national banks in the hands of the shareholders was not de- 
 feated by the fact that such banks have their capital wholly or in 
 part invested in federal securities. 
 
 The power of the States under Section 5219 to tax property 
 and the shares of stock of national banks of their holders, does 
 not carry with it the authority to levy a tax that will in any wise 
 operate as a tax on the franchise of the banks, that is, their right 
 to be and to do business within the State. 
 
 In Owensboro National Bank v. Owensboro 44 the only question 
 held by the court to be open to argument was as to whether in fact 
 the State tax involved operated as a tax on the franchise of the 
 bank. That it would be void if it did so operate the court held not 
 open to doubt. In this case, the tax, while not a tax on the fran- 
 chise in a technical sense, was held to be not upon the shares of 
 stock in the names of the shareholders, but upon all the intangible 
 property of the bank and, therefore, void. 
 
 57. Federal Taxation of State Agencies. 
 
 Correlative to the implied limitation upon the States with re- 
 spect to interference with federal agencies of government, is the 
 implied obligation upon the Federal Government not to interfere 
 with the operation of the governmental agencies of the States. 
 This limitation upon the Federal Government is not, however, so 
 strictly construed as that laid upon the States. Here, as in every 
 other case, where a conflict arises between the exercise of federal 
 
 Compare In re Rahrer (140 U. S. 545; 11 Sup. Ct. Rep. 865; 35 L. ed. 
 572) in which was sustained the power of Congress to permit a State to extend 
 police jurisdiction over imported liquors upon their arrival within the State. 
 
 3 Wall. 573; 18 L. ed. 229. 
 
 "173 U. S. 664; 19 Sup. Ct. Rep. 537; 43 L. ed. 850.
 
 THE MAINTENANCE OF FEDEKAL SUPREMACY. Ill 
 
 powers, and of state powers, the State must yield, although, except 
 for this opposition, it would be within its constitutional rights. 
 Thus franchises granted to interstate railway companies by the 
 United States are not taxable by the States. 45 But in Veazie Bank 
 v. Fenno 46 the Federal Government, in the exercise of its constitu- 
 tional powers to control the currency, was permitted to tax out of 
 (,-\:>tence the issue of state banks, although it was not denied that 
 th^e States had the constitutional power to charter such_ banks. 47 
 
 In this Veazie Bank case it was argued on behalf of the State 
 that the federal tax in question was, in effect, a tax on a fran- 
 chise granted by the State, and as such unconstitutional. The 
 court held that, in fact, the tax was not upon the franchise of the 
 bank, but declared, obiter. " 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 purposes of state 
 government, are not proper subjects of the taxing power of Con- 
 gress. 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 property, and when 
 not conferred for the purpose of giving effect to some reserved 
 power of a State, seems to be as properly objects of taxation as 
 any other property." 
 
 Similarly in Ex parte Rapier 48 it was held that the fact that a 
 lottery company was chartered by a State did not prevent the 
 Federal Government from excluding its tickets from the mails. 
 
 The Supreme Court has not, however, permitted this principle 
 of the supremacy of the Federal Government to authorize the 
 National Government, by taxation or otherwise, to interfere with 
 the States in the exercise of their governmental rights, except in 
 as far as such interference is necessary to the exercise of a fed- 
 
 Calif v. Pacific R. R. Co. (127 U. S. 1; 8 Sup. Ct. Rep. 1073; 32 L. ed. 
 150). 
 
 8 Wall. 533; 19 L. ed. 482. 
 
 Briscoe v. Bank of Kentucky (11 Pet. 257; 9 L. ed. 709). 
 143 U. S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93.
 
 112 UNITED STATES CONSTITUTIONAL LAW. 
 
 eral power. In Lane County v. Oregon* 9 it was held that the 
 Federal Government was without the power to compel the States 
 to receive in payment of their taxes paper currency that had been 
 declared legal tender by the Federal Government. In its opinion 
 the court say: "The people of the United States constitute 
 one nation, under one government, and this government within 
 the scope of the powers with which it is invested, is supreme. 
 On the other .hand the people of each State compose a State. 
 having its own government, and endowed with all the functions 
 essential to separate and independent existence. The States dis- 
 united might continue to exist. Without the States in union 
 there could be no such political body as the United States. 
 . . . Xow, to the existence of the States, themselves, necessary 
 to the existence of the United States, the power of taxation is in- 
 dispensable. It is an essential function of the government. 
 . . . In respect, however, to property, business and person-, 
 within their respective limits their power of taxation remained 
 and remains entire. It is, indeed, a concurrent power, and in the 
 case of a tax on the same subject by both governments, the claim 
 of the United States, as the supreme authority, must be preferred; 
 but, with this qualification it is absolute. The extent to which it 
 shall be exercised, the subjects upon which it shall be exercised, 
 and the mode in which it shall be exercised, are equally within 
 the discretion of the legislatures to which the States commit the 
 exercise of the power. That discretion is restrained only by tlie 
 will of the people expressed in the state Constitutions or through 
 elections, and by the condition that it must not be so used as io 
 burden or embarrass the operations of the National Government. 
 There is nothing in the Constitution which contemplates or au- 
 thorizes any direct abridgement of this power by national legisla- 
 tion. To the extent just indicated it is as complete in the States 
 as the like power, within the limits of the Constitution, is com- 
 plete in Congress. If, therefore, the condition of any State, in 
 the judgment of its legislature, requires the collection of taxes in 
 kind, that is to 'say, by the delivery to the proper officers of a 
 
 49 7 Wall. 71 ; 19 L. ed. 101.
 
 THE ^MAINTENANCE OF FEDERAL SUPREMACY. 113 
 
 certain proportion of products, or in gold or silver bullion, or in 
 gold and silver coin, it is not easy to see upon what principle the 
 Xational Legislature can interfere with the exercise, to that end, 
 of this power, original in the States, and never as yet surrendered. 
 If this be so, it is, certainly, a reasonable conclusion that Con- 
 gress did not intend, by the general terms of the Currency Act, 
 to restrain the exercise of this power in the manner shown by the 
 Statutes of Oregon." 
 
 In the case of Collector v. Day 50 it held that the Federal Gov- 
 ernment, could not levy an income tax upon the salaries of state 
 
 officials. ~T5T~that~T r asethecourt said : " If the means and in- 
 strumentalities employed by that [the General] 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 Constitution that prohibits the Gen- 
 eral 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 con- 
 trol of another and distinct government, can only exist at the 
 mercy of that government. Of what avail are these means if 
 another power may tax them at discretion ? " 
 
 Thus, the court goes on to point out that the alleged federal 
 riii'ht that was involved, so far from being similar to that sus- 
 tained in Veazie Hank v. Fenno, was included within that sphere 
 of state interest which the court in that case expressly declared 
 to be beyond the taxing power of the Federal Government. 
 
 5011 Wall. 113; 20 L. ed. 122.
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 58. Federal Taxation of Property of Municipalities. 
 
 In United States v. B. & O. Ky. 51 it was held that the United 
 States could not collect a tax on money due a municipality of 
 one of the States, the court saying: "A municipal corporation 
 like the City of Baltimore, is a representative not only of the 
 State, but is a portion of its governmental power. It is one of 
 its creatures, made for a specific purpose, to exercise within a 
 limited sphere the powers of the State. The State may withdraw 
 these local powers of government at pleasure, and may, through 
 its legislature or other appointed channels, govern the local terri- 
 tory as it governs the State at large. It may enlarge or contract 
 its powers or destroy its existence. As a portion of the State in 
 the exercise of a limited portion of the powers of the State, its 
 revenues, like those of the State, are not subject to taxation." ' 
 
 In Mercantile Nat. Bank v. !^ew York 53 it was decided that 
 the United States might not tax bonds issued by a State or one 
 of its municipal bodies, under its authority, and held by private 
 corporations'. 
 
 In the Income Tax case 54 it was held that a federal- tax might 
 not be levied on income derived from municipal bonds. 
 
 In Ambrosini v. United States 55 the court held that bonds 
 given to secure the proper enforcement of state laws in respect 
 to the sale of intoxicating liquors, were not subject to fed- 
 eral taxation. 
 
 59. South Carolina v. United States. 
 
 An interesting case of recent date bearing upon the right of the 
 Federal Government, by taxation or otherwise, to interfere with 
 
 61 17 Wall. 322; 21 L. od. 597. 
 
 62 In this case two justices dissented on the ground that, conceding that 
 the instruments for conducting the public affairs of the municipality are 
 entitled to the same exemption from federal taxation as those of the State 
 at large, it did not follow that property possessed and used merely in a 
 commercial way for income or profits was thus exempt. 
 
 53 121 U. S. 138; 7 Sup. Ct. Rep. 826; 30 L. ed. 895. 
 
 54 Pollock v. Farmers' Loan & Trust Co. (157 U. S. 429; 15 Sup. Ct. Rep. 
 C73; 39 L. ed. 759). 
 
 63 187 U. S. 1; 23 Sup. Ot. Rep. 1; 47 L. ed. 49.
 
 THE MAINTENANCE OF FEDERAL SUPREMACY. 115 
 
 state governmental operations is that of the State of South Caro- 
 lina v. United States, 56 decided in 1905. In this case was ques- 
 tioned the right of the Federal Government to levy internal 
 revenue taxes upon intoxicating liquors sold under the state dis- 
 pensary system of South Carolina. 
 
 By several statutes the State had assumed the direct control of 
 the wholesale and retail sale of intoxicating liquors within its 
 limits, had established dispensaries, and appointed dispensers 
 therein. The dispensers received fixed salaries, and had there- 
 fore no pecuniary interest in the sales, the entire profits there- 
 from being appropriated by the State, one-half being divided 
 equally between the municipality and the county in which the 
 dispensaries were located, and the other half paid into the state 
 treasury. In previous cases the Supreme Court of the United 
 States had held that the regulation and control of the sale of in- 
 toxicating liquors, so far as interstate commerce was not inter- 
 fered with, was within the legitimate police power of the States, 
 and, indeed, by express congressional statute the States had been 
 permitted to control the sale of imported liquors after their ar- 
 rival within the States. The question thus was : had the Federal 
 Governmen^TEg^constitutional power to exact taxea from officials 
 appointed and paid by the State of South Carolina and perform- 
 ing functions which the State was -canstitutioiially empowered to 
 intrust -to them ? The Supreme Court held that, in this particu- 
 lar case, it had. With reference to the argument that was made 
 by South Carolina that for Congress to tax the agents of the State 
 charged with the duty of selling intoxicating liquors, was to inter- 
 fere with the State's legitimate police power, the court said: "We 
 are not insensible to the force of this argument, and appreciate the 
 difficulties which it presents, but let us see to what it leads. Each 
 State is subject only to the limitations prescribed by the Constitu- 
 tion, and within its territory is otherwise supreme. Its internal 
 affairs are matters of its own discretion. The Constitution pro- 
 vides that ' the United States shall guarantee to every State in this 
 Union a republican form of Government.' 57 That expresses the 
 
 56 100 U. S. 437; 26 Sup. Ct, Rep. 110; 50 L. ed. 261. 
 67 Art. IV, 4.
 
 116 UNITED STATES CONSTITUTIONAL LAW. 
 
 full limit of national control over the internal affairs of a State. 
 The rights of South Carolina to control the sale of liquor by the 
 dispensary system has been sustained. 58 The profits from the 
 business in the year 1906, as appears from the findings of fact, 
 were over a half a million dollars. Mingling the thought of profit 
 with the necessity of regulation may induce the State to take 
 possession, in like manner, of tobacco, oleomargarine, and all 
 other objects of internal revenue taxation. If one State finds it 
 thus profitable, other States may follow, and the whole body of 
 internal revenue tax be thus stricken down." 
 
 The 'Supreme Court was not content to rest its judgment upon 
 a premised possibility of serious interference with the revenues 
 of the JSTational Government should the State be permitted, by 
 assuming control of an enterprise, to withdraw it from federal 
 taxation. Two additional reasons were given why the tax in 
 question should be held valid. In the first place the court note 
 the fact that the tax " is not imposed on any property belonging 
 to the State, but is a charge on a business before any profits are 
 realized therefrom." It is thus, the court say, similar to a suc- 
 cession tax which has been construed to be a tax levied upon and 
 deducted from property before the person to whom it is be- 
 queathed obtains a title thereto. The second additional reason 
 given by the Supreme Court for holding constitutional the fed- 
 eral income tax upon the South Carolina dispensaries is. that it 
 is not a tax upon the means of instrumentalities employed by 
 the State in discharge of its ordinary functions of government. 
 Upon this point the court adverts to the fact that in the cases in 
 which a federal tax upon state agencies had been held unconsti- 
 tutional, it had been levied upon instrumentalities of government. 
 After a review of the cases, the court say: " These decisions, 
 while not controlling the question before us, indicate that the 
 thought has been that the exemption of state agencies and instru- 
 mentalities from national taxation is limited to those which are 
 of a strictly governmental character, and does not extend to those 
 
 58 Vance v. Vandercook Co. (170 U. S. 438; 18 Sup. Ct. Rep. 674; 42 L. ed. 
 1100).
 
 THE MAIXTEXAXCE OF FEDERAL SUPREMACY. 117 
 
 which are used by the State in the carrying on of an ordinary 
 private business." 09 
 
 In conformity with the doctrine that state inheritance taxes, 
 may be levied and collected upon bequests or estates consisting 
 of federal securities, it has been held that state securities are 
 similarly subject to inheritance taxes federally imposed. 
 
 59 In support of this distinction between the ordinary functions of govern- 
 ment, and the control of private enterprises by the State, the court refers 
 to the well-established distinctions between the duties of a public character 
 cpst upon municipal corporations, and those which relate to what may be 
 considered their private business, and the resulting different responsibilities in 
 cases of negligence in respect to the discharge of those duties, respectively. 
 (Oliver v. Worcester, 102 Mass. 489; Lloyd v. New York, 5 X. Y. 369; Western 
 Sav. Fund Society v. Philadelphia, 31 Pa. 175.) In the last case it was held 
 that a city supplying gas to the inhabitants acts as a private corporation, 
 and is subject to the same liabilities and disabilities. In its opinion the 
 Supreme Court declare : " Such contracts are not made by the municipal 
 corporation by virtue of its powers of local sovereignty, but in its capacity 
 of a private corporation. The supply of gaslight is no more a duty of 
 sovereignty than the supply of water. Both these objects may be accomplished 
 through the agency of individuals or private corporations, and in very many 
 instances they are accomplished by those means. If this power is granted 
 to a borough or a city, it is a special private franchise, made as well for the 
 private emolument and advantage of the city as for the public good. The 
 whole investment is the private property of the city, as much so as the 
 lands and houses belonging to it. Blending the two powers in one grant does 
 not destroy t"he clear and well-settled distinction, and the process of separa- 
 tion is not rendered impossible by the confusion. In separating them, regard 
 must be had to the object of the legislature in conferring them. If granted 
 for public purposes exclusively, they belong to the corporate body in its public, 
 political or municipal character. But if the grant was for the purpose of 
 private advantage and emolument, though the public may derive a common 
 benefit therefrom, the corporation quoad hoc is to be regarded as a private 
 company. It stands on the same footing as would any individual or body 
 of persons upon whom the like special franchises had been conferred." 
 Concluding its opinion, the Supreme Court of the United States say: "Now, 
 if it be well-established, as these authorities say, that there is a clear dis- 
 tinctiuii as resjiects responsibility for negligence between the powers granted 
 to a corporation for governmental purposes and those in aid of private 
 business, a like distinction may be recognized when we are asked to limit 
 the full power of imposing excises granted to the National Government by 
 an implied inability to impede or embarrass a State in the discharge of its 
 functions. It is reasonable to hold that, while the former may do nothing 
 by taxation in any form to prevent the full discharge by the latter of its 
 governmental functions, yet, whenever a Stale engages in a business which is
 
 118 UNITED STATES CONSTITUTIONAL LAW. 
 
 60. Federal Taxation of State Documents. 
 
 In a number of cases in the State courts, interesting points 
 have been raised and decided with reference to the obligation 
 imposed by federal laws to affix stamps to certain documents. 
 There is little doubt that the United States may in its own courts, 
 or in other ways refuse to recognize the validity of unstamped 
 documents, but it would seem that it may not dictate to state 
 agencies what instruments they shall accept as valid and enforce- 
 able. Though Congress may provide that certain instruments 
 shall be stamped and that if not so stamped they shall not be 
 received as evidence in federal courts, the State cannot be com- 
 pelled to exclude them as evidence in its courts upon that ground. 
 
 of a private nature, that business is not withdrawn from the taxing power 
 of the nation." 
 
 Three justices dissented from the judgment rendered in South Carolina v. 
 United States. After a review of authorities, which in their judgment did 
 not warrant the position assumed by the majority in the case on trial, these 
 justices say, in answer to the contention that if the instrumentalities of the 
 State in the control of the liquor trade be declared exempt from federal 
 taxation, the way is opened to the States seriously to interfere with federal 
 revenues by extending their operations in other similar directions: "But 
 these extreme illustrations amount simply to saying that it is possible 
 for the imagination to foreshadow conditions which, did they arise, would 
 impair the government created by the Constitution, and, because such con- 
 jectures may be indulged in, the limitations created by the Constitution 
 for the purpose of preserving both the state and national governments are to 
 be disregarded. In other words, that the government created by the Constitu- 
 tion must now be destroyed, because it is possible to suggest conditions 
 which, if they arise, would, in future, produce a like result. But the weak- 
 ness of the illustrations as applied to this case is apparent. They have no 
 relation to this case, since it is not denied that, as to liquor, the State has 
 absolute power, andr may prohibit the sale of all liquor, and thus prevent 
 the United States from deriving revenue from that source. Again, therefore, 
 when the true relation of the argument, to the case in hand is seen, it 
 reduces itself to a complete contradiction, viz., a State may, by prohibition, 
 prevent the United States from reaping revenue from the liquor traffic, but 
 any other state regulation by which such result is accomplished may be 
 prevented by the United States, because thereby the State has done indirectly 
 only that which the State had the lawful power directly to do." 
 
 As to the point that the -State of South Carolina was deriving a revenue 
 from the conduct of the liquor business, the dissenting justices point to 
 the fact that in previous cases it had been expressly settled that the law 
 establishing the State dispensaries had not been passed as a revenue, but as 
 a purely police measure.
 
 THE MAINTENANCE OF FEDERAL SUPREMACY. 119 
 
 It has also been held by state courts that the United States may 
 not impose a stamp tax upon judicial processes of state courts, 
 or forbid the recording of unstamped mortgages, or tax the official 
 bonds of state officers. 00 
 
 61. Federal Exercise of Eminent Domain in the States. 
 
 The relation of the federal power to state governmental instru- 
 mentalities lias been further illustrated in the matter of the Fed- 
 eral Government's right of eminent domain, it having been held 
 that the General Government has an implied right of eminent 
 domain which it may exercise within a State with or without that 
 State's consent, 01 Though never authoritatively decided the bet- 
 ter opinion is, however, that the United States may not take for 
 its own use land or other property essential to the State in per- 
 formance of its governmental functions. 
 
 The subject will receive fuller treatment in its appropriate 
 place. 02 
 
 so Jones v. Keep (19 Wis. 376) ; Fifield v. Close (15 Mich. 505) ; Tucker 
 v. Potter (35 Conn. 46); Moore v. Quirk (105 Mass. 49); Sayles v. Davis 
 (22 Wis. 225) ; Davis v. Richardson (45 Miss. 503) ; Garland v. Gaines (73 
 Conn. 662) ; 52 L. R. A. 915. Cf. Judson, On Taxation. 501. 
 
 61 Monongahela Navigation. Co. v. U. S. (148 U. S. 312; 13 Sup. Ct. Rep. 
 622; 37 L. ed. 463) ; Chappell v. U. S. (160 U. S. 499; 16 Sup. Ct. Rep. 397; 
 40 L. ed. 510). 
 
 62 McClain, Constitutional Law in the United Slates, p. Ill, says: "As 
 between the Federal Government and a state government, neither one can 
 authorize the condemnation for public use of land which has already been 
 acquired either by condemnation or purchase by the other for public use." 
 He cites, however, no authority, and, moreover, adds: "Possibly the United 
 States Government could not, by any action of the State, be excluded from 
 appropriating state property for federal purposes, but such questions are 
 not likely to arise, for it is hardly conceivable that the Federal Government 
 should find it expedient and necessary to interfere with any State in the 
 enjoyment and discharge of its public rights and duties."
 
 CHAPTEK VI. 
 
 THE MAINTENANCE OF FEDERAL SUPREMACY BY WRITS OF ERROR 
 FROM THE FEDERAL SUPREME COURT TO STATE COURTS. 
 
 62. Writs of Error to State Courts. 
 
 A corollary that follows from the supremacy of federal law is 
 that when a federal right, privilege or immunity is set up as a 
 defense or authority for an act, opportunity shall exist for a final 
 determination of this point in the federal courts. As has been 
 earlier pointed out, the original Judiciary Act, passed in the first 
 year of the Constitution, in its famous twenty-fifth section, pro- 
 vided that a final judgment or decree in any suit, in the highest 
 court of law or equity of a State in which a decision of the suit 
 could be had, " where is drawn in question the validity of a treaty 
 or statute of, or an authority exercised under the United States, 
 and the decision is against their validity, or where is drawn in 
 question the validity of a statute of, or an authority exercised 
 under any State, on the ground of their being repugnant to the 
 Constitution, treaties or laws of the United States, and the de- 
 cision is in favor of such their validity, or where is drawn in 
 question the construction of any clause of the Constitution, or of 
 a treaty, or statute of, or commission held under the United 
 States, and the decision is against the title, right, privilege or 
 exemption specially set up or claimed by either party, under such 
 clause of the said Constitution, treaty, statute or commission may 
 be re-examined and reversed or affirmed in the Supreme Court of 
 the United States upon writ of error." In order that this appel- 
 late jurisdiction may be effectual this section also provides that 
 instead of remanding the cause to the state court for a final de- 
 cision therein, the Supreme Court may at their discretion, if the 
 cause has been once before remanded, proceed to a final disposi- 
 tion of the same and award execution. 
 
 These provisions have remained substantially unchanged since 
 their enactment to the present day. 
 
 [120]
 
 FEDERAL SUPREMACY BY WRITS OF ERROR. 121 
 
 It will be observed that provision for writ of error from the 
 federal Supreme Court is made only for those cases in which the 
 judgment in the state tribunals is adverse to the alleged federal 
 right, privilege or immunity. Where the state decision is favor- 
 able there is, of course, no need, based upon the principle of fed- 
 eral supremacy, for a federal review. 
 
 63. Martin v. Hunter's Lessee. 
 
 The constitutionality of this section of the Judiciary Act was 
 affirmed by the Supreme Court in 1816 in Martin v. Hunter's 
 Lessee. 1 This was a writ of error to the Court of Appeals of the 
 State of Virginia, founded upon a refusal of that court to obey 
 a mandate of the federal Supreme Court, the state court, in its 
 judgment, saying: "The court is unanimously of opinion that 
 the appellate 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 twenty- 
 fifth 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 performance of the 
 Constitution of the United States. That the writ of error in this 
 case was improvidently allowed under the authority of that act; 
 that the proceedings thereon in the Supreme Court were corant 
 non judice in relation to this court, and that obedience to its man- 
 date be declined by the court." 
 
 This position of the state court, the federal court, in one of 
 the weightiest of its decisions, declared to be erroneous, the argu- 
 ment being that, though not granted in express terms, the very 
 nature of the federal authority provided for by the Constitu- 
 tion makes this appellate power a necessary part of the general 
 judicial power granted to the National Government. 
 
 64. Cohens v. Virginia. 
 
 The appellate power of the federal Supreme Court under the 
 ; twenty-fifth section of the Judiciary Act was again contested in 
 
 i 1 Wli. 304 ; 4 L. ed. 97.
 
 122 UNITED STATES CONSTITUTIONAL LAW. 
 
 Cohens v. Virginia, 2 decided in 1821, Chief Justice Marshall ren- 
 dering the opinion of the court. This was a criminal case and 
 the first point made was that a case in which a State appeared 
 as defendant in error was a suit against a State and as such for- 
 bidden by the Eleventh Amendment. The court held, however, 
 that this Amendment has reference only to the suits in law or 
 equity commenced or prosecuted against one of the United States 
 by citizens of another State, and not to suits originally begun by 
 a State. " It is, then, the opinion of the court," declared Mar- 
 shall, " 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 in violation 
 Df the Constitution or laws of the United States, does not com- 
 mence or prosecute a suit against the State." 
 
 Secondly, the State renewed its claim that in no case might 
 the appellate jurisdiction of the Supreme Court be constitu- 
 tionally exercised over the judgment of a state court. To this 
 Marshall replied that the nature of the Federal Union provided 
 by the Constitution and intended by its framers and adopters, 
 required the exercise of the power. " We think," he declared, 
 " that in a government acknowledgedly supreme, with respect to 
 objects of vital interest to the Nation, there is nothing incon- 
 sistent 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 attain- 
 ment. The exercise of the appellate power over those judgments 
 of the state tribunals which may contravene the Constitution or 
 laws of the United States, is, we believe, essential to the attain- 
 ment of those objects." 
 
 To tne contention made by the State that to grant the appellate 
 jurisdiction in question would be to render possible a complete 
 consolidation of federal and state judicial power, Marshall replied : 
 "A complete consolidation of the States so far as respects the 
 judicial pwer would authorize the legislature to confer on the 
 federal courts appellate jurisdiction from the state courts in all 
 
 2 6 Wh. 264 ; 5 L. ed. 257.
 
 FEDERAL SUPREMACY BY WRITS OF ERROR. 123 
 
 cases whatsoever. The distinction between such a power, and 
 that of giving appellate jurisdiction in a few special cases, in the 
 decision of which the Xation takes an interest, is too obvious not 
 to be perceived by all." 
 
 Since Cohens v. Virginia, the constitutional power of the 
 federal Supreme Court to revise by writ of error decisions of 
 state courts coming within the provisions of the twenty-fifth sec- 
 tion of the Judiciary Act has been but once seriously questioned, 
 and then under the strong stimulus of objection to the Fugitive 
 Slave Law of 1850. 3 
 
 sAbleman v. Booth (21 How. 506; 16 L. ed. 169). See ante, p. 84.
 
 CHAPTER. VII. 
 
 THE MAINTENANCE OF FEDERAL SUPREMACY BY THE REMOVAL 
 OF SUITS FROM STATE TO FEDERAL COURTS. 
 
 65. Right of Removal. 
 
 A corollary which necessarily follows from the doctrine of 
 federal supremacy is that no State can declare criminal and 
 punish as such acts authorized by federal law. Since the Civil 
 War this has not been directly denied by the States, but it has 
 been strenuously asserted by them that when an offense has 
 been committed against their own peace, and the one committing 
 it has been apprehended and brought to trial before their own 
 courts, he is not entitled to have his case removed at once to the 
 federal courts simply by setting up as a defense that his act was 
 done in pursuance of an authority delegated him by the General 
 Government The right to set up this defense has not been 
 denied by the States, nor have they claimed that, should the deci- 
 sion of their courts be adverse to him upon this point, he may not 
 take an appeal from their highest tribunals to the Supreme Court 
 of the United States. But they have asserted that when an act 
 has been committed which is criminal by their laws, it is, pri- 
 marily, an offense against their peace, and as such cognizable only 
 in their own courts, and, therefore, that though, as has been just 
 said, a right of appeal from their highest courts to the United 
 States Supreme Court upon the questions of federal authority 
 must be allowed, the trial of the offense may not, as a matter of 
 right, be removed by the accused from the state court in which 
 it is begun to one of the lower federal courts. 
 
 These lower federal courts, as is well known, possess only those 
 powers which have been granted to them by act of Congress. By 
 the original Judiciary Act 1 Congress did not, as it might have, 
 endow these tribunals with a general jurisdiction in proceedings 
 
 i 1 Stat. at L. 73. 
 
 [124]
 
 FEDERAL SUPREMACY BY REMOVAL OF SUITS. 
 
 V 
 
 against federal officers based upon their official acts. By the 
 famous Force Act of 1833, however, an act passed at the time of 
 South Carolina's attempted nullification of the United States 
 tarilf law, it was provided that '' when any civil suit or criminal 
 prosecution is commenced in any court of a State against any 
 officer appointed under, or acting by authority of, any revenue 
 law of the United States, now or hereafter enacted, or against 
 any person acting by or under authority of any such officer, or 
 on account of any act done under color of his office/' the case, at 
 the defendant's instance, might be at once removed from the state 
 to the federal courts for trial. 
 
 66. Tennessee v. Davis. 
 
 This act has been from time to time amended, and now forms 
 643 of the Revised Statutes. Its constitutionality was first 
 judicially examined by the Supreme Court in Tennessee v. Davis. 2 
 In this case Davis, a federal revenue officer, killed a man, was 
 arrested therefor, and, when brought to trial, applied for removal 
 to a federal court under this act. The State of Tennessee denied 
 the constitutionality of this grant of right upon the ground that 
 the act for which Davis was being tried was a violation of state 
 and not of federal law. This the federal authorities admitted, 
 but asserted that, inasmuch as the defendant was a federal official, 
 and claimed to have committed the homicide while in pursuance 
 of his duties as such, the federal courts had the right to assume 
 jurisdiction of the case in order that the independence and 
 supremacy of federal authority might be maintained. 
 
 Justice Strong, in rendering the opinion of the United States 
 Supreme Court upon this point, prefaced his discussion by say- 
 ing: "A more important question can hardly be imagined. Upon 
 its answer may depend the possibility of the General Govern- 
 ment's preserving its own existence. As was said in Martin v. 
 Hunter's Lessee, 3 ' the General Government must cease to exist 
 whenever it loses the power of protecting itself in the exercise 
 of its constitutional powers.' It can only act through its officers 
 
 2 1 00 I*. S. 2o7: 25 L. ed. 648. 
 
 3 1 Wh. 304 : 4 L. ocl. f7.
 
 126 UNITED STATES CONSTITUTIONAL LAW. 
 
 and agents, and they must act within the States. If, when thus 
 acting, and within the scope of their authority, those officers can. 
 be arrested and brought to trial in a state court, for an alleged 
 offense against the law of the State, yet warranted by the federal 
 authority they possess, and if the General Government is power- 
 less to interfere at once for their protection if their protection 
 must be left to the action of the state courts the operations 
 of the General Government may at any time be arrested at the 
 will of one of its members. The legislature of a State may be 
 unfriendly. It may affix penalties to acts done under the imme- 
 diate direction of the National Government, and in obedience to 
 the laws. It may deny the authority conferred by those laws. 
 The state court may administer not only the laws of the State, 
 but equally the federal law, in such a manner as to paralyze the 
 operations of the government. And even if, after trial and final 
 judgment in the state court, the case can be brought into the 
 United States court for review, the officer is withdrawn from the 
 discharge of his duty during the pendency of the prosecution, and 
 the exercise of acknowledged federal authority arrested. We do 
 not think such an element of weakness is to be found in the Con- 
 stitution. The United States is a government with authority 
 extending over the whole territory of the Union, acting upon the 
 States and the people of the States. While it is limited in the 
 number of its powers, so far as its authority extends, it is su- 
 preme. Xo state government can exclude it from the exercise of 
 any authority conferred upon it by the Constitution, obstruct 
 its authorized officers against its will, or withhold from it, for 
 a moment, the cognizance of any subject which that instrument 
 has committed to it. ... The constitutional right of Con- 
 gress to authorize the removal before trial of civil cases arising 
 under the laws of the United States has long since passed beyond 
 doubt. It was exercised almost contemporaneously with the 
 adoption of the Constitution, and the power has been in constant 
 use ever since. ... If there is power in Congress to direct 
 removal before trial of a civil case arising under the Constitu- 
 tion or laws of the United States, and direct its removal because
 
 FEDEKAL SUPBEMACY BY REMOVAL OF SUITS. 127 
 
 such a case has arisen, it is impossible to see why the same power 
 may not order the removal of a criminal prosecution, when a 
 similar case has arisen under it The judicial power is declared 
 to extend to all cases of the character described, making no dis- 
 tinction between civil and criminal, and the reasons for con- 
 ferring upon the courts of the National Government superior 
 jurisdiction over cases involving authority and rights under the 
 laws of the United States, are equally' applicable to both. . . . 
 Such a jurisdiction is necessary for the preservation of the 
 acknowledged powers of the government. It is essential, also, 
 to an uniform and consistent administration of national laws. 
 . . . It is true, the [Judiciary] Act of 1789 authorized the 
 removal of civil cases only. It did not attempt to confer upon 
 the federal courts all the judicial power vested in the government 
 Additional grants have been made from time to time." 4 
 
 *As to the point raised by the State that the act of 1833 provided no 
 specific mode of procedure, Justice Strong said: "The Circuit Courts of the 
 United States have all the appliances that are needed for the trial of any 
 criminal cases. They adopt and apply the laws of the State in civil cases, 
 and there is no more difficulty in administering the State's criminal law. 
 They are not foreign courts. The Constitution had made them courts within 
 the States to administer the laws of the States in certain cases; and, so long 
 as they keep within the jurisdiction assigned to them, their general powers 
 are adequate to the trial of any case. The supposed anomaly of prosecuting 
 offenders against the peace and dignity of a State, in tribunals of the General 
 Government, grows entirely out of the division of powers between that Gov- 
 ernment and the government of a State; that is, a division of sovereignty over 
 certoin matters. When this is understood, and it is time that it should be, 
 it will not appear strange that even in cases of criminal prosecutions for 
 alleged offenses against a State in which arises a defense under United States 
 law. the General Government should take cognizance of the case and try it in 
 its own courts, according to its own form of proceeding." 
 
 In this case Justices Clifford and Field dissented, their dissent being based 
 upon the argument that, granting (which they did not admit), that Congress 
 ma} pass such laws a* it dei'ins necessary for the protection of its agents, 
 and may for that purpose define the acts that shall be considered crimes, and 
 give to the inferior federal courts jurisdiction to try those charged with com- 
 mitting them, it had not in fact done so. The act of 1833 had, indeed, pro- 
 vided for the removal from state to federal courts of criminal suits against 
 officers acting under authority of any federal revenue law growing out of acts 
 committed by them under such authority, but, said the dissentient Justices,
 
 128 UNITED STATES CONSTITUTIONAL LAW. 
 
 It is seen that Section 643 gives the power of removal only 
 with reference to suits against revenue officers of the Federal 
 Government. Section 641 provides that " when any civil suit or 
 criminal prosecution is commenced in any State Court for any 
 cause whatsoever against any person who is denied or cannot en- 
 force in the judicial tribunals of the State or in the part of the 
 State where such suit or prosecution is pending any right secured 
 by him by any law providing for the equal civil rights of citizens 
 of the United States, or of all persons within the jurisdiction of 
 
 there was upon the federal statute books no laws specifically defining as a 
 crime the act with which Davis was charged and affixing an appropriate 
 penalty therefor. Therefore, they held, no federal law having been violated, 
 the federal circuit court could not take or be given jurisdiction of the case. 
 " Criminal jurisdiction is not by the Constitution conferred upon any court," 
 they declared, " and it is settled law that Congress must in all cases, make 
 any act criminal and define the offense before either the District or Circuit 
 Courts can take cognizance of an individual charging the act as an offense 
 against the authority of the United States. . . . Courts of the United States 
 derive no jurisdiction in criminal cases from the common law, nor can such 
 tribunals take cognizance of any act of an individual as a public offense, or 
 declare it punishable as such, until it has been denned as an offense by an 
 Act of Congress passed in pursuance of the Constitution." But, continued the 
 Justices, not only has Congress not legislated so as to give the necessary 
 jurisdiction in the case in question, but it could not constitutionally do so. 
 " Acts of Congress," they said, " cannot properly supersede the police powers 
 of the State. ... If the police law of the States does not deprive anyone of 
 that which is justly and properly his own, it is obvious that its possession 
 by the State and its exercise for the regulation of the actions of the citizens 
 can never constitute an invasion of the national sovereignty or afford a basis 
 for an appeal to the protection of the national authorities. In other words no 
 case either in law or equity, under the federal Constitution or laws or treaties 
 of the United States, over which the federal judicial power is constitutionally 
 extended (Art. Ill, 2) thereby arises." " Offices may be created," they con- 
 tinue, " by a law of Congress, and officers to execute the same may be 
 appointed in the manner specified in the Constitution; and it is not doubted 
 that Congress may pass laws for their protection, and for that purpose may 
 define the offense of killing such an officer when in discharge of his duties. 
 . . . But the principal question in this case is of a very different character, 
 as the indictment is against the officer of the revenue for murdering a citizen 
 of the State having in no way any official connection with the collection of 
 the public revenue. Neither the Constitution nor the Acts of Congress give a 
 revenue officer or any other officer of the United States an immunity to com- 
 mit murder in a State, or prohibit the State from executing its laws for the 
 punishment of the offender."
 
 FEDERAL SUPREMACY BY KEMOVAL OF SUITS. 129 
 
 the United States or against any officer, civil or military, or other 
 person for any arrest or imprisonment or other trespasses or 
 wrongs made or committed by virtue of, or under color of, au- 
 thority derived from any law providing for equal rights, as afore- 
 said, or refusing to do any act on the ground that it would be 
 inconsistent with such law, such suit or prosecution may upon 
 the petition of such defendant filed in said State Court at any 
 time before the trial or final hearing of the cause, stating the 
 facts and verified by oath, be removed for trial into the next 
 Circuit Court to be held in the district where it is pending." The 
 constitutionality of this section has been affirmed. 5 As to all federal 
 officials other than revenue officers, federal protection against state 
 action, when norosary, must be sought in cases not covered by 
 Section 641, either by way of writ of error from the highest state 
 court to the Supreme Court of the United States, or, if that be 
 inadequate, by writ of habeas corpus. 
 
 * 
 
 67. Right of Removal in Civil Cases. 
 
 The right to remove civil eases begun in state courts into the 
 federal courts will receive treatment in a later chapter. 7 In 
 these cases the right is given not so much that federal supremacy 
 may be maintained as that impartial tribunals may be secured to 
 the litigants. 
 
 is argument of the minority as to the constitutional incapacity of Con- 
 gress to provide for the summary removal from the state to federal courts of 
 cases of the class of the one at issue overlooks, or at least puts aside as not 
 controlling, Uie possibility, should its view be accepted, of a State, should it 
 so desire, so administering its criminal law as seriously and -even vitally to 
 interfere- with the exercise by the Federal Government of its acknowledged 
 constitutional powers. This the majority pointed out. the State could do l>y 
 so delaying the trial in its own courts of federal officials charged with crime, 
 :i< tn render in large measure nugatory the right of the accused to appeal to 
 the United States Supreme Court from the highest state court. 
 
 The majority doctrine in the Davis case has never been overruled. 
 
 E Straudor v. West Virginia, 100 U. S. 303. 
 
 6 Chapter VIII. 
 
 7 Chapter L. 
 
 9
 
 CHAPTER VIII. 
 
 MAINTENANCE OF FEDERAL SUPREMACY BY HABEAS CORPUS TO 
 STATE AUTHORITIES. 
 
 68. State Courts may not Interfere with Federal Authorities. 
 
 During the ante bellum .period the Federal Government often 
 made use of state tribunals and officers for the execution of its 
 laws. Thus state justices of the peace acted as examining magis- 
 trates in criminal cases for the federal courts, state judges 
 officiated in the execution of extradition treaties with foreign 
 countries, aliens were naturalized in state courts, and state jails 
 and penitentiaries were used for the incarceration of federal crim- 
 inals. Both because of this admixture of federal and state judi- 
 cial agencies, and because the principle of the absolute inde- 
 pendence of the Federal Government from state control was not 
 clearly recognized and admitted, the state courts early assumed 
 the right, by the issuance of writs of habeas corpus, to determine 
 whether a fugitive from the justice of a foreign country and 
 fugitive slaves should be surrendered; whether persons in the 
 federal army were properly held to military service ; and even 
 whether .persons in the military service of a foreign State should 
 be tried for acts done as belligerents and under the authority of 
 their sovereigns in conformity with the laws of nations. 1 
 
 It was not until 1859 that it was authoritatively established 
 by the United States Supreme Court in the case of Ableman v. 
 Booth 2 that the state courts were without the constitutional power 
 to interfere in any way with the process of federal courts, or, 
 in fact, with any agencies of the National Government. 3 Not- 
 withstanding this decision, however, a number of the state courts 
 still claimed and exercised the right to discharge enlisted sol- 
 diers and sailors of the United States from the custody of their 
 
 i People v. McLeod ( 1 Hill, 377 ) . See especially the paper of Seymour D. 
 Thompson before the American Bar Association at its annual meeting in 
 1884, entitled Abuses of the Writ of Habeas Corpus. 
 
 221 How. 506; 16 L. ed. 169. * 
 
 3 See ante, p. 84. 
 
 [130]
 
 FEDERAL SUPREMACY BY HABEAS CORPUS. 131 
 
 officers, and this practice was not stopped until 1872 when, in 
 Tarble's case/ the federal Supreme Court held this to be beyond 
 their power. In the opinion which he rendered in this case, 
 Justice Field, after pointing out the distinct and independent 
 character of the government of the United States, proceeds: 
 " 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 
 supremacy 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, in the 
 regulation 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. 
 . . . No interference with the execution of this power of the 
 National Government in the formation, organization and govern- 
 ment of the armies by any state officials could be permitted with- 
 out greatly impairing the efficiency, if it did not utterly destroy, 
 this branch of the public service. . . . State judges and state 
 courts, authorized by laws of their States 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." B 
 
 U. S. v. Tarble (13 Wall. 397; 20 L. ed. 597). 
 
 5 Chief Justice Chase dissented in this case. In the course of hi8 opinion 
 he said : " I have no doubt of the right of a State to inquire into the juris- 
 diction 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
 
 132 UNITED STATES COXSTITUTIOXAL LAW. 
 
 Here again, as in the Davis ease, the point at issue narrowed 
 itself down to the question whether or not state agencies should 
 be recognized to have a power which might, should the States 
 see fit, be so exercised as seriously to embarrass the Xational 
 Government in the performance of its constitutional duties. The 
 strict application of the doctrine of a divided sovereignty would 
 have led in both cases to a constitutional impasse. But in these 
 as in other eases the federal Supreme Court compelled the States 
 in the exercise of their powers to subordinate themselves to the 
 requirements of national convenience and necessity. 
 
 This case settled once for all the principle that it is a snffi- 
 eient return to a writ of habeas corpus issued by a state court 
 that the party is in custody under claim or color of federal 
 authority derived from either a statute or judicial process. 
 
 69. Issuance of the Writ by Federal Courts. 
 
 Instead of submitting to interference by the States with the 
 exercise of their powers, the federal courts have, especially of 
 recent years, again and again, on writs of habeas corpus, removed 
 from state custody persons charged with offenses against the 
 peace of the States. 
 
 The Judiciary Act of 1789 gave to the federal court authority 
 to issue the writ of habeas corpus only as to persons in jail under 
 or by color of authority of the United States. Xo provision waa 
 thus made for the release by federal courts of persons in custody 
 by order of the authorities of a State. 
 
 ccnrt 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 ths 
 Judiciary Act; net 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 imprisonment or detention, without the sentence 
 of *ny court whatever, by an officer of the United States. ... 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 
 m a large class of cases, and, I am thoroughly persuaded, was never within 
 the contemplation of the Convention which framed or the people who adopted 
 the CoBstrtntion. That instrument expressly declares that th privilege of 
 the will of habeas corpus shall not be siispended, unless when, in va-,ei of 
 rebellion or invasion, the public safety may require it."
 
 FEDERAL SITIIEMACY BY HABEAS CORPUS. 133 
 
 The " Force " Act of 1S33 gave to the federal courts the power 
 to issue writs of habeas corpus " in all cases of a prisoner or 
 prisoners in jail or confinement where he or they shall be com- 
 mitted or connned, on or by any authority or law for any act 
 done, or omitted to be done, in -pursuance of a law of the United 
 States, or any order, process or decree of any judge or court 
 thereof." 
 
 In 18-i2 this authority of the federal courts was further 
 broadened by the provision that the writ might iasue when a 
 subject or citizen of a foreign State, domiciled therein, is in 
 custody because of an act done or omitted under an alleged right, 
 title, authority, privilege, protection, or exemption claimed under 
 the commission or order or sanction of any foreign State, or 
 under color thereof, the validity or effect of which is dependent 
 upon the law of nations. 
 
 This act of 1842 grew out of the McLeod case. 6 McLeod, a 
 British subject, was arrested and indicted for murder in Xew 
 York, alleged to have been committed by him while one of a force 
 of British troops which, during the Canadian rebellion of 1837, 
 made an attack upon the steamer " Caroline " while moored in 
 Xcw York waters. The British government avowed itself re- 
 sponsible for the act, as a necessary act of war, the steamer being 
 engaged in carrying munitions of war to the Canadian insurgent 
 forces, and demanded of the United States Government McLeod's 
 immediate release. This the Federal Government requested of 
 the Xew York authorities, but was met with a refusal, and found 
 itself unable to proceed further because of the lack of jurisdic- 
 tion of the federal courts to issue the necessary writ of habeas 
 corpus. 
 
 Tn 1SG7 the jurisdiction of the federal courts was still further 
 widened by the provision that the writ might issue " in all cases 
 where any person may be restrained of his or her liberty in vio- 
 lation of the Constitution or any treaty or law of the United 
 States." T 
 
 "People v. McLeod (1 Hill, 377). 
 
 * The federal courts also have authority to i~eue the writ where it is neces- 
 sary to bring a person into court to testify, or where a person is in custody
 
 134 UNITED STATES CONSTITUTIONAL LAW. 
 
 Armed with the authority thus given, especially by the act of 
 1867, the federal courts have repeatedly taken from the custody 
 of the States persons charged therein with offenses against state 
 law. Even the lowest of the federal courts have not hesitated to 
 exercise the power as to persons held for trial before the highest 
 courts of the United States. 
 
 In the case of Thomas v. Loney 8 the Supreme Court sustained 
 the action of the lower federal court in releasing from custody 
 by habeas corpus a prisoner who had been arrested by state 
 authority for alleged perjury committed before a notary public 
 of the State in the case of a contested election of a member of the 
 House of Representatives of the United States. li The power of 
 punishing a witness," said the Supreme Court, u for testifying 
 falsely in a judicial proceeding belongs peculiarly to the govern- 
 ment in whose tribunals that proceeding is had. It is essential 
 to the impartial and efficient administration of justice in the 
 tribunals of the nation that witnesses should be able to testify 
 freely before them, unrestrained by legislation of the State, or 
 by fear of punishment in the state courts. The administration 
 of justice in the national tribunals would be greatly embarrassed 
 and impeded if a witness testifying before a court of the United. 
 States or upon a contested election of a member of Congress, 
 were liable to prosecution and punishment in the courts of a 
 State upon a charge of perjury preferred by a disappointed suitor 
 or contestant, or instigated by local passion or prejudice. A 
 witness who gives his testimony, pursuant to the Constitution and 
 laws of the United States, in a case pending in a court or other 
 judicia^ tribunal of the United States, whether he testifies in the 
 presence of that tribunal, or before any magistrate or officer 
 (either of the nation or of the State) designated by Act of Con- 
 gress for the purpose, is accountable for the truth of his testi- 
 mony to the United States only; and perjury committed in so 
 
 under or by color of the authority of the United States, or is committed for 
 trial before some court thereof. 
 
 8 134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949.
 
 FEDERAL SUPREMACY BY HABEAS CORPUS. 135 
 
 testifying is an offense against the public of the United States, 
 and within the exclusive jurisdiction of the courts of the United 
 States." 
 
 70. The Neagle Case. 
 
 The leading case, however, and, in some respects, the most 
 extreme, in upholding the power of the federal courts in the 
 matter of the issuance of writs of habeas corpus to state author- 
 ities is that of Re Xeagle. In that case it was held that without 
 express statutory authorization, the general authority of the 
 President to see that the laws of the Union are faithfully exe- 
 cuted empowered him to appoint a deputy marshal to protect a 
 federal judge whose life was threatened; and that upon such 
 deputy being arrested and brought to trial in a state court upon 
 the charge of murder for a homicide committed while acting 
 within the line of the duty thus assigned him, he was entitled 
 to release on habeas corpus issued by a federal judge. In this 
 case the objection was raised that inasmuch as there was no fed- 
 eral statute expressly authorizing such protection as Xeagle had 
 been instructed to give, he could not be said, in the language of 
 the act of 1867, to be " in custody for an act done or omitted 
 in pursuance of a law of the United States." To this Justice 
 Miller, who rendered the majority opinion of the Supreme Court, 
 replied : " In the view we take of the Constitution of the United 
 States, any obligation fairly and properly inferable from that 
 instrument, 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 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 pro- 
 tecting 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. . . . We do not 
 believe that the government of the United States is thus ineffi- 
 
 135 U. S. 1 ; 10 Sup. Ct. Rep. 658 ; 34 L. ed. 55.
 
 136 UNITED STATES CONSTITUTIONAL LAW. 
 
 cient, or that its Constitution and laws have left the high officers 
 of the government so defenseless and unprotected." w 
 
 71. Writ Issued Only when Imperative. 
 
 The Supreme Court of the United States, though uniformly 
 affirming the doctrine that the federal courts hjjve power, by writ 
 of habeas corpus, to inquire into the cause of the restraint of the 
 liberty of any person by a State when the justification of 
 federal authorization or immunity is set up for the act com- 
 plained of, lias, however, repeatedly, and of recent years with 
 increasing emphasis, laid down the doctrine that the federal 
 courts should not, except in cases of peculiar urgency, exercise 
 that power, but should leave such persons to pursue their remedy 
 by writ of error to the federal Supreme Court, after the adjudi- 
 cation of their cases in the States' highest courts. 
 
 In Ex parte Royall, 11 decided in 1886, the Supreme Court of 
 the United States, while upholding the constitutional power of 
 Congress to grant to the federal courts jurisdiction to issue writs 
 of habeas corpus in all cases where persons, in alleged violation 
 of the Constitution, are in custody of a state court, took pains 
 to emphasize the fact that the jurisdiction is to be exercised at 
 the discretion of the court, and, in the case at bar, sustained the 
 
 10 Chief Justice Fuller and Justice Lamar diseented from the judgment in 
 the Xeagft case upon the ground that the President had had no constitutional 
 power, in the absence of congressional authority, to provide, through the 
 Attorney-General, a guard for Justice Field. Why, they asked, if the Presi- 
 dent had this power, had it been necessary to pass various habeas corpus acts? 
 " Why could not President Jackson, in 1833, as the head of the. Executive 
 Department, invested with the power and charged with the duty to take care' 
 that the laws be faithfully executed and to defend the Constitution, have 
 enforced the collection of the federal revenues in the Port of Charleston, and 
 have protected the revenue officers of the government against any arrest made 
 under the pretensions of the state authority with the aid of the act of 1833? 
 Why, in 1842, when the third Habeas Corpus Act was parsed, .could not the 
 President of the United States by virtue of the same self-existing powers 
 of the Executive, together with those of the Judicial Department, have en- 
 forced the international obligations of the government without any such act 
 of Congress? " 
 
 U 117 U. S. 241; 6 Sup. Ct. Rep. 734; 29 L. ed. 868.
 
 i:ri!KMACY jjv II.vDK.vs Tourus. 137 
 
 refusal of the Circuit Court to issue the writ. " We are of 
 opinion,'' said the court, '' that while the Circuit Court has the 
 puwer to do so, and may discharge the accused in advance of his 
 trial if he is restrained of his liberty in violation of the Xational 
 Constitution it is not bound in every case to exercise such a 
 power immediately upon application for the writ We cannot 
 suppose that Congress intended to compel those courts, by such 
 means, to dra^v to themselves, in the first instance, the control 
 of all criminal prosecutions commenced in state courts exercising 
 authority within the same territorial limits, where the accused 
 claims that he is held in custody in violation of the Constitution 
 of the United States. The injunction to hear the ease summarily 
 and thereupon. * to dispose of the .party as law and justice require ' 
 does not deprive the court of discretion as to the time and the 
 mode in which it will exercise the powers conferred upon it. 
 That discretion should be exercised in the light of the relations 
 existing under our system of government, between the judicial 
 tribunals of the Union and of the States, and in recognition of 
 the fact that the public good requires that those relations be not 
 disturbed by unnecessary conflict between courts equally bound 
 to regard and protect rights secured by the Constitution." 
 
 Frum the quotations which have just been made it is apparent 
 that in the issuance of the writ, a distinction is made between 
 those cases in which its issuance is necessary to protect the Gen- 
 eral Government in the execution of its functions, and those in 
 which the question is merely one of the petitioner's right to 
 liberty. In this latter class of cases, " if," the court say, " it is 
 apparent upon the petition that the writ, if issued, ought not, 
 on principles of law and justice, to result in the immediate dis- 
 charge of the accused from custody, the court is not bound to 
 award it a< >ou as the application is made." The federal courts, 
 the opinion goes on to declare, are to assume that the state courts 
 will neither do injustice nor disregard the settled principles of 
 federal constitutional law. If. however, they should do so, the 
 petitioner still has the privilege of taking his case by writ of
 
 138 UNITED STATES CONSTITUTIONAL LAW. 
 
 error from the highest state court to the Supreme Court of the 
 United States. 12 
 
 The act of 1867 provides that, upon return of the writ of 
 habeas corpus, " the court or justice, or judge, shall proceed in 
 a summary way to determine the facts of the case, by hearing 
 the testimony and arguments, and thereupon to dispose of the 
 party as law and justice require." 13 
 
 It would not appear to be certainly settled just what is the 
 facts to be determined and just what the action is to be taken by 
 the federal court in all cases where the party suing out the writ 
 claims that the act charged against him in the state court was 
 done under the authority of the United States or in pursuance of a 
 process of its courts. When, by means of the writ, the federal 
 court has brought the accused under its control, is it its duty in 
 all cases to determine whether the accused was an officer of the 
 United States and further whether he had acted in good faith, 
 and within the scope of his federal authority, and therefore en- 
 titled to a discharge; and, if not, to impose such penalty as the 
 law and facts require? Or is it the duty of the federal court, 
 where the question is not as to the federal authority which is set 
 up, but whether in fact that authority has been overstepped, and 
 there is conflicting evidence as to this, is it the duty of the federal 
 court to remand the party to the state court for the determination 
 of the question? ~-_ 
 
 12 For later refusals of the federal courts to issue the writ of habeas corpus 
 to persons in the custody of state courts in alleged violation of the Con- 
 stitution, see Tinsley v. Anderson (171 U. S. 101; 18 Sup. Ct. Rep. 805; 
 43 L. ed. 91) and United States ex rel. Drury v. Lewis (200 U. S. 1 ; 26 
 Sup. Ct. Rep. 229; 50 L. ed. 343). In the first of those cases the Supreme 
 Court reversed the judgment of the lower court, and dismissed the writ of 
 habeas corpus which it had issued, and remanded the accused to the custody 
 of the state authorities. In Ex parte Wood (155 Fed. 190), decided in 1907, 
 habeas corpus was granted by a federal court for the release of one who was 
 charged in a state court with a violation of a state law, the enforcement of 
 which had previously been enjoined by a federal court because unconstitu- 
 tional. 
 
 is Rev. St., Sec. 761.
 
 FEDERAL SUPREMACY BY HABEAS CORPUS. " 139 
 
 The opinions in the Ableman and Tarble cases, and the reason- 
 ing of the court in Tennessee v. Davis, would seein to indicate 
 that the former action is the correct one, namely, that the federal 
 court should not remand the accused to the state court, but itself 
 determine the fact whether he has acted in excess of his federal 
 authority. In United States ex rel. Drury v. Lewis, 14 however, 
 the court accepted the alternative doctrine, and remanded the 
 accused for trial to the state court, the evidence being conflicting 
 as to whether or not in fact he had exceeded his federal authority. 
 
 The court, quoting from Baker v. Grice 15 say ; " It is an 
 exceedingly delicate jurisdiction given to the federal courts by 
 which a person under an indictment in a state court, and subject 
 to its laws, may, by the decision of a single judge of the federal 
 court, upon a writ of habeas corpus, be taken out of the custody 
 of the officers of the State, and finally discharged therefrom, and 
 thus a trial by the state courts of an indictment found under the 
 laws of a State be finally prevented. Cases have occurred of so 
 exceptional a nature that this course has been pursued." 16 In 
 the case at bar, however, the court find that there were not pres- 
 ent the exceptional circumstances justifying this federal inter- 
 vention, and that the evidence was conflicting as to whether the 
 act charged was done in performance of a federal authority. This 
 being so, the court declare, it is the proper province of the state 
 court and not of the federal tribunal to determine this question. 
 
 The court in this case, in the position which it assumed, cites 
 no prior cases exactly in point. It does indeed refer to earlier 
 adjudications, but none of these had reference to instances in 
 which persons in custody of state authorities sought release 
 upon the claim that the acts charged against them were done 
 in the course of official duty. In each instance the petitioners 
 based their claim to release upon the ground that the imprison- 
 ment by the state authorities was in violation of their individual 
 rights under the Constitution, laws or treaties of the United 
 
 " 200 U. S. 1 ; 26 Sup. Ct. Rep. 229 ; 50 L. ed. 343. 
 is 109 U. S. 284; 18 Sup. Ct. Rep. 323; 42 L. ed. 748. 
 
 "Citing Re Loney (134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949) ; 
 Re Xeagle (135 U. S. 1 ; 10 Sup. Ct. Rep. 658; 34 L. ed. 55).
 
 1-iO' UNITED STATES COXSTITUTIOXAL LAW. 
 
 States. In such cases there was of course no reason based upon 
 federal governmental supremacy and efficiency, why the federal 
 courts should not, in their discretion, leave the petitioners to set 
 up such defense as they might have in the state courts, and on 
 writ of error therefrom to the federal Supreme Court. 1 ' 
 
 IT The law regarding the jurisdiction of the state courts over federal officers 
 is discussed in a valuable article by Mr. James L. Bishop in the Columbia 
 Law Review for May, 1009, entitled " The Jurisdiction of State and Federal 
 Courts over Federal Officers." Mr. Bishop suggests that the maintenance 
 of the freedom of federal authority from state interference, and at the same 
 time the preservation of the proper powers of the state courts could be 
 secured by extending the right of removal of cases from the state to federal 
 courts, now given under Section 643 of the Revised Statutes to federal revenue 
 officers, to all officers acting under authority of the United States; and that 
 the issuance of the writ of habeas corpus by federal courts be limited so as 
 to be merely ancillary to such right of removal.
 
 CHAPTER IX. 
 
 THE MAIXTEXAXCE OF FEDERAL SUPREMACY; THE INDEPEND- 
 ENCE OF FEDERAL COURTS FROM STATE INTERFERENCE. 
 
 72. Independence of Federal Authorities. 
 
 A federal court having assumed jurisdiction over a person or 
 piece of property, the state authorities are excluded from any 
 interference therewith or from in any way assuming jurisdiction 
 therein. This principle was violated by the authorities of the 
 State of Wisconsin in the case of Ableman v. Booth 1 in annulling 
 the proceedings of a commissioner of the United States and dis- 
 charging a prisoner who had been committed by the commis- 
 sioner for an offense against a federal law. The Supreme Court 
 of the United States declared the impropriety of these actions in 
 the following language: " The supremacy of the state courts over 
 the courtd of the United States, in cases coming under the Con- 
 stitution and laws of the United States is now for the first time 
 asserted and acted upon in the supreme court of a State." Pro- 
 testing against this action, the opinion declares: "... We 
 do not question the authority of state court, or judge, who is au- 
 thorized by the laws of the State to issue the writ of habeas corpus, 
 to issue it in any case where the party is imprisoned within its 
 territorial limits, provided it does not appear, when the applica- 
 tion is made, that the person imprisoned is in custody under the 
 authority of the United States. The court or judge has a right 
 to inquire, in this mode of proceeding, for what cause and by 
 what authority the prisoner is confined within the territorial 
 limits of the state sovereignty. But, after the return is made, 
 and the state judge or court is judicially apprised that the party 
 is in custody under the authority of the United States, they 
 can proceed no further." 
 
 That a state court has no power to issue a mandamus or writ of 
 certiorari to a federal officer is not questioned.' 
 
 121 How. 506. 
 
 2 M'Clung v. Silliman, 6 Wh. 598 ; 5 L. ed. 340 : Kendull v. U. S., 12 Pet. 
 524; 9 L. ed. 1181; U. S. v. Schurz (102 U. S. 378; 20 L. ed. 17). 
 
 [141]
 
 142 UNITED STATES CONSTITUTIONAL LAW. 
 
 The inability of the state courts by injunction or otherwise to 
 control proceedings in federal courts is declared in Weber v. Lee 
 Co., 3 United ,States v. Keokuk, 4 and Supervisors v. Durant. 5 This 
 inability arises not so much from the supremacy of the federal 
 courts as because the state and federal judicial systems are inde- 
 pendent of one another. In Weber v. Lee Co. the court say : " State 
 courts cannot enjoin the process of proceedings in the circuit 
 [federal] courts; not on account of any paramount jurisdiction 
 in the latter, but because they are entirely independent in their 
 sphere of action." The same reason is given in United States v. 
 Keokuk. 
 
 73. Injunctions from Federal to State Courts. 
 
 It is, however, not quite correct to say that the two judicial 
 systems are '' entirely independent in their sphere of action." It 
 is true that the state courts are wholly without power in any way 
 to control the operations of the federal courts, but the reverse is 
 not true. As has already appeared, a writ of error lies in certain 
 cases from the federal -Supreme Court to the state courts, and, 
 when removal of a case is sought, the federal courts may issue 
 a writ of certiorari to the state court demanding a copy of the 
 record, and the clerk of the state court refusing compliance with 
 this demand becomes, under an act of Congress, liable to fine or 
 imprisonment. Furthermore the federal courts possess the right 
 to protect their own jurisdictional rights or the rights of parties 
 to suits before them by restraining orders forbidding proceedings 
 in the state courts. 
 
 It is true that, actuated by a desire to preserve so far as possi- 
 ble the independence of the state judiciaries Congress, by act of 
 1793, 6 which is still in force, has provided that " the writ of in- 
 junction shall not be granted by any court of the United States 
 to stay proceedings in any court of a State, except in cases where 
 such an injunction may be authorized by any law relating to pro- 
 ceedings in bankruptcy." But, in other than cases in bankruptcy, 
 
 36 Wall. 210; 18 L. ed. 781. 
 6 Wall. 514; 18 L. ed. 933. 
 69 Wall. 415; 19 L. ed. 732. 
 Rev. St., Sec. 720.
 
 INDEPENDENCE OF FEDERAL, COUKTS. 143 
 
 the federal courts have not hesitated to enjoin proceedings in state 
 courts where this has been necessary to preserve their own juris- 
 dictional rights, or to protect individuals in their federal rights. 
 Thus in Dietzsch v. Huidekoper 7 it was held that the prohibition 
 of Section 720 of the Revised Statutes would not prevent a fed- 
 eral court from issuing an injunction restraining proceedings 
 on a replevin bond, the state suit being based on a judgment 
 obtained in a state court after the defendant had removed the 
 case to the federal courts and there obtained judgment in his 
 favor. The court said : " The action on the replevin bond in that 
 [the state] court was simply an attempt to enforce the judgment 
 of that court in the replevin suit, rendered after its removal to 
 the United States circuit court, and after the state court had lost 
 all jurisdiction over the case. If no judgment had been rendered 
 in the state court against the plaintiffs in the replevin suit, no 
 action could have been maintained upon the replevin bond. The 
 bond took the place of property seized in replevin, and a judg- 
 ment upon it was equivalent to an actual return of the replevied 
 property. The suit upon the replevin bond was, therefore, but 
 an attempt to enforce a pretended judgment of the state court, 
 rendered in a case over which it had no jurisdiction, but which 
 had been transferred to and decided by the United States Circuit 
 Court, by a judgment in favor of the plaintiffs in replevin. The 
 bill [for injunction] in this case was, therefore, ancillary to the 
 replevin suit, and was in substance a preceding in the federal 
 court to enforce its own judgment by preventing the defeated 
 party from wresting the replevied property from the plaintiffs in 
 replevin, who, by the judgment of the court, were entitled to it, 
 or what was in effect the same thing, preventing them from en- 
 forcing a bond for the return of the property to them. A court 
 of the United States is not prevented from enforcing its own judg- 
 ments by the statute which forbids it to grant a writ of injunction 
 to stay proceedings in a state court." ' 
 
 7103 U. S. 404; 26 L. ed. 497. 
 
 8 In Mississippi Railroad Commission v. Illinois Central R. Co. (203 U. S. 
 335; 27 Sup. Ct. Rep. 90; 51 L. ed. 209) it was held that the commission 
 wa? not a court within the meaning of Rev. St., Sec. 720.
 
 144 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Martin v. Hunter's Lessee, a case, it Avill be remembered, 
 arising out of the refusal of the state court to obey a mandate from 
 the federal tribunal, the court did not find it necessary to decide 
 whether or not the federal court had the power to issue a man- 
 damus to the Virginia court to enforce its former judgment. In- 
 stead, the court simply reversed the judgment of the Virginia 
 Court of Appeals and affirmed that of the lower court. Justice 
 Johnson rendered a concurring opinion in which he said : " The 
 presiding judge of the state court is himself authorized to issue 
 the writ of error, if he will, and thus give jurisdiction to the Su- 
 preme Court ; and if he thinks proper to decline it, no compulsory 
 process is provided by law to oblige him. The party who im- 
 agines himself aggrieved is then at liberty to apply to a judge of. 
 the United States, who issues the writ of error, which (whatever 
 its form) is, in substance, no more than a mode of compelling 
 the opposite party to appear before this court and maintain the 
 legality of his judgment obtained before the state tribunal. An 
 exemplification of the record is the common property of every one 
 who chooses to apply and pay for it, and thus the case and the 
 party are brought before us." 
 
 After pointing out that the court disavowed all intention to de- 
 cide as to the right to issue a compulsory process to the state 
 courts, Justice Johnson, however, goes on to argue that the federal 
 court might properly issue a mandamus only to the lower federal 
 courts, and that in case a state court, whose decrees might be re- 
 versed by the federal court, should refuse to alter its action in 
 obedience thereto, the federal Supreme Court, under authority 
 granted by the Judiciary Act, where the case had once before been 
 remanded, could itself proceed to a final decision of the case and 
 
 In French v. Hay (22 Wall. 250; 22 L. ed. 857) the court say: "The 
 piohibition in the Judiciary Act against the granting of injunctions by the 
 courts of the United States touching proceedings in state courts has no ap- 
 plication here. The prior jurisdiction of the court below took the case 
 out of the operation of that provision. If the state courts should persist 
 in proceeding a thing not to be expected the wrong will be on the part 
 of those tribunals and not of the court below." 
 
 9 1 Wh. 304 ; 4 L. ed. 97.
 
 INDEPENDENCE OF FEDEEAL Conns. 
 
 the awarding of a judgment thereupon. 10 By this means and by 
 a liberal use of the writ of injunction and that of habeas corpus 
 ad subjeciendum, Justice Johnson declared that the constitu- 
 tional revising power might be fully secured to the United Stales 
 without ever resorting to compulsory or restrictive processes upon 
 the state tribunals. 
 
 The circumstances under which the federal courts will issue 
 injunctions restraining state officials from enforcing, or bringing 
 suits in the state courts to enforce a state act which is alleged to 
 be in contravention of the federal Constitution will be further con- 
 sidered in chapter LIV, in which the suability of the State is dis- 
 cussed. 
 
 The federal courts have not been given, nor could they constitu- 
 tionally be given, the jurisdiction to issue writs of mandamus to 
 compel the performance by state officials of state duties. 11 The 
 constitutional power of Congress to authorize the federal courts, 
 by writs of mandamus, to compel the performance of duties, 
 whether by state or federal officials, imposed by federal law would 
 seem to be beyond question, though Congress has not yet seen fit to 
 grant to these courts the power except as ancillary to jurisdiction 
 already otherwise obtained. 12 It is to be remembered, however, 
 that Congress cannot, without the consent of the State, impose 
 upon its functionaries the performance of federal duties. Where, 
 however, the act ordered is one unconnected with his official state 
 duties, the fact that an individual is a state functionary would 
 not exempt him from the mandatory power of the federal courts. 
 
 74. State Restrictions upon the Right of Removal of Suits 
 
 from State to Federal Courts. 
 
 By various acts of Congress rights have been granted to de- 
 fendants to remove into federal courts civil actions begun in state 
 
 10 By Act of 1867 (Rev. Mat.. Sec. 709), the Supreme Court was given this 
 power without reference to whether or not the case had been previously 
 remanded. That act provides, ' the Supreme Court may, at their discretion, 
 prrceed to a final decision and award execution, or remand the case to the 
 inferior court." 
 
 11 Prig-,' v. Pennsylvania (16 Pet. 539; 10 L. ed. 1060). 
 
 12 U. S. v. Circuit Court (126 Fed. Eep. 1GD). 
 
 10
 
 146 UNITED STATES CONSTITUTIONAL LAW. 
 
 courts, where there is a diversity of citizenship of the parties. 
 This right, which will be more fully discussed in a later chapter, 13 
 is granted, not that federal supremacy may be maintained, but 
 that an impartial tribunal may be secured in 'suits in which citi- 
 zens of different States are parties. One important question, 
 however, with reference to the maintenance of federal authority, 
 has arisen in connection with the right of removal based upon 
 diversity of citizenship, and this is as to the authority of the States 
 to prevent foreign corporations from exercising this federal privi- 
 lege by making it a condition precedent to their being allowed to 
 enter the State or to continue to do business therein that, when 
 sued by a citizen of the State, they will not have the cause re- 
 moved into the federal courts. Here it is apparent that thje ques- 
 tion is not so much the right of the State to interfere with the 
 exercise by a federal court of its jurisdiction when obtained, as 
 it is to prevent that jurisdiction from being invoked. 
 
 That States cannot put restrictions upon the removal of cases 
 from their courts to federal tribunals any more than they can 
 prevent it was declared in a case arising under a statute of the 
 State of Wisconsin which provided that insurance companies of 
 other States desiring to do business within its limits should sign 
 a written agreement that they would not remove to the federal 
 courts suits brought against them in the State's courts. One of 
 these companies, having removed a case to the federal courts not- 
 withstanding its agreement not to do so, the "Wisconsin courts, 
 ignoring the fact of its removal, proceeded with the case and ren- 
 dered judgment against the company. The Supreme Court of the 
 United States, upon appeal to it, declared the judgment void upon 
 the ground that the agreement itself and the statute requiring it 
 were illegal, as no one could be compelled to bind himself in 
 advance not to exercise a right guaranteed to him by the Consti- 
 tution any more than he could barter away his life or freedom. 14 
 
 When, however, in a later case, the Supreme Court of the 
 United States was asked to issue an injunction forbidding the 
 
 is See Chapter L. 
 
 "Home Insurance Co. v. Morse (20 Wall. 445; 22 L. .ed. 365).
 
 INDEPENDENCE OF FfiDEBAL COUKTS. 147 
 
 Secretary of State of Wisconsin to revoke the license of an insur- 
 ance company that had violated its agreement not to remove, that 
 court held that it could not thus control the action of a state 
 official, even though his action was apparently based upon an im- 
 proper ground. The court said : " The argument that the revoca- 
 tion in question is made for an unconstitutional reason cannot be 
 sustained. The suggestion confounds an act with an emotion or 
 a mental proceeding which is not the subject of inquiry in deter- 
 mining the validity of a statute." 15 In other words it was held 
 that the right both of granting and of revoking a license to a for- 
 eign corporation to do business within a State belonging to the 
 proper officer of that State, it was not within the competence of a 
 federal court to determine whether that power was exercised for 
 a good or bad reason or for no reason at all. 
 
 But when, in a still later case, there was drawn into question 
 the operation of a statute of Iowa which declared that upon the 
 violation by a foreign insurance company of its agreement not to 
 remove a case to the federal courts, its license should thereby be- 
 come void, the federal Supreme Court held that the violation of 
 an illegal agreement could not of itself operate as a revoca- 
 tion of the company's license. If revoked at all it would have to 
 be by the act of a competent state official, and not, ipso facto, by 
 the exercise of a constitutional right. 10 
 
 This entire subject was reviewed in Security Mutual Life In- 
 surance Co. v. Prewitt 17 in which it was held that a State may 
 by statute provide that if a foreign insurance company shall re- 
 move to a federal court a case which has been commenced in a 
 state court, the license of such company to do business within the 
 State shall thereupon be revoked. In its opinion the court say: 
 " It is admitted that a State has power to prevent a company from 
 coming into its domain, and that it has the power to take away 
 the right to remain after having been permitted once to enter, and 
 that right may be exercised from good or bad motives; but what 
 the company denied [in this case] is the right of a State to enact 
 
 is Doyle v. Continental Insurance Co. (94 U. S. 535; 24 L. ed. 148). 
 
 16 Barren v. Burnside (121 V. S. 186; 7 Sup. Ct. Rep. P31 ; 30 L. ed. 915). 
 
 "202 U. S. 246; 26 Sup. Ct. Rep. 619; 50 L. ed. 1013.
 
 .148 UNITED STATES CONSTITUTIONAL LAW. 
 
 in advance that if a company remove a case to a federal court, its 
 license shall be revoked, ^'e think this distinction is not well 
 founded. The truth is that the effect of the statute is simply tc 
 place foreign companies upon a par with the domestic ones doing 
 business in Kentucky. Xo stipulation or agreement being re- 
 quired as a condition for coming into the State and obtaining a 
 permit to do business therein, the mere enactment of a statute 
 which, in substance, says if you choose to exercise your right to 
 remove a case into a federal court, your right to further do busi- 
 ness within the State shall cease and your permit shall be with- 
 drawn, is not open to any constitutional objection. The reasoning 
 in the Doyle case we think is good." 3 
 
 Prom the foregoing cases it is apparent that no abandonment 
 is really made of the principle that the States are constitutionally 
 incompetent to interfere with or prohibit the exercise of a fed- 
 eral right. Corporations chartered in one State and doing busi- 
 ness in another State may exercise the right of removal given 
 them by the federal statutes without reference to what the laws 
 of the States in which they are doing business may provide, and 
 this they may do even if they have contracted with those state 
 authorities not to exercise these rights. The fact that the state 
 authorities, in the exercise of a power acknowledged to be pos- 
 sessed by them, withdraw, or threaten to withdraw, a privilege 
 which they have granted, furnishes no ground for federal relief. 
 There is, to be sure, a causal nexus between the exercise of the 
 federal right of removal and of the State's right to withdraw its 
 permission to the foreign corporation to do business within the 
 State's limits. But, legally speaking, there is no connection. Each 
 is the exercise of an independent right. The case is not similar 
 to one where the State interferes with or hinders the operation 
 of a federal agency, as, for example, the taxation of its franchise. 
 In the cases above considered, no attempt is made by the States to 
 declare what cases shall and what cases shall not be removed into 
 the federal courts, or in any way to interfere with the exercise 
 
 is A strong dissenting opinion, concurred in by Justice Harlan, was filed 
 in this case by Justice Day.
 
 IXDEPEXDKXCK OF FzDEHAI. COUETS. 149 
 
 of their jurisdiction, by those courts after the cases have been re- 
 moved into them. Whenever this has been attempted the federal 
 courts have prevented it. Thus it has been repeatedly declared 
 that the jurisdiction conferred upon the federal courts cannot be 
 in any way abridged or impaired by the statutes of a State. 19 
 
 So, also, it is held that the proper petition and bond having 
 -been filed, a case is considered removed even though the state court 
 may refuse to make an order of removal, and may in fact proceed 
 with the trial of the cause.' In such cases the defendant may, if 
 he choose, defend the case in the state court, and after final judg- 
 ment obtain a writ of error from the United States Supreme 
 Court, and in so doing he does not forfeit his right to defend in 
 the lower federal court. The circuit court can issue a writ of 
 certiorari to the state court demanding a copy of the record in 
 case and the clerk refusing to furnish it becomes liable under a 
 federal act to fine or imprisonment. 21 
 
 is Hyde v. Stone (20 How. 170; 15 L. ed. 874) ; Smyth v. Ames (169 U. S. 
 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819); Mercer Co. v. Cowles (7 Wall. 
 11^; 19 L. ed. 86) ; Lincoln Co. v. Liming (133 U. S. 529; 10 Sup. Ct. Rep. 
 363; 33 L. ed. 766) ; Chicot Co. v. Sherwood (148 U. S. r>20; 13 Sup. Ct. 
 Rep. 695; 37 L. ed. 546); Barrow S. S. Co. v. Kane (170 U. S. 100; 18 
 Sup. Ct. Rep. 526; 42 L. ed. 964). 
 
 20 Home L. Insurance Co. v. Dunn (19 Wall. 214; 22 L. ed. 68) ; Marshall 
 v. Holmes (141 U. S. 589; 12 Sup. Ct. Rep. 62; 35 L. ed. 870) and cases 
 there cited. 
 
 21 Act of Mch. 3, 1875. Whether Congress has the power thus to punish 
 the refusal of the state official to perform this duty has not received judicial 
 determination. If, however, we judge by analogy from the decision in Ex 
 prir-tr Siebold (100 U. S. 371; 25 L. ed. 717), and if the act required is a 
 purely ministerial one, Congress has the power. In Ex pnrte Virginia 1 100 
 V. >. .":>'.! : 'l'i L. ed. 07ti) a judge of a Virginia court had been indicted for 
 a violation of the federal Civil Rights Act of 1875 in that he had excluded 
 negroes from grand and petit juries. The selection of jurors the majority 
 of the court declared to be a purely ministerial act, and, as to the fact 
 that the accused was a state official, said: "We do not perceive how holding 
 an office under a State and claiming to act for the state can relieve the 
 holder from obligation to obey the Constitution of the United States, or 
 to take away the power of Congress to punish his disobedience." Justice Field, 
 in a dissenting opinion concurred in by Justice Clifford, strongly urged that 
 the act of 1875 was unconstitutional in so far as it attempted to govern 
 the selection of jurors in state courts. He argued that the selection of
 
 150 UNITED STATES CONSTITUTIONAL LAW. 
 
 In the recently- decided case of W. U. Telegraph Co. v. Kansas 22 
 the court takes a position which it is somewhat difficult to har- 
 monize with that assumed in the insurance cases. In this case the 
 court held unconstitutional as an interference with interstate 
 commerce a state law exacting from a foreign telegraph corpora- 
 tion, as a condition of being permitted to continue to do a local 
 business within the State, a charter fee of a given per cent of its 
 entire authorized capital stock. The court declare: "The vital 
 difference between the Prewitt case and the one now before us 
 is that the business of the insurance company, involved in the 
 former case, was not, as this court has often adjudged, interstate 
 commerce, while the business of the telegraph company was pri- 
 marily and mainly that of interstate commerce." This is true 
 enough, but the essential fact still remains that the Prewitt case 
 permitted the State to exact of the foreign corporation as a con- 
 dition to its being permitted to do business within the State that 
 it should forego the exercise of a federal constitutional right, 
 whereas, in the later case it was held that the State might not as 
 a condition impose burdens upon the exercise by the foreign corpo- 
 ration of federal right, that of carrying on interstate commerce, 
 which can scarcely be said to be a more important privilege than 
 that involved in the Prewitt case. It would seem, therefore, that 
 the suggestion made by Justice White in his concurring opinion in 
 the later case was a stronger one, namely, that the company having 
 been permitted to enter the State and construct its plant there, 
 the onerous conditions attempted to be imposed by the State as 
 a condition to its remaining there were confiscatory and, there- 
 fore, wanting in due process of law. 
 
 jurors is a judicial and not a merely ministerial act (quoting Kentucky v. 
 Dennison), and that Congress had no authority over judicial officers of the 
 States in discharge of their duties under State laws. For a fuller dis- 
 cussion of this case see post, p. 189. 
 2230 Sup. Ct. Rep. 190.
 
 CHAPTER X. 
 
 THE FEDERAL CONTROL OF THE FORM OF STATE GOVERNMENTS. 
 
 75. State Autonomy. 
 
 In the foregoing pages the sovereignty of the United States as 
 opposed to, and inconsistent with, the continued sovereignty of ita 
 individual commonwealth members has been sufficiently declared, 
 Whatever doubt there may have been upon this point before the 
 Civil War, the result of that gigantic struggle has left no room 
 for disagreement since, and the subsequent unequivocal assertions 
 of the federal courts have simply registered conclusions that no 
 one could rationally question. 'Starting, then, from this funda- 
 mental fact that, looking at the matter from a purely legal view- 
 point, the individual Commonwealths constitute self-governing 
 but politically subordinate .portions of the United States, we 
 shall now proceed to consider the degree of autonomy secured them 
 under the federal Constitution. This subject we may conveniently 
 divide into two parts. First, we may examine the degree of con- 
 trol that the Federal Government may constitutionally exercise 
 over the form of government that the several States may establish 
 for themselves; and, secondly, the extent to which the General 
 Government may supervise or control the exercise by the States 
 of those powers that are reserved to them. First, then, as to the 
 control that may be constitutionally exercised by the United 
 States over the forms of government of its constituent units. 
 
 Speaking generally it may be said that, providing its govern- 
 ment be republican in form, each State of the Union may establish 
 such governmental organs as it sees fit, and apportion among them 
 its executive, legislative and judicial powers according to its own 
 judgment as to what is expedient and proper. 
 
 
 
 76. Republican Form of Government Defined. 
 
 The federal Constitution provides that " The United States 
 shall guarantee to every State in this Union a republican form 
 
 [151]
 
 152 UNITED STATES CONSTITUTIONAL LAW. 
 
 of government, and 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.'' l 
 
 In form, the- first clause of this section would appear to be for 
 the benefit of the States and to impose a duty upon the Federal 
 Government, and such undoubtedly would be its effect should a 
 foreign power attempt to impose a government of any sort what- 
 ever upon the people of one of the States against their will; or 
 should a domestic revolution result in the establishment in power 
 of a government not sanctioned by law or not freely agreed to by 
 the electorate. In fact, however, as we have already seen, and 
 as will presently be more particularly spoken of, this clause was 
 so interpreted during reconstruction times as to give to the Fed- 
 eral Government for several years an almost unlimited power of 
 control of the domestic affairs of those States that had been in 
 rebellion against its authority. 
 
 It will be noticed that the Constitution does not itself define the 
 term " republican form of government." It has, however, always 
 been an accepted rule of construction that the technical and special 
 terms used in the Constitution are to be given that meaning which 
 they had at the time that instrument was framed. This is but 
 reasonable, for, in default of anything to the contrary, those who 
 drafted the Constitution are to be presumed to have intended the 
 words which they used to have that meaning they knew them to 
 have. For a definition, then, of " republican government " we 
 must discover what in 17ST such a political form was considered 
 to be. Certainly we may say that the governments of the thirteen 
 original States as they existed at the time the Constitution was 
 drafted must have been considered as illustrating the republican 
 type. Furthermore, the Constitutions of all those States which 
 have been admitted to the Union since 1787 must be regarded as 
 having been impliedly declared republican by Congress at the 
 time of the giving of its assent to their entrance into the Union. 
 
 The late Judge Cooley, in his Principles of Constitutional Law? 
 has perhaps defined the term as satisfactorily as anyone. " By a 
 
 lArt. IV, Sec. 4. 
 2 Chapter XI.
 
 FEDERAL CONTROL OF FORM OF STATE GOVERNMENTS. 153 
 
 republican form of government/' lie says, " is understood a gov- 
 ernment by representatives chosen by the people ; and it contrasts 
 on the one side with a democracy, in which the people or com- 
 munity as an organized whole wield the sovereign powers of gov- 
 ernment, and, on the other side, with the rule of one man as 
 King, Emperor, Czar, or Sultan, or with that of one class of men, 
 as an aristocracy." " In strictness," Judge Cooley goes on to say, 
 " a republican government is by no means inconsistent with 
 monarchical forms, for a King may be merely an hereditary or 
 elective executive while the powers of legislation are left exclu- 
 sively to a representative body freely chosen by the people. It is 
 to be observed, however, that it is a republican form of govern- 
 ment that is to be guaranteed ; and in the light of the undoubted 
 fact that by the Revolution it was expected and intended to throw 
 off monarchical and aristocratic forms, there can be no question 
 but that by a republican form of government was intended a 
 government in which not only would the people's representatives 
 make the laws, and their agents administer them, but the people 
 would also, directly or indirectly, choose the executive. But it 
 would by no means follow that the whole body of people, or even 
 the whole body of adult and competent persons, would be admitted 
 to political privileges ; and in any republican .State the law must 
 determine the qualifications for admission to the elective 
 franchise." 
 
 In United States v. South Carolina, 3 a case decided in 1905, 
 an obiter suggestion was made by the court in its majority opinion 
 that a State by assuming the control of the manufacture and dis- 
 tribution of certain commodities, and, especially, by acquiring 
 ;ind undertaking the management of public utilities might thereby 
 lose its republican form of government. To the suggestions thus 
 made no weight can be given. Whether or not a government is 
 republican in form depends not upon the sphere of its activities, 
 but upon the manner in which its functionaries are selected, and 
 the dogrec of their legal responsibility to the people. Thus there 
 M-ould be no difficulty in the most socialistic of States having a 
 
 3199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261.
 
 154 UNITED STATES CONSTITUTIONAL LAW. 
 
 government of the purest republican type. This suggestion to the 
 contrary by the Supreme Court is the first' that the writer has 
 seen. 
 
 77. The Constitutionality of Referendum Laws. 
 
 In the courts of the States, general direct legislation (referen- 
 dum) laws were in a few early cases held unconstitutional on the 
 ground that their effect is to establish a democratic in place of a 
 republican that is, representative form of government. Thus, 
 for example, in Rice v. Foster 4 the court of Delaware declared: 
 "Although the people have the power, in conformity with its pro- 
 visions, to alter the Constitution, under no circumstances can they, 
 so long as the Constitution of the United States remains the para- 
 mount law of the land, establish a democracy or any other than 
 a republican form of government." And this, the court went on 
 to declare, would in effect be done, should the electorate be given 
 a direct legislative power. 5 
 
 In addition to being in violation of the federal Constitution, 
 direct legislation laws of a general character have frequently been 
 held void as in violation of the state Constitutions in that they 
 attempt to del^ate to the people that law-making power which 
 has been intrusted to the legislature. In answer to the point that 
 the law-making power was not thus transferred, but simply the 
 operation of the statutes in question made dependent upon the 
 happening of a particular event, namely, the approving vote of 
 the people, the court of New York, in Barto v. Ilimrod, 6 said: 
 " It is not denied that a valid statute may be passed to take effect 
 upon the happening of some future event, certain or uncertain. 
 But such a statute, when it comes from the hand of the legislature, 
 must be a law in pra'senti to take effect in futuro. . . . The 
 event or change of circumstances on which a law may be made to 
 
 44 Harr. 479. 
 
 5 This case involved only a local option law. Its reasoning, however, applies, 
 and has continued to be applied to general laws. As to local option laws, 
 however, and laws establishing local governments and equipping them with 
 adequate powers, the case may be said to have been overruled. 
 
 4 Seld. 483.
 
 FEDEBAL CONTROL OF FOKM OF STATE GOVERNMENTS. 155 
 
 take effect must be such as in the judgment of the legislature 
 affects the question of the expediency of the law; an event on 
 which the expediency of the law in the judgment of the lawmakers 
 depends. On this question of expediency the legislature must 
 exercise its own judgment definitely and finally. . . . But in 
 the present case no such event or change of circumstances affect- 
 ing the expediency of the law was expected to happen. The 
 wisdom or expediency of the free school law, abstractly considered, 
 did not depend on a vote of the people. If it was unwise or in- 
 expedient before that vote was taken, it was equally so afterward. 
 The event on which the act was made to take effect was nothing 
 else than the vote of the people on the identical question which 
 the Constitution makes it the duty of the legislature itself to 
 decide. . . . The government of the State is democratic, and 
 it is a representative democracy, and in passing general laws, the 
 people act only through their representatives in the legislature." 7 
 
 " While, as indicated, direct legislation laws of a general character have 
 at times been held unconstitutional, special referendal, or local option, laws, 
 have been held valid, the point being taken, among others, that at the 
 time the federal and state Constitutions were adopted, measures of this 
 character were generally recognized as proper, and construed to provide for 
 delegation of local governing, rather than legislative, powers. Thus Cooley, 
 eumming up the argument upon this point, says: "It has already been 
 seen that the legislature cannot delegate its power to make laws; but 
 fundamental as this maxim is, it is so qualified by the customs of our race, 
 and by other maxims which regard local government, that the right of 
 the legislature, in the absence of authorization or prohibition, to create towns 
 and other inferior municipal organizations, and to confer upon them the 
 powers of local government, and especially of local taxation and police regu- 
 lation [liquor laws, etc.] usual with such corporations, would pass unchal- 
 lenged. The legislature in these cases is not regarded as delegating its au- 
 thority, because the regulation of such local affairs as are commonly left 
 to local boards and officers is not understood to belong properly to the 
 State, and when it interferes, as sometimes it must, to restrain and control 
 the local action, there should be reasons of state policy or dangers of local 
 abuse to warrant the interposition." Constitutional Limitations, 7th ed., 
 p. 264. In the earlier cases (Wales v. Belcher, 3 Pick. 508; Godden v. Crump, 
 8 Leigh, 120; Burgess v. Pue, 2 Gill, 11) general referendal laws were 
 sustained, but since the decision of the Delaware court in 1847 (Rice v. 
 Foster, 4 Harr. 479) the general practice, as indicated in the text, haa 
 been to hold them void as a delegation of legislative power.
 
 156 UNITED STATES CONSTITUTIONAL LAW. 
 
 78. Dorr's Rebellion. 
 
 The first instance in which the Federal Government was 
 called upon to construe this guaranty clause was in connection 
 with Dorr's Eebellion in Rhode Island in 1841. The salient facts 
 of this incident were these. The Constitution under which the 
 people of Rhode Island had lived since the separation from Eng- 
 land provided for a very limited suffrage. With the development 
 of more democratic ideas this condition of affairs became very un- 
 satisfactory to those who were thus denied the right to vote. Nu- 
 merous attempts were made to have the Constitution amended, but 
 these were always defeated by the small oligarchy of legal voters 
 who did not wish to share their special privileges with others. 
 Finally, in 184-1, mass meetings of the discontended were held, and, 
 without any instruction or permission from the existing govern- 
 ment, the citizens were directed to elect, by a universal manhood 
 suffrage, delegates to a constitutional convention. This was done, 
 and at that convention a Constitution was framed that later was 
 adopted by a clear majority of the adult male resident citizens of 
 the State. Thereupon, the convention, meeting again, declared: 
 " Whereas, by return of the votes upon the Constitution, it satis- 
 factorily appears that the. citizens of this State, in their original 
 sovereign capacity, have ratified and adopted said Constitution by 
 a large majority; and the will of the people, thus decisively known, 
 ought to be implicitly obeyed and faithfully executed: We do 
 therefore resolve and declare that said Constitution rightfully 
 ought to be, and is, paramount law and Constitution of the State 
 of Rhode Island and Providence Plantations, and we further re- 
 solve and declare for ourselves and in behalf of the people whom 
 Ave represent, that we will establish said Constitution and sustain 
 and defend the same by all necessary means." Attempts were 
 made to put into operation the government provided for in the 
 instrument thus declared in force, Dorr being elected Governor 
 under it. 
 
 All of the above acts, it will be observed, were unsanctioned by 
 any law of the old de jure government. Upon an appeal be ins: 
 made by that government to the Federal Government for aid, the 
 President of the United States recognized that government as the
 
 FEDERAL COXTEOL OP FOBM OF STATE GOVERNMENTS. 
 
 de jure government of the State and took steps to extend the aid 
 that was requested. By this federal executive action two im- 
 portant facts were, established with reference to the '* guaranty " 
 clause of the federal Constitution. The tirst of these was that, 
 according to this clause, the Federal Government was obligated to 
 protect the several States not only against the attempts of foreign 
 powers to impose upon them governments not of their own choos- 
 ing, but against revolutionary action on the part of their own 
 citizens. The second was that it was thus decided that it is not 
 a violation of the provision that a, state government shall be re- 
 publican in form that it rests upon the legal will of a minority of 
 its adult male citizens. In effect it was determined that the old 
 government of Rhode Island, being accepted as republican in form 
 at the time that the State became a member of the Union, it could 
 jiot be changed by any extra-legal means against the desire of those 
 who by the old instrument were given the sole .power of expressing 
 the legal will of the State. This last clause " against the desire 
 of those who by the old instrument were given the sole power of 
 expressing the legal will of the -State/' is advisedly added, for, as 
 repeated instances have shown, the Federal Government has not 
 felt itself obligated under the guaranty clause to see to it that none 
 of the state Constitutions are ever amended or replaced by new 
 instruments except in strict accordance with the provisions gov- 
 erning constitutional changes existing at the time the changes are 
 made. When such changes, even though brought about in a man- 
 ner not formally constitutional, have been accepted as valid by the 
 old governments, the Federal Government has not felt itself obli- 
 gated to interfere. But when, as was the case in Rhode Island, 
 the revolutionary change is resisted by those exercising authority 
 under the old instrument of government, the Federal Government, 
 upon appeal to it for assistance, will almost surely consider itself 
 called upon to recognize and support the old government.
 
 158 UNITED STATES CONSTITUTIONAL LAW. 
 
 79. Luther v. Borden. 
 
 The case of Luther v. Borden, 8 decided by the Supreme Court 
 in 1845, arose out of Dorr's Rebellion. Borden, acting under 
 authority of the old government of Rhode Island, had broken into 
 the house of Luther, who was at the time engaged in an attempt to 
 establish the new government provided for by the Constitution 
 that had been adopted in the popular, extra-constitutional manner 
 spoken of above. Upon being sued in trespass by Luther, Borden 
 justified himself by the plea that he was acting under the authority 
 of the legal government of the State. Luther, upon his side, de- 
 nied the de jure character of that government, and, therefore, its 
 legal competence to empower Borden to exercise the authority he 
 had exercised. 
 
 Upon behalf of Luther it was argued " that, by the fundamental 
 principle of government and of the sovereignty of the people ac- 
 knowledged and acted upon in the United States, and the several 
 States thereof, at least ever since the Declaration of Independence 
 in 1776, the Constitution and frame of government prepared, 
 adopted, and established as above set forth, was, and became 
 thereby, the supreme fundamental law of the State of Rhode 
 Island, and was in full force and effect, as such, when the tres- 
 pass alleged in the plaintiff's writ was committed by the defend- 
 ants. That this conclusion also follows from one of the foregoing 
 fundamental .principles of the American system of government, 
 which is, that government is instituted by the people, and for the 
 benefit, protection and security of the people, nation, or com- 
 munity. And that when any government shall be found inade- 
 quate or contrary to these purposes, a majority of the community 
 hath an indubitable, inalienable right to reform, alter, abolish the 
 same, in such a manner as shall be judged most conducive to 
 the public weal." 9 
 
 7 How. 1; 12 L. ed. 581. 
 
 ' In support of this position, the following propositions were urged : 
 
 1. " That the sovereignty of the people is supreme, and may act in forming 
 government without the assent of the existing government. 
 
 2. That the people are the sole judges of the form of government best 
 calculated to promote their safety and happiness.
 
 FEDERAL CONTROL OF FORM OF STATE GOVERNMENTS. 159 
 
 In behalf of Borden, the defendant in error, Daniel Webster, 
 who was one of the counsel, argued that, granting that the people 
 are the source of political power, the American principle is that 
 they can exercise this power only through their constituted repre- 
 sentatives, and through the votes of properly qualified electors. 
 '' The right to choose a representative/' he declared, " is every 
 man's portion of sovereign power. .Suffrage is a delegation of 
 political power to some individual. Hence the right must be 
 guarded and protected against force or fraud. That is one prin- 
 ciple. Another is, that the qualification which entitles a man to 
 vote must be prescribed by previous laws, directing how it is to be 
 exercised and also that the results shall be certified to some central 
 power so that the vote may tell. We know no other principle. If 
 you go beyond these, you go wide of the American track. . . . 
 Our American mode of government does not draw any power from 
 tumultuous assemblages." 
 
 The question as to which of the two governments was at that 
 time the legal government of the State thus seemed squarely pre- 
 sented to the court. That tribunal, however, did not feel itself 
 obliged to pass upon the point, holding that the power to deter- 
 mine such a matter had been given by the Constitution to Con- 
 gress, and by that body had been handed over, to the extent at 
 least of determining when the Federal GoA'ernment should inter- 
 
 3. That as the sovereign power, they have the right to adopt such form of 
 government. 
 
 4. That the right to adopt necessarily includes the right to abolish, to 
 reform, and to alter any existing form of government, and to substitute 
 in its stead any other that they may judge better adapted to the purposes 
 intended. 
 
 5. That if such a right exists at all, it exists in the States under the 
 Union not as a right of force, but a right of sovereignty, and that these 
 who oppose its peaceful exercise, and not those who support it, are culpable. 
 
 6. That the exercise of this right, which is a right original, sovereign, 
 and supreme, and not derived from any other human authority, may be, 
 and must be, effected in such a way and manner as the people may for 
 themselves determine. 
 
 7. And more especially is this true in the case of the then subsisting govern- 
 ment of Rhode Island, which derived no power from the charter or from 
 the people to alter or amend the frame of government, or to change the 
 basis of representation, or even to propose initiatory measures to that end."
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 fere, to the President. In the case at bar the President had 
 recognized the legality of the old government and the propriety 
 of this decision the court declared it could not consider. 30 
 
 "After the President has acted, and has called out the militia/' 
 continued the court, " is a circuit court of the United States au- 
 thorized 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 majority of the people i 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 dis- 
 charge those who were arrested or detained by the troops in the 
 service of the United States or the government which the Presi- 
 dent is 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 convict is raging, if 
 the judicial is at that time bound to follow the decision of the 
 political, it must be equally bound when the contest is over. It 
 
 10 "Under this article of the Constitution," said the court, speaking through 
 Taney, C. J., " it rests with Congress to decide what government is the 
 established one in the State. For as the United States guarantees to each 
 State a republican government, Congress must necessarily decide what govern- 
 ment is established in the State before it can be determined whether it is 
 republican or not. And when the Senators and Eepresentatives of a State 
 are admitted into the councils of the Union, the authority of the government 
 under which they are appointed, as well as its republican character, is 
 recognized by the proper constitutional authority. And its decision is bind- 
 ing on every other department of the government, and could not be questioned 
 in a judicial tribunal. . . . 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 fulfil 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 required the Federal Government to 
 interfere. But Congress thought otherwise. ... By this act (Feb. 28, 1795) 
 the power of deciding whether the exigency had arisen upon which the 
 government of the United Stales is bound to interfere, is .given to the 
 President. . . . 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 act of Congress."
 
 FEDERAL COXTKOL OF Fomi OF STATI: GOVERNMENTS. 161 
 
 cannot, when peace is restored, punish as offenses and crimes the 
 acts which it before recognized, and was "bound to recognize, as 
 lawful." As to the point that a discretionary power thus placed 
 in the hands of the President might be abused, the court said: 
 " All power may be abused if placed in unworthy hands. But it 
 would be difficult to point out any other hands in which this 
 power would be more safe, and at the same time equally effectual. 
 ... At all events, it is conferred upon him by the Constitution 
 and laws of the United States, and must therefore be respected, 
 and enforced in its judicial tribunals." 
 
 As regards the point that had been raised that by the declaration 
 of martial law and the use of military force, the old government 
 of Rhode Island had ceased to be a republican one, the court said : 
 " Unquestionably a military government, established as the per- 
 manent 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 contemplated no such government. It 
 was intended merely for the crisis, and to meet the peril in which 
 the existing government was placed by the armed resistance to its 
 authority. It was so understood and construed by the state au- 
 thorities. And, unquestionably, a State may use its military 
 authority to put down an armed insurrection, too strong to be con- 
 trolled by the civil authority. The power is essential to the ex- 
 istence of every government, essential to the preservation of order 
 and free institutions, and is as necessary to the States of this 
 as to any other government." 11 
 
 80. The Reconstruction of Southern States after the Civil War. 
 
 Acting under the authority assumed to be given it by the guar- 
 anty clause, Congress, at the conclusion of the Civil War, assumed 
 an almost complete control over the reconstruction of governments 
 in those States. There can be no question, however, but that in 
 doing so an interpretation was given to that clause which it is 
 difficult to justify. Practical exigencies may have necessitated 
 
 " For a fuller discussion of martial law, and its limitations, see post, 
 Chapter LXII. 
 
 u
 
 162 UNITED STATES CONSTITUTIONAL LAW. 
 
 the federal authority that was exercised, but that violence was 
 done to the meaning of this, clause must be admitted. A fair in- 
 terpretation of this clause would have given to the Federal Gov- 
 ernment at the most nothing more than the right to' assist the citi- 
 zens of the several States in establishing and maintaining govern- 
 ments republican in form and loyal to the Union. "When this 
 clause was discussed in the Constitutional Convention of 1787 it 
 was explained by one member that its object was " merely to 
 secure the States against dangerous commotions, insurrections, 
 and rebellions;" and Madison, writing in The Federalist, said: 
 " It may possibly be asked what need there could be for such a 
 precaution, and whether it may not become a pretext for altera- 
 tion in the state governments without the concurrence of the 
 States themselves. These questions admit of ready answers. If 
 the interposition of the General Government should not be needed, 
 the provision for such an event will be a harmless superfluity only 
 in the Constitution. But who can say what experiments may be 
 produced by the caprice of particular States, by the ambition of 
 enterprising leaders, or by the intrigues and influence of foreign 
 powers ? To the second question it may be answered, that if the 
 General Government should interpose by virtue of this constitu- 
 tional authority, it will of course be bound to pursue the au- 
 thority. But the authority extends no further than a guaranty 
 of a republican form of government, which supposes a pre-existing 
 government of the form which is to be guaranteed. As long, 
 therefore, .as the existing republican forms are continued by the 
 States, they are guaranteed by the federal Constitution. When- 
 ever the States may choose to substitute other republican forms, 
 they have a right to do so, and to claim the federal guaranty for 
 the latter. The only restriction imposed on them is, that they 
 shall not exchange republican for anti-republican Constitutions; 
 a restriction which, it is presumed, will hardly be considered as 
 a grievance." \ 
 
 Instead, however, of guaranteeing existing governments in the 
 Southern States, or of assisting their citizens in establishing re- 
 publican governments, the Federal Government, in pursuance of
 
 FEDERAL CONTROL OF FORM OF STATE GOVERNMENTS. 163 
 
 the various Reconstruction Acts passed by Congress, went on 
 itself to assume the practical control of the establishment of new 
 governments; and these governments it termed republican in 
 form, though they were imposed upon the States against the will 
 of the great bulk of their citizens, and were maintained in exist- 
 ence by the support that the federal bayonet was able to give them. 
 Furthermore, Congress even then refused to admit the States to 
 a full enjoyment of constitutional rights until they had amended 
 their Constitutions in certain specific ways, and ratified the 
 Fourteenth and Fifteenth Amendments to the federal Constitu- 
 tion. In so doing, not only was violence done to the guaranty 
 clause, but the States in question were deprived of that equality 
 with the other States of the Union to which they were constitu- 
 tionally entitled. 
 
 In an earlier chapter it has been pointed out that in the famous 
 case of Texas v. White 12 the Supreme Court construed the " guar- 
 anty " clause of the United States Constitution to authorize Con- 
 gress to establish and maintain governments in those States which 
 had attempted secession from the Union. It will be remembered, 
 however, that in that case the court did not feel itself called upon 
 to pass upon the constitutionality of any of the particular pro- 
 visions of the Reconstruction Acts which were enacted by Congress 
 in the exercise of that power, but was content with satisfying 
 itself that the government which had been established and had 
 been in actual operation, had been recognized by Congress, and 
 was, as such, competent to bring suit in behalf of the State of 
 Texas, which, it was declared, had never been, despite its ordi- 
 nance of secession, out of the Union. 13 
 
 In White v. Hart 14 an attempt was made to have the Supreme 
 Court hold void certain provisions of the reconstruction Constitu- 
 tion of Georgia on the ground that the Constitution had been 
 adopted under the dictation and coercion of Congress, and was 
 not thus, in reality, the act of the State. The Supreme Court re- 
 plied : " Congress authorized the State to frame a new Constitu- 
 
 127 Wall. 700; 19 L. ed. 227. 
 13 See ante, p. 85. j 
 
 UJ3 Wall. 646; 20 L. ed. 685.
 
 164 UNITED STATES CONSTITUTIONAL LAW. 
 
 tion, and she elected to proceed within the scope of the authority 
 conferred. The result was submitted to Congress as a voluntary 
 and valid offering, and was so received and so recognized in the 
 subsequent action of that body. The State is estopped to assail 
 it upon such an assumption. Upon the same grounds she might 
 deny the validity of her ratification of the constitutional amend- 
 ments. The action of Congress upon the subject cannot be in- 
 quired into. The case is clearly one in which the judicial is 
 bound to follow the action of the political department." In short, 
 the court held that whether or not Congress was justified in re- 
 quiring of the State that, as a condition to her again enjoying 
 representation in Congress, she should adopt a Constitution con- 
 taining certain provisions, the State had yielded and adopted a 
 Constitution as required. It was therefore her act, and its pro- 
 visions were valid as such. Had she continued to refuse to accede 
 to the conditions imposed by Congress, it might ultimately have 
 been necessary to decide whether those conditions were constitu- 
 tionally requirable. But having yielded to them, the court very 
 properly held that it could not examine into the motives or cir- 
 cumstances which led the .State to do so. 
 
 81. Restricted Suffrage Compatible with Republic Form of 
 Government. 
 
 In Minor v. Happersett 15 the point was raised that a state gov- 
 ernment is not republican in form in which adult women are not 
 permitted to vote. As to this the court said : " The guaranty is 
 of a republican form of government. Xo particular government 
 is designated as republican, neither is the exact form to be guaran- 
 teed, in any manner especially designated. Here, as in other 
 parts of the instrument, we are compelled to resort elsewhere to 
 ascertain what was intended. The guaranty necessarily implies 
 a duty on the part of the States themselves to provide such a gov- 
 ernment. All the States had governments when the Constitution 
 was adopted. In all the people participated to some extent, 
 through their representatives elected in the manner specially pro- 
 is 21 Wall. 162; 22 L. ed. 627.
 
 FEDERAL CONTROL OF FORM OF STATE GOVERNMENTS. 165 
 
 vided. These governments the Constitution did not change. They 
 were accepted precisely as they were, and it is, therefore, to be 
 presumed that they were such as it was the duty of the States to 
 provide. Thus we have unmistakable evidence of what was re- 
 publican in form, within the meaning of that term as employed 
 in the Constitution. As has been seen [in the argument that has 
 gone befpre], all the citizens of the States were not invested with 
 the right of suffrage. In all, save perhaps Xew Jersey, this right 
 was only bestowed upon men and not upon all of them. Under 
 these circumstances it is certainly now too late to contend that a 
 government is not republican, within the meaning of this guar- 
 anty in the Constitution, because women are not made voters." M 
 
 Precedents have established the principle that where there is a 
 dispute in a State as to the de jure character of a particular organ, 
 of its government, as, for example, as to which of two individuals 
 has been elected as chief executive, or which of two courts or 
 legislatures is entitled to authority, the Federal Government will 
 not ordinarily interfere, being governed by the principle that each 
 state government has a tribunal for the decision of such contests, 
 and that the General Government will consider itself bound by 
 the decision which that tribunal renders, just as the federal courts 
 hold themselves bound by the decisions of the state courts as to 
 the existence and, in general, the interpretation of their respective 
 state statutes. 17 
 
 In two classes of cases, however, the Federal Government exer- 
 cises the right to decide which of two contesting state officials or 
 organs is to be recognized as the de jure authority. The first of 
 these includes those cases in which a decision becomes necessary 
 in order to determine a matter of direct federal concern. Thus, 
 for example, when each of two contesting state legislatures select 
 and send senators to Congress, it is necessary for the T T nited States 
 Senate to decide which of the two electing bodies is endowed with 
 the authority to act on that behalf for the State. So, also, as in 
 
 is In this ca?e was also negatived the assertion that to deny women the 
 s\;fTra.fre is to deprive them of a right guaranted to them by the Fourteenth 
 Amaubnent. 
 
 " See post. Chapter LTI.
 
 166 UNITED STATES CONSTITUTIONAL LAW. 
 
 the case of Dorr's Rebellion, where federal aid is needed to sup- 
 press domestic disorder, it is necessary for the President or Con- 
 gress to determine which government, claiming authority, it will 
 recognize. 
 
 The second class of cases in which the Federal Government, 
 through its Supreme Court, will assume jurisdiction where there 
 is dispute between parties as to who is entitled to a state office, 
 include those in which there is a question whether the state laws, 
 as applied by the state authorities, have violated that provision 
 of the Fourteenth Amendment which declares that no State " shall 
 deprive any person of life, liberty, or property, without due 
 process of law," or have violated the tenth section of Article One 
 of the Constitution of the United States, which declares that no 
 State shall pass a law impairing the obligation of a contract. 
 
 82. Public Office not a Property or Contract Right 
 
 The Supreme Court of the United States has held in an un- 
 qualified manner, that as between a State and an office-holder, 
 there is no contract right possessed by the latter either to the 
 office or to the salary attached to it, and that, therefore, in the 
 absence of express constitutional provision otherwise, his removal 
 from office or the abolishment of the office itself gives to him no 
 cause of action against the State. Thus in Butler v. Pennsyl- 
 vania 18 after defining vested private rights of property, the court 
 said : " The contracts designed to be protected by the tenth sec- 
 tion of the first article of that instrument are contracts by which 
 perfect rights, certain definite, fixed, private rights of property, 
 are vested. These are clearly distinguishable from measures or 
 engagements adopted or undertaken by the body politic or state 
 government for the benefit of all, and from the necessity of the 
 case, and according to universal understanding, to be varied or 
 discontinued as the public shall require. The selection of officers, 
 who are nothing more than agents for the effectuating of public 
 purposes, is matter of public convenience or necessity, and so, too, 
 are the periods for the appointment of such agents; but neither 
 
 10 How. 402; 13 L. ed. 472.
 
 FEDERAL CONTROL OF FORM OF STATE GOVERNMENTS. 167 
 
 the one nor the other of these arrangements can constitute any 
 obligation to continue such agents, or to reappoint them, after the 
 measures which brought them into being shall have been found 
 useless, shall have been fulfilled, or shall have been abrogated as 
 even detrimental to the well-being of the public. The promised 
 compensation for services actually performed and accepted, dur- 
 ing the continuance of the particular agency, may undoubtedly be 
 claimed, both upon principle of compact and of equity; but to 
 insist beyond this on the perpetuation of a public policy either 
 useless or detrimental, and upon a reward for acts neither desired 
 nor promised, would appear to be neither reconcilable with natural 
 justice nor with common sense. The establishment of such a 
 principle would arrest necessarily everything like progress or im- 
 provement in government ; or if changes would be ventured upon, 
 the government would have to become one great pension establish- 
 ment on which to quarter a host of sinecures. It would especially 
 be difficult, if not impracticable, in this view, ever to remodel the 
 organic law of a State, as constitutional ordinances must be of 
 higher order and more immutable than common legislative enact- 
 ments, and there could not exist conflicting constitutional ordi- 
 nances under one and the same system. It follows, then, upon 
 principle, that, in every perfect and competent government, there 
 must exist a general power to enact and to repeal laws; and to 
 create, and change or discontinue, the agents designated for the 
 preservation of the body politic, and for the safety of the indi- 
 viduals of the community. It is true that this power or the ex 
 tent of its exercise may be controlled by higher organic law or the 
 Constitution of the State, as is the case in some instances in the 
 state Constitutions, and is exemplified in the provision of the fed- 
 eral Constitution relied on in this case by the plaintiffs in error, 
 and in some other clauses of the same instrument ; but where no 
 such restriction is imposed, the power must rest in the discretion 
 of the government alone." 
 
 Again, summing up the law on this subject, the Supreme Court 
 in Taylor v. Beckham 19 say: " The decisions are numerous to the 
 
 "ITS U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 1187.
 
 168 UNITED STATES CONSTITUTIONAL LAW. 
 
 effect that public offices are mere agencies or trusts, and not prop- 
 erty as such. Nor are the salary and emoluments property secured 
 by contract, but compensation for services actually rendered. 2s or 
 does the fact that a constitution may forbid the legislature from 
 abolishing a public office or diminishing the salary thereof during 
 the term of the incumbent, change its character or make it prop- 
 erty. True, the restrictions limit the power of the legislature to 
 deal with the office, but even such restrictions may be removed by 
 constitutional amendment. In short, generally speaking, the 
 nature of the relation of a public officer to the public is incon- 
 sistent either with a property or contract right" 20 
 
 83. Suits between Two or More Claimants to State Office. 
 
 When the dispute is not one between the State and one of its 
 officers, bu^ between two individuals each claiming the office and 
 its emoluments, when, in other words, the office itself is not dis- 
 turbed nor the salary changed, the question is a different one. 
 Then, it would seem, the office has often to be treated as a piece 
 of property of which the owner may not be deprived without due 
 process of law even by the State itself. In Kennard v. Louisiana 21 
 an action in the nature of quo warranto was brought against the 
 plaintiif in error, a justice of the Supreme Court of the State, 
 by a Mr. Morgan, and the decision of the Louisiana courts was 
 in his favor. Thereupon Kennard took an appeal to the Supreme 
 Court of the L T nited States upon the ground that, through her 
 judiciary, the State had deprived him of his office without that 
 due process of law which the Fourteenth Amendment secured to 
 
 20 It is to be observed, however, that where a State in a fiscal capacity 
 enters into contracts with private persons for services to be rendered or 
 materials to be furnished, it is to be regarded pro har, vice as a private 
 person and as bound accordingly. " When a State becomes a party to a 
 contract as in the case before us, the same rules of law are applied to 
 her as to private persons under like circumstances. When she or her 
 representatives are properly brought into the forum of litigation, neither 
 she nor they can assert any right or immunity as incident to her political 
 sovereignty." Davis v. Gray (16 Wall. 203; 21 L. ed. 447). See also 
 Curran v. Arkansas (15 How. 304; 14 L. ed. 705). 
 
 21 92 U. S. 480 ; 23 L. ed. 478.
 
 FEDERAL COXTROL OF FOKM OF STATE GOVERXMEXTS. 169 
 
 him. In its opinion the Supreme Court of the United States 
 say : " The question before us is, not whether the courts below, 
 having jurisdiction of the case and the parties, have followed the 
 law, but whether the law, if followed, would have furnished Ken- 
 nard the protection guaranteed by the Constitution. Irregulari- 
 ties and mere errors in the proceedings can only be corrected in 
 the state court?. Our authority does not extend beyond an ex- 
 amination of the power of the courts below to proceed at all." 
 And, directing its examination to this point, the court found that 
 in fact due process of law had been provided in the trial of his 
 right to office which he claimed. In thus assuming jurisdiction 
 of the case, and in examining as to whether in fact due process 
 of law had been had, it is apparent that the Supreme Court must 
 have held that the right to the office in question was a property 
 right within the terms of the provision of the Fourteenth Amend- 
 ment which declares that no State shall deprive a person of life, 
 liberty, or property without due process of law. 
 
 Again, in Foster v. Kansas, 22 the federal court assumed juris- 
 diction in a case where the Supreme Court of Kansas had ousted 
 the plaintiff in error from office, the court in its opinion saying: 
 "As the question of the constitutionality of the statute was 
 directly raised 1 y the defendant, and decided against him by the 
 court, we have jurisdiction and the motion to dismiss must be 
 overruled;" thus affirming the decision of the state court on the 
 ground that the proceed ing/s showed due process of law. 
 
 In Boyd v. Xebraska 1 ' 3 the state supreme court had ousted Boyd 
 from the office of governor and installed Thayer therein. On 
 error to the federal Supreme Court, the judgment of the state 
 Supreme Court was reversed, Thayer ousted, and Boyd reinstated 
 a- governor of the State, the ground for this action being that 
 in the proceedings by which Boyd had been originally ousted, 
 the state court had incorrectly decided that he was not a citizen 
 <>f the United States and therefore disqualified for office. In its 
 opinion, the court say: "A- ihe allegation? [of citizenship] . . . 
 up a right and privilege claimed under tho laws of the United 
 
 22 112 U. S. 20.-,: r> Sup. Ct. Rep. S: 2S L. ed. 696. 
 23143 U. S. 135; 12 Sup. Ct. Rep. 375; 30 L. ed. 103.
 
 170 UNITED STATES CONSTITUTIONAL LAW. 
 
 States, this court must determine for itself the question of suffi- 
 ciency of this allegation, and is not concluded by the view taken 
 of that question by the Supreme Court of Nebraska." The state- 
 ment that a federal right or privilege was here claimed, would 
 not seem to be correct. No right or privilege attached to, or 
 growing out of federal citizenship was claimed. The judgment 
 of the state court should have been affirmed irrespective of the 
 fact whether or not in truth Boyd was a citizen of the United 
 States. 24 
 
 In Wilson v. North Carolina 25 the Supreme Court of the 
 United States was again called upon to determine whether the 
 plaintiff in error had, by being ousted from office, been deprived 
 of property without due process of law. In its opinion the court 
 again affirm the doctrine that " the procedure provided by a valid 
 state law for the purpose of changing the incumbent of a state 
 
 2 * In an emphatic dissenting opinion Justice Field said: "I dissent from 
 the judgment just rendered. I do not think that this court has any juris- 
 diction to determine a disputed question as to the right to the governorship 
 of a State, however that question may be decided by its authorities. . . . 
 The fact that one of the qualifications prescribed by the State for its officers 
 can only be ascertained and established by considering the provisions of the 
 law of the United States in no way authorizes an interference by the 
 General Government with the state action. Because an officer of a State 
 must [according to the Constitution or statutes of that State] be a citizen 
 of the United States, it does not follow that the tribunals of the United 
 States can alone determine that fact, and that the decision of the State 
 in respect to it can be supervised and controlled by the federal authori- 
 ties. . . . The office of sheriff was not a right or privilege claimed under a 
 law of the United States, but was a right or privilege claimed by the 
 election under the laws of Missouri. The mere fact that it was necessary 
 that the incumbent of the office should also be a citizen of the United States, 
 did not of itself give him a right to that office. . . . My objection to the 
 decision is not diminished by the fact that there is no power in this court 
 to enforce its decision upon the State of Nebraska should resistance be made 
 to it. Should the incumbent declared by this court not to be entitled to 
 the office refuse to surrender it and the state authorities should stand by 
 him in such refusal, what could- be done about it? . . .If the right of this 
 court to interfere in this case can be sustained, every candidate for office 
 alleging that the successful party has not some qualification prescribed by 
 statute, which can only be defined by reference to a federal law. will claim a 
 right to invoke the interference of the federal judiciary to determine whether 
 he oiight or not to have been declared elected." 
 
 25 169 U. S. 586; 18 Sup. Ct. Rep. 435; 42 L. ed. 865.
 
 FEDERAL CONTROL, OF FORM OF STATE GOVERNMENTS. 171 
 
 office will not in general involve any question for review by this 
 court. A law of that kind does but provide for the carrying out 
 and enforcement of a policy of a State with reference to its politi- 
 cal and internal administration, and a decision of the state court 
 in regard to its construction and validity will generally be con- 
 clusive here. The facts would have to be most rare and excep- 
 tional which would give rise in a case of this nature to a federal 
 question." 
 
 84. Taylor v. Beckham. 
 
 The latest case upon the point under consideration is that of 
 Taylor v. Beckham, 20 decided in 1900. This case arose out of the 
 following facts. At a general election held in November, 1899, 
 in Kentucky, William Goebel and J. C. W. Beckham were the 
 democratic nominees for the offices of governor and lieutenant- 
 governor respectively, and William S. Taylor and John Marshall 
 were the republican candidates. The state board of election com- 
 missioners whose duty it was to canvass the returns, determined 
 that Taylor and Marshall were elected, and they were thereupon 
 inducted into office. Goebel and Beckham contested the election 
 upon various grounds, boards of contest were organized, and re- 
 ported their decisions to the General Assembly for its action 
 thereupon as provided by law. These reports, which were ap- 
 proved by the Assembly, found that Goebel and Beckham had 
 been elected. They were then duly sworn and inducted into 
 office. In February, 1900, Goebel died and Beckham succeeded 
 to the governorship. Taylor and Marshall, however, refused to 
 recognize the validity of the proceedings whereby Goebel and 
 Beckham had been declared elected, and declined to surrender the 
 records and other papers pertaining to the office of governor or 
 to vacate the executive offices in the capitol building at Frankfort. 
 Whereupon Beckham brought an action in the nature of a quo 
 warranto in the Circuit Court of the State against Taylor and 
 Marshall. Judgment of ouster was rendered in favor of the plain- 
 tiff. The case \va- carried on appeal to the Court of Appeals of 
 Kentucky and the judgment affirmed; whereupon a writ of error 
 
 26 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. cd. 1187.
 
 172 UXITED STATES CONSTITUTIONAL LAW. 
 
 was obtained by Taylor and ^Marshall from the Supreme Court of 
 the United States. The Supreme Court dismissed the writ of 
 error. 
 
 Two grounds for federal interference had been set up by the 
 plaintiffs in error: (1) That the proceedings by which they had 
 been ousted from office were not compatible with a republican 
 form of government; (2) that they had been deprived of a prop- 
 erty right without due process of law. 
 
 As to the first contention, the court held that the Common- 
 wealth of Kentucky being in full possession of its faculties as 
 a member of the Union, no exigency had arisen requiring the 
 interference of the Federal Government to enforce the guarantv 
 clause. As to the second point, the court say: % ' The contention 
 is that, although the statute furnished due pr; cess of law. the 
 General Assembly in administering the statute denied it, and that 
 the Court of Appeals in holding to the rule that where a mode of 
 contesting elections is specifically provided by the Constitution, 
 or laws of a State, that mode is exclusive, and in holding that, as 
 the power to determine was vested in the General Assembly of 
 Kentucky, the decision of that body was not subject to a ju'.lkial 
 revision, denied a right claimed under the federal Constitution. 
 The Court of Appeals did, indeed, adjudge that the ease did not 
 come within the Fourteenth Amendment, because the right to 
 hold the office of governor or lieutenant-governor of Kentucky 
 was not property in itself, and being created by the Constitution, 
 was conferred and held solely in accordance with the terms of 
 that instrument and laws passed pursuant thereto, so that, in re- 
 spect of an elective office, a determination of the result of an 
 election, in the manner provided, adverse to a claimant, could 
 not be regarded as a deprivation forbidden by that amendment." 
 
 The court, after an examination of authorities, declare that 
 the Kentucky court had been correct in thus holding that a pub- 
 lic office is not property, and say : " It is clear [then] that the 
 judgment of the Court of Appeals, in declining to go behind the 
 decision of the tribunal vested by the state Constitution and laws 
 with the ultimate determination of the right to these offices, de- 
 nied no right secured by the Fourteenth Amendment."
 
 FEDERAL CONTROL OF FORM OF STATE GOVERNMENTS. 173 
 
 In assuming the position here taken as to non-property char- 
 acter of a public office and in dismissing the \\yit of error on that 
 ground, it would seeni that the court was scarcely in harmony 
 with its preceding decisions, in several of which, as we have al- 
 ready seen, by assuming j urisdiction, and by examining the 
 character of the processes by which the contests for office had 
 been settled to see if they provided due process of law, it had 
 assumed that as between two contestants for an office, the right 
 to an office and its emoluments was a property right within the 
 meaning of the Fourteenth Amendment. 27 
 
 27 Thus Justice Brewer, in bis dissenting opinion, says: "I agree fully 
 with those decisions which are referred to [in the majority opinion], and 
 which hold that as between the State and the office holder there is no con- 
 tract right eitlwr to the term of office or to the amount of salary, and 
 that the legislature may, if not restrained by constitutional provisions, 
 abolish the office or reduce the salary. But when the office is not disturbed, 
 when the salary is not changed, and when, under the Constitution of the 
 State, neither can be by the legislature, and the question is simply whether 
 one shall be deprived of that office and its salary, and both given to an- 
 other, a different question is presented, and in such a case to hold that the 
 incumbent has no property in the office, with its accompanying salary, does 
 not commend itself to my judgment." Justice Brewer goes on to argue, 
 however, that the judgment of the Court of Appeals of Kentucky should 
 have been affirmed for the reason that due process of law had been observed. 
 " But," he concludes, " because, as I understand the law, this court has 
 jurisdiction to review a judgment of the highest court of a State ousting 
 one from his office and giving it to another, and a right to inquire whether 
 that judgment is right or wrong in respect to any federal question such 
 as due process of law, I think tlie writ of error should not be dismissed, but 
 that the judgment of the Court of Appeals of Kentucky should be affirmed." 
 Justice Brown concurred in the opinion rendered by Justice Brewer. 
 
 A dissenting opinion was also rendered in this case by Justice Harlan. 
 In this he argues not only that the writ of error should not have been 
 dismissed, but' that the court should adjudge that the decree in the state 
 court had taken from Taylor and Marshall rights protected by the Four- 
 teenth Amendment. In agreement witli Justices Brewer and Brown he argues 
 that as between two claimants a public office is property, and had been 
 so held by the Supreme Court in previous cases. But he goes even further 
 than this, and brings the right of office within the meaning of the term 
 ' liberty " as used in the Fourteenth Amendment. " What more directly 
 involves the liberty, of the citizen," he says, " than to be able to enter 
 upon the discharge of the duties of an office to which he has been lawfully 
 elected by his fellow citizens? What more certainly infringes upon his
 
 174 UNITED STATES CONSTITUTIONAL LAW. 
 
 liberty than for the legislature of the State, by merely arbitrary action, 
 in violation of the rules and forms required by due process of law, to take 
 from him the right to. discharge the public duties imposed upon him by his 
 fellow citizens in accordance with the law? ... I grant that it is competent 
 for a State to provide for the determination of contested election cases 
 by the legislature. All that I now seek to maintain is the proposition that 
 when a state legislature deals with a matter within its jurisdiction, and which 
 involves the life, liberty or property of the citizen, it cannot ignore the 
 requirement of due process of law. . . . Looking into Ihe record before us, 
 I find such action taken by the body claiming to be organized as the lawful 
 legislature of Kentucky as was discreditable in the last degree and un- 
 worthy of the free people whom it professed to represent." After a state- 
 ment of the facts which in his opinion justified this characterization of the 
 action of the legislature, Justice Harlan concludes: "Those who composed 
 that body seemed to have shut their eyes against the proof for fear that it 
 would compel them to respect the popular will as expressed at the polls. 
 Indignant, as naturally they were and should have been, at the assassina- 
 tion of their leader, they proceeded in defiance of all forms f of law and in 
 contempt of the principles upon which free government rest, to avenge that 
 terrible crime, namely, the destruction by arbitrary methods of the right of 
 the people to choose their chief magistrate. The former crime, if the offender 
 be discovered, can be punished as directed by law. The latter should not 
 be rewarded by a declaration of the inability of the judiciary to protect 
 public and private rights, and thereby the rights of voters, against the 
 wilful, arbitrary action of a legislative tribunal which, we must assume 
 from the record, deliberately acted upon a contested election case involving 
 the rights of the people and of their chosen representative in the office of 
 governor without looking into the evidence upon which alone any lawful deter- 
 mination of the case could be made. The assassination of an individual 
 demands the severest punishment which it is competent for human laws in a 
 free land to prescribe. But the overturning of the public will, as expressed 
 at the ballot box, without evidence or against evidence, in order to ac- 
 complish partisan ends, is a crime against free government, and deserves 
 the execration of all lovers of liberty. ... I cannot believe that the judici- 
 ary is helpless in the presence of such a crime. The person elected as well 
 as the people who elected him, have rights that the courts may protect. 
 To say that in such an emergency the judiciary cannot interfere is to sub- 
 ordinate the right to mere power, and to recognize the legislature of a 
 State as above the supreme law of the land. . . . The doctrine of legislative 
 absolutism is foreign to free government as it exists in this country. The 
 cornerstone of our republican institutions is the principle that the powers 
 of government shall, in all vital particulars, be distributed among three 
 separate co-ordinate departments, legislative, executive, and judicial. And 
 liberty regulated by law cannot be permanently secured against the assaults 
 of power or the tyranny of a majority, if the judiciary must be silent when 
 rights existing independently of human sanction, or acquired under the law, 
 are at the mercy of legislative action taken in violation of due process of law."
 
 CHAPTER XI. 
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES; THE FOURTEENTH 
 
 AMENDMENT. 
 
 85. The Fourteenth Amendment. 
 
 In the chapters which have gone before, the manner in which 
 the Federal Government is secured from interference on the 
 part of the States has been considered. ~\Ye turn now to a topic 
 which, while closely related to this subject, is yet distinct from 
 it. This topic is the extent of the legal power of the Federal 
 Government to examine state laws and supervise their execution 
 with a view to seeing that they do not infringe in any way upon 
 the rights secured to individuals by the federal Constitution. In 
 other words, the question now to be considered is not the mainte- 
 nance of the supremacy of the Federal Government, but the pro- 
 tection of individuals in the enjoyment of the rights and im- 
 munities guaranteed to them by the federal Constitution. 
 
 Prior to the adoption of the Fourteenth Amendment in 1868 
 the laws of the individual States, so long as they related to sub- 
 jects over which the States had the right of legislation, were not 
 subject to examination in federal courts with a view to ascertain- 
 ing whether they deprived anyone of life, liberty, or property 
 without due process of law, or denied to anyone equal legal pro- 
 tection. The first nine amendments to the federal Constitution 
 which enumerated the fundamental rights of individuals that 
 miulit not be violated were, from the beginning, construed to 
 limit not the*States but only the Federal Government. Until, 
 therefore, the Fourteenth Amendment was adopted there was, so 
 far as the federal Constitution and laws were concerned, nothing 
 to prevent the several States from enacting laws which denied to 
 their own citizens the equal protection of the laws or deprived 
 them of life, liberty, and property, without due process of law. 
 The only limitations laid upon the States by the Constitution 
 were that they should enact no bills of attainder, or ex post facto 
 
 [175]
 
 176 UNITED STATES CONSTITUTIONAL LAW. 
 
 laws, or laws impairing the obligation of contracts. As a matter 
 of fact, indeed, all of the States had by their own Constitutions 
 taken from their legislatures the power to enact laws upon certain 
 specified topics, and forbidden them to violate certain -declared 
 principles of justice and right But the adoption of these con- 
 stitutional limitations was purely voluntary upon their part. 
 
 In 1868, however, as one of the results of the Civil War, the 
 Fourteenth Amendment was adopted, which, after declaring that 
 " 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," goes on to provide that, 
 " no State shall make or enforce any law which shall abridge the 
 privileges and 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." 
 
 For a number of years after the adoption of this Amendment 
 it was by no means certain that the effect of the above-cited pro- 
 visions would not be to endow the United States Government with 
 additional powers so great as fundamentally to alter the very 
 nature of the Union itself. There can be no question but that the 
 clauses of the Amendment which we have quoted were easily 
 susceptible of an interpretation that would have given them this 
 result, and that, at the time they were framed and adopted by 
 Congress and ratified by the necessary number of state legisla- 
 tures, there were very many who believed that they would, and 
 desired that they should, work this revolutionary change, in the 
 American constitutional system. 1 Fortunately, however, as all 
 must now believe, the Supreme Court has been led to give to these 
 words a construction that robbed them of such an effect. 
 
 i See especially the debates attendant upon the passage of the Civil Eights 
 Bill of 1866, the doubts as to the constitutionality of which led to the 
 adoption of the Fourteenth Amendment. See also the dissenting opinion of 
 Justice Harlan in the Civil Rights Cases (109 I". S. 3: 3 Sup. Ct. Rep. 18; 
 27 L. ed. 835). See also especially Flack, The Adoption of the Fourteenth 
 Amendment.
 
 Si 1'KUVISIO^ OF STATE ACTIVITIES. 177 
 
 This the court has been able to do by the principles which it 
 has laid down in the cases which follow. 2 
 
 86. The Slaughter House Cases. 
 
 The famous Slaughter House Cases, 3 decided in 1873, grew out 
 of the following facts : The State of Louisiana in the exercise of 
 its " police powers," had passed an act chartering a company, 
 and giving to it the exclusive right to establish and maintain 
 stock-yards and landing places and slaughter houses for the City 
 of New Orleans, and providing that all animals intended for 
 food shoiild be slaughtered there. The plaintiffs in the cases that 
 have since come to be known as the " Slaughter House Cases " 
 alleged that this act was unconstitutional as tested by the federal 
 Constitution on the several grounds that it was in violation of 
 the Thirteenth Amendment in that it created an involuntary servi- 
 tude upon the part of those who were compelled to resort to this 
 privileged company ; and that it was in violation of the Four- 
 teenth Amendment in that it deprived persons of liberty and prop- 
 erty without due process of law, denied to them the equal protec- 
 tion of the laws, and abridged the privileges and immunities of 
 citizens in the United States. It is only with this last claim that 
 we are now concerned. 
 
 As we shall later see, the Fourteenth Amendment has been con- 
 strued to give to the federal courts the power of examining 
 whether, in the exercise of their ordinary police and other powers, 
 the States have denied to anyone due process of law or the equality 
 of the laws, -but the claim that the rights and immunities which 
 were alleged to have be.en violated by the Louisiana statute were 
 ones coming within the scope of the phrase " privileges or im- 
 
 2 In the following pages there is not attempted a general examination of 
 the Fourteenth Amendment, but only a consideration of the extent to which 
 this addition to the Constitution may be said to have altered the general 
 character of our constitutional system, especially with reference to the extent 
 to which either Congress lias been granted an increased legislative power, 
 or the Federal Government endowed with a general supervisory jurisdiction 
 over state, legislation. 
 
 310 Wall. 30; 21 L. ed. 394. 
 
 12
 
 178 UNITED STATES CONSTITUTIONAL LAW. 
 
 xnunities of citizens of the United States " as used in the Four- 
 teenth Amendment, raised the fundamental question whether or 
 not, by that Amendment, the entire so-called " police powers " of 
 the States had been placed within the direct legislative definition 
 and control of Congress. This would have resulted from the fact 
 that by the Amendment Congress is given authority to enforce 
 its provisions by appropriate legislation. If, therefore, such a 
 right as was here alleged to have been violated could be held to 
 be a federal right it would be within the power of Congress to 
 define it, and all other similar rights, and to impose penalties 
 upon their violation, and thus to deprive the States of their en- 
 tire police powers. These police powers, it is scarcely necessary 
 to observe, cover almost the entire field of private rights, personal 
 and proprietary, including, as they do, the general authority of 
 the State to legislate regarding the social, economic, and moral 
 welfare of its citizens. To have granted the contention of the 
 plaintiffs would thus have made Congress, instead of the state 
 legislatures, the possible source of the great body of private laws 
 by which the citizen is governed. It is, therefore, not surprising 
 that the court in its majority opinion should have said : " We do 
 not conceal from ourselves the great responsibility which . . . 
 devolves upon us. Ro questions so far reaching and pervading in 
 their consequences, so profoundly interesting to the people of this 
 country, and so important in their bearing upon the relations 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." 
 
 The argument of the plaintiffs which found acceptance in the 
 opinions rendered by the minority of the court was that the indi- 
 vidual as a free man and citizen of a State, had, before the adop- 
 tion of the Amendment, certain fundamental rights, privileges, 
 and immunities, whicn were determined by state statutes and the 
 general principles of the common law, and that by that Amend- 
 ment the citizen became primarily a citizen of the United States, 
 and only secondarily, by residence, a citizen of a particular State
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES. 179 
 
 of the Union, and that, therefore, these fundamental rights, 
 privileges, and immunities which formerly belonged to him as a 
 citizen of the State in which he lived now became his as a citizen 
 of the United States, and, as such, no longer subject to abridge- 
 ment by the States. Only by this interpretation, it was argued, 
 could the clause of the Amendment which we are considering, be 
 given any force whatever. Thus Justice Field, in his dissenting 
 opinion, argued : " The Amendment does not attempt to confer 
 any new privileges or immunities upon citizens, or to enumerate 
 or define those already existing. It assumes that there are such 
 privileges and immunities which belong of right to citizens as 
 such, and ordains that they shall not be abridged by state legis- 
 lation. If this inhibition has no reference to privileges and im- 
 munities of this character, but only refers ... to such 
 privileges and immunities as were before its adoption specially 
 designated in the Constitution or necessarily implied as belonging 
 to citizens of the United States, it was a vain and idle enactment, 
 which accomplished nothing, and most unnecessarily excited Con- 
 gress and the people on its passage. With privileges and immu- 
 nities thus designated no State could ever have interfered by its 
 laws, and no new constitutional provision was required to inhibit 
 such interference. The supremacy of the Constitution and the 
 laws of the United States always controlled any state legislation 
 of that character. But if the Amendment refers to the natural 
 and inalienable rights which belong to all citizens, the inhibition 
 has a profound significance and consequence." 4 
 
 * As illustrative of, and as a partial enumeration of these federal privileges 
 and immunities, Justice Bradley quoted the language used by Justice Washing- 
 ton in Corfield v. Coryell (4 Wash. C. C. 380) in interpreting the article 
 of the Constitution which provides that the citizens of each State shall be 
 entitled to all the privileges and immunities of citizens in the several States. 
 "The inquiry is," said the Justice in that case, "what are the privileges 
 and immunities of citizens in the several States? We feel no hesitation in 
 confining these expressions to those privileges and immunities which are in 
 their nature fundamental; which belong of right to the citizens of all free 
 governments, and which have at all times been enjoyed by the citizens of the 
 several States which compose this Union from the time of their becoming 
 free, independent and sovereign. What these fundamental privileges are it
 
 180 UNITED STATES CONSTITUTIONAL LAW. 
 
 The majority of the court were not able to accept this construe* 
 tion of the Amendment which, as we have seen, would have opened 
 such possibilities of increasing the federal powers at the expense 
 of those of the States. Referring to " the history of the times " 
 in which the Thirteenth, Fourteenth and Fifteenth Amendments 
 were adopted, the court found in them a unity of purpose, the 
 protection of the freed negroes, and not an intention radically 
 to alter the constitutional character of the Union. Attention is 
 called to the fact that the Fourteenth Amendment implies and 
 by its language recognizes a continuance of a distinction between 
 federal and state citizenship, and that from this it follows that 
 the privileges and immunities attaching to or growing out of each 
 are to be distinguished. " Was it the purpose of the Fourteenth 
 Amendment," the court ask, " by the simple declaration that 110 
 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 declared that Congress shall have the power to 
 enforce that article, was it intended to bring within the control 
 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 legis- 
 
 would perhaps be more tedious than difficult to enumerate. They may, how- 
 ever, be all comprehended under the following general heads: protection by 
 the government; the enjoyment of life and liberty with the right to acquire 
 and possess property of every kind, and to pursue and obtain happiness and 
 safety, subject, nevertheless, to such restraints as the government may justly 
 prescribe for the general good of the whole; the right of a citizen of one 
 State to pass through, or reside in, any other State for purposes of trade, 
 agriculture, professional pursuits, or otherwise; to claim the benefit of the 
 writ of hatbeas corpus; to institute arid maintain actions of any kind in 
 the courts of the State; to take, hold, and dispose of property, either real or 
 personal, and an exemption from higher taxes or impositions than are paid 
 by the other citizens of the State, mav be mentioned as some of the par- 
 ticular privileges and immunities of citizens which are clearly embraced by 
 the general description of privileges deemed to be fundamental."
 
 FEDEEAL SUPERVISION OF STATE ACTIVITIES. 181 
 
 lation, 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 subjects. And still further, such a con- 
 struction followed by the reversal of the judgments of the Su- 
 preme 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 ex- 
 isted at the Time of the adoption of this amendment . . . 
 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 subject- 
 ing 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 relation of the state and federal governments 
 to each other and of both of these governments to the people ; the 
 argument has a force that is irresistible, in the absence of lan- 
 guage which expresses such a purpose too clearly to admit of 
 doubt. We are convinced that no such results were intended by 
 Congress which proposed these Amendments, nor by the legis- 
 latures of the States, which ratified them." 
 
 With reference to the question that is immediately suggested, 
 as to what are these distinctively federal rights which the States 
 are not to infringe, the court says : " 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 Gov- 
 ernment, we may hold ourselves excused from denning the privi- 
 leges 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 bo said that no 
 such privileges and immunities are to be found if those we have
 
 182 UNITED STATES CONSTITUTIONAL LAW. 
 
 been considering are excluded, we venture to suggest some which 
 owe their existence* to the Federal Government, its national char- 
 acter, its Constitution, or its laws. One of these is well described 
 in the case of Crandall v. Nevada. 5 It is said to be the right of 
 the citizen of this great country, protected by implied guarantees 
 of its Constitution, ' to come to the seat of government to assert 
 any claim he may have upon that government, 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 which all operations of for- 
 eign countries arc conducted, to the sub-treasuries, land offices, 
 and courts of justice 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 by this court in Crandall v. Xe- 
 vada. 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 jurisdiction of a foreign government. Of this there can be 
 no doubt, nor that the right depends upon his character as a citi- 
 zen 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, however 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 citizenship 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 liona fide residence therein, with the same 
 rights as the other citizens of that State. To these may be added 
 the rights secured by the Thirteenth and Fifteenth Articles of 
 
 56 Wall. 35; 18 L. ed. 745.
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES. 183 
 
 Amendment, and by the other clause of the Fourteenth, next to 
 be considered."" 
 
 87. Effect of Fourteenth Amendment upon Rights Enumerated 
 
 in First Eight Amendments. 
 
 In Ex parte Spies 7 the point was urged upon the court that the 
 privileges and immunities secured against federal infringement 
 by the first eight Amendments to the federal Constitution, were, 
 because so secured, federal privileges and immunities, which, ac- 
 cording to the Fourteenth Amendment, and the doctrine of the 
 Slaughter House Cases the States might not abridge or deny. 
 The counsel for Spies in his argument said : " The position I 
 take is this. Though originally the first ten Amendments were 
 adopted as limitations on federal power, yet in so far as they 
 secure and recognize fundamental rights common law rights 
 of the man, they make them privileges and immunities of the man 
 as a citizen of the United States, and cannot now be abridged by 
 a State under the Fourteenth Amendment. In other words while 
 the ten Amendments, as limitations on power, only apply to the 
 
 6 Cooler, in his Principles of Constitutional Law, p. 245, gives the follow- 
 ing enumeration of distinctively federal rights : " A citizen of the United 
 States," he says, " as such has the right to participate in foreign and inter- 
 state commerce, to have the benefit of the postal laws, to make use in common 
 with others of the navigable waters of the United States, and to pass from 
 State to State into foreign countries, because over all these subjects the 
 jurisdiction of the United States extends, and they are coerced by its law. . . . 
 So every citizen may petition the federal authorities which are set over him 
 in respect to any matter of public concern ; may examine the public records 
 of the federal jurisdiction; may visit the seat of government without being 
 subjected to the payment of a tax for the privilege ; may be purchaser of 
 the public lands on the same terms with others; may participate in the 
 government if he comes within the conditions of suffrage, and may demand 
 the care and protection of the United States when on the high seas, or 
 within the jurisdiction of a foreign government. The privileges suggest the 
 immunities. Wherever it is the duty of the United States to give protection 
 to a citizen against any harm, inconvenience, or deprivation, the citizen 
 is entitled to an immunity which pertains to federal citizenship." "One very 
 plain and unquestionable immunity," Cooley adds, " is exemption from any 
 tax burden, or imposition under state laws, as a condition to the enjoyment of 
 any right or privilege under the laws of the United States." 
 
 7123 U. S. 131; 8 Sup. Ct. Rep. 22; 31 L. ed. 80.
 
 184: UNITED STATES CONSTITUTIONAL LAW. 
 
 Federal Government, and not ro the States, yet in so far as they 
 declare or recognize rights of persons, these rights are theirs as 
 citizens of the United States, and the Fourteenth Amendment as 
 to such rights limits state power as the ten Amendments had lim- 
 ited federal power." 
 
 The court, however, found that, in fact, no right of Spies se- 
 cured by the first eight Amendments had been violated, and that, 
 therefore, it was not necessary to pass upon this constitutional 
 point which his counsel had raised. 
 
 In Maxwell v. Dow, s however, the court found itself compelled 
 to pass specifically upon this point. The court in its majority 
 opinion denied the claim set up, asserting that the mere fact that 
 a certain privilege or immunity was guaranteed against federal 
 infringement did not operate to make such a privilege or immunity 
 distinctively federal in character. With reference to the rights 
 enumerated in the first eight Amendments, the court said : " In 
 none are the privileges or immunities granted and belonging to 
 the individual as a citizen of the United States, but they are 
 secured to all persons as against the Federal Government, entirely 
 irrespective of such citizenship. As the individual does not enjoy 
 them as a privilege of citizenship of the United States, therefore, 
 when the Fourteenth Amendment prohibits the abridgement by 
 the States of those privileges or immunities which he enjoys as 
 such citizen, it is not correct or reasonable to say that it covers 
 and extends to certain rights which he does not enjoy by reason 
 of his citizenship, but simply because those rights exist in favor 
 of all individuals as against the federal governmental powers. 
 The nature of the character of the right of trial by jury is the 
 same in a criminal prosecution as in a civil action, and in neither 
 case does it spring from nor is it founded upon the citizenship of 
 the individual as a citizen of the United States, and if not, then 
 it cannot be said that in either case it is a privilege or immunity 
 which alone belongs to him as such citizen." : 
 
 s 176 U. S. 581; 20 Sup. Ct. Rep. 448; 44 L. ed. 597. 
 
 9 Justice Harlan rendered a dissenting opinion in the course of which he 
 said: "It seems to me that the privileges and immunities enumerated in
 
 FEDERAL SUPEBVISION OF STATE ACTIVITIES. 185 
 
 88. Suffrage not a Necessary Incident of Citizenship. 
 
 In !Minor v. Happersett 10 it was held that the suffrage is not 
 a right springing from federal citizenship. This doctrine was 
 declared in passing upon the claim made in that case by a woman 
 that because of her federal citizenship she could not constitution- 
 ally be disqualified from voting on account of her sex. In pass- 
 ing upon this claim the court admitted that citizenship was not 
 dependent upon sex, but denied that the right of suffrage was 
 necessarily attached to the status of citizenship. 11 
 
 these Amendments belong to every citizen of the United States. They were 
 universally so regarded prior to the adoption of the Fourteenth Amendment. 
 In order to form a more perfect union, establish justice, insure domestic 
 tranquillity, provide for the common defense, promote the general welfare, and 
 secure the blessings of liberty to themselves and their posterity, the political 
 community known as the people of the United States ordained and established 
 the Constitution of the United States ; and every member of that political 
 community was a citizen of the United States. It \vas that community that 
 adopted in the mode prescribed by the Constitution, the first ten Amendments; 
 and what they had in view by so doing was to make it certain that the 
 privileges and immunities therein specified the enjoyment of which, the 
 fathers believed, were necessary in order to secure the blessings of liberty 
 could never be impaired or destroyed by the National Government. ... It does 
 rot solve the question before us to say that the first ten Amendments had 
 reference only to the powers of the National Government, and not to the 
 powers of the States. For, if, prior to the adoption of the Fourteenth Amend- 
 ment, it was one of* the privileges or immunities of citizens of the United 
 - that they should not be tried for crime in any court organized or 
 existing under national authority except by a jury composed of twelve persons, 
 1. \v can it be that a citizen of the United States may now be tried in a 
 state court for crime, particularly for an infamous crime, by eight jurors, 
 when that Amendment expressly declares that ' no State shall make or enforce 
 any law which shall abridge the privileges or immunities of the citizens of the 
 United States?'" 
 
 1021 Wall. 1G2; 22 L. ed. 627. 
 
 11 The court say: " Sex has never been made one of the elements of citizen- 
 ship in the United States. In this respect men have never had an advantage 
 over women. The same laws precisely apply to both. The Fourteenth Amend- 
 ment did not affect the citizenship of women any more than "it did of men. 
 In this particular, therefore, the rights of Mrs. Minor do not depend upon the 
 Amendment. She has always been a citizen from her birth, and entitled to 
 all the privileges and immunities of citizenship. The Amendment prohibited 
 the State, of which she is a citizen, from abridging any of her privileges and 
 immunities as a citizen of the United States; but it did not confer citizenship
 
 186 UNITED STATES 'CONSTITUTIONAL LAW. 
 
 89. Legislative Power Granted Congress by the Fourteenth 
 Amendment. 
 
 From the foregoing cases it appears that the clause of the 
 Fourteenth Amendment which declares that " So State shall 
 make or enforce any law which shall abridge the privileges or 
 immunities of citizens of the United States," has not given to the 
 General Government any legislative or even supervisory power 
 which it did not possess before the Fourteenth Amendment was 
 adopted. 
 
 In another important case it has been held that the last clause 
 of the Amendment which empowers Congress to enforce its pro- 
 visions by appropriate legislation, does not give to that body a 
 direct legislative power to define and establish the rights of life, 
 liberty, and property of which the individual may not be deprived 
 by the States without due process of law, or to define and estab- 
 lish what shall constitute the equal protection of the laws which 
 the States may not deny to persons within their jurisdiction. 
 
 In 1875, in pursuance of an authority which it conceived to be 
 granted by the Fourteenth Amendment, Congress passed a so- 
 called Civil Rights Act, fixing generally the penalties to which 
 state officials should be subject for depriving any citizen of the 
 United States of any of the rights secured him by the Thirteenth 
 and Fourteenth Amendments, and declaring* specifically that 
 negroes should receive the same treatment at public inns, hotels, 
 
 on her. That she had before its adoption. . . . The Amendment did not 
 add to the privileges and immunities of a citizen. It simply furnished an 
 additional guaranty for the protection of such as lie already had. Xo new 
 voters were necessarily made by it. Indirectly it may have had that effect, 
 because it may have increased the number of citizens entitled to suffrage 
 under the Constitution and laws of the States, but it operates for this pur- 
 pose, if at all, through the States and the state laws, and not directly upon 
 the citizen. It is clear, therefore, we think, that the Constitution has not 
 added the right of suffrage to the privileges and immunities of citizenship as 
 they existed at the time it was adopted." Continuing the court showed that 
 in no case had the suffrage in the States been considered as co-extensive with 
 citizenship, and concluded : " Certainly, if the courts can consider any ques- 
 tion as settled, this is one. For nearly ninety years the people have acted 
 upon the idea that the Constitution, when it conferred citizenship did not 
 necessarily confer the right of suffrage."
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES. 187 
 
 railways, theaters, etc., as that enjoyed by white persons. The 
 importance of this act lay in the fact that by passing it Congress 
 indicated that it interpreted the Fourteenth Amendment as giv- 
 ing it power not simply to punish persons who should deprive 
 others of any of the rights mentioned in that Amendment, but as 
 empowering itself to determine specifically what those rights 
 should be. If this were to be accepted as the correct interpreta- 
 tion of the power of Congress under this Amendment, it was clear 
 that the reserved powers of the States would henceforth be at the 
 mercy of the federal legislative body; for thus the way would 
 be opened to Congress, should it see fit, to convert by its statutes 
 all private rights into federal rights and as such exclude them 
 from state regulation or violation. 
 
 In the Civil Rights Cases, 12 decided in 1883, the court laid 
 down, authoritatively and finally, the doctrine that it is not within 
 the legislative power of Congress to define what are the civil 
 rights of individuals, and to affix and enforce penalties for their 
 denial by private persons. Hence the court held unconstitutional 
 and void those portions of the Civil Rights Act of 1875 which 
 attempted to do this. " Individual invasion of individual rights," 
 the court say, " 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 in- 
 jures them in life, liberty, or property without due process of 
 law, or which denies to them the equal protection of the laws. It 
 not only does this, but in order that the national will, thus de- 
 clared, may not be a mere brutum fulmen, the last section of the 
 Amendment invests Congress with power to enforce it by appro- 
 priate legislation. To enforce what ? To enforce the prohibition. 
 . . . It does not authorize Congress to create a code of munici- 
 pal 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 Amendment." The im- 
 
 " 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835.
 
 188 UNITED STATES CONSTITUTIONAL LAW. 
 
 portance of the doctrine declared in the Civil Rights Cases is seen 
 when the results that would have followed from a different con- 
 struction of the Amendment are considered. If the Civil Eights 
 Act had been held appropriate for enforcing the prohibitions of 
 that article it would have been, as the court observes, difficult to 
 set limits to the powers of Congress. With equal authority, that 
 body would have the right to enact a detailed code of laws for the 
 enforcement and protection of all the rights of life, liberty, and 
 property, and itself to prescribe what should constitute due 
 process of law in every possible case. 13 
 
 It will have been noticed that the doctrine of the Civil Rights 
 Cases depended in large measure upon the assertion that the pro- 
 hibitions of the Fourteenth Amendment were directed exclusively 
 against state acts, that is, acts authoritatively sanctioned by the 
 States as such, or officially performed by their agents, and that 
 they had not reference to the acts of private individuals. The 
 doctrine had already been established in a line of cases decided 
 prior to the Civil Rights Cases. 
 
 In Strauder v. West Virgina 14 it was held that a state law 
 which excluded negroes from jury service was unconstitutional as 
 a denial to members of that race of the equal protection of the 
 laws. In Virginia v. Rives 15 the question was not as to the ex- 
 istence of a state law excluding negroes from jury service, but as 
 
 is As construed in the Civil Rights Cases it is to be noted that the federal 
 legislative power granted by the Fourteenth Amendment is narrower than 
 that granted by the enforcement clause of the Thirteenth Amendment. This 
 distinction the court in its majority opinion in the Civil Rights Cases point 
 cut in the following language: "This [Thirteenth] Amendment, as well as 
 the Fourteenth, is undoubtedly self -executing without any ancillary legisla- 
 tion, so far as its terms are applicable to any existing state of circumst;n 
 I>y 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 arTected 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." 
 
 14100 U. S. 303; 25 L. ed. 664. 
 
 is 100 U. S. 313; 25 L. ed. 667.
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES. 189 
 
 to the administration of a law, not in terms discriminative, in 
 such a way as to exclude negroes from juries. This suit was 
 sought to be removed into the federal courts under the provision 
 of section 641 of the Revised Statutes. 16 AYithout deciding 
 whether or not Congress had, under the enforcement clause of the 
 Fourteenth Amendment, the power to grant relief in cases such 
 as that presented by the petitioner, the Supreme Court held that 
 the suit was not within the terms of the statute. 
 
 In Ex parte Virginia 3 ' a somewhat different state of facts was 
 presented. Here there was no state law the constitutionality of 
 wHich was questioned, but a judge of a state court charged by the 
 law of that State with the duty of selecting jurors indicted in a 
 federal court for excluding from the grand and petit jury list a 
 certain individual because of his race or color, in violation of a 
 provision of the Act of Congress of 1875. Upon a petition of the 
 accused to the Supreme Court of the United States for a writ of 
 habeas corpus or a writ of eertiorari to bring up the record of the 
 lower court in order that he might be dismissed, the Supreme 
 Court denied the writs, holding, in effect, that this act of the 
 judge, involving no necessary exercise of judicial discretion, and 
 committed by him in his official capacity as judge, was an act of 
 the State which he represented, and as such came within the pro- 
 hibition of the Fourteenth Amendment. The opinion declares: 
 " The prohibitions of the Fourteenth Amendment are addressed 
 to the States. The constitutional Amendment was ordained for 
 a purpose. It was to secure equal rights to all persons, and, to 
 insure to all persons the enjoyment of such rights, power was 
 
 is Sec. G41. "When any civil suit or criminal prosecution is commenced in 
 any state court for any cause whatsoever against any person who is denied, or 
 cannot enforce, in the judicial tribunals of the State, or in any part of the 
 State where such prosecution is pending, any right secured to him by any law 
 providing for the equal rights of citizens of the United States, or of all 
 persons within the jurisdiction of the United States, . . . such suit or 
 prosecution may, upon the petition of each defendant, filed in said court at 
 any tini before the trial, or final hearing of the case, stating the facts, and 
 verified by oath, be removed before trial into the next circuit court of the 
 United States to be held in tlu> district where it is pending." 
 
 "100 U. S. 339; 25 L. ed. 676.
 
 190 UNITED STATES CONSTITUTIONAL LAW. 
 
 given to Congress to enforce its provisions by appropriate legis- 
 lation. Such legislation must act upon persons, not upon the 
 abstract thing denominated a State, but upon the persons who are 
 the agents of the State in the denial of the rights which were in- 
 tended to be secured. Such is the Act of March 1, 1875, 18 Stat. 
 at L. 336, and we think it was fully authorized by the Constitu- 
 tion We do not perceive how holding an office under 
 
 a State and claiming to act for the State can relieve the holder 
 from the obligation to obey the Constitution of the United 
 States, or take away the power* of Congress to punish his 
 disobedience. 18 
 
 is In this case Justice Field rendered a dissenting opinion, in which he 
 assumed, in the first place, that so much of the Act of 1875 as attempted 
 to regulate the selection of jurors in state courts was unconstitutional and 
 void; in the second place, that the selection of jurors by the judge was a 
 judicial act involving an exercise of discretion and judgment, and, therefore, 
 not subject to enforcement in a particular manner by statute or mandamus, 
 in any event; and, in the third place, that the right to serve as a juror is a 
 political and not a civil right, and therefore not one, the equal enjoyment of 
 which is secured to all by the Fourteenth Amendment. With reference to the 
 purpose for which the war amendments had been adopted Justice Field said: 
 " They do not, in terms, contravene or repeal anything which previously 
 existed in the Constitution and those Amendments. Aside from the extinction 
 of slavery, and the declaration of citizenship, their provisions are merely 
 prohibitory upon the States; and there is nothing in their language or purpose 
 which indicates that they are to be construed or enforced in any way different 
 from that adopted with reference to previous restraints upon the States. 
 The provision authorizing Congress to enforce them by appropriate legislation 
 does not enlarge their scope, nor confer any authority which would not have 
 existed independently of it. Xo legislation would be appropriate which should 
 contravene the express prohibitions upon Congress previously existing, as, for 
 instance, that it should not pass a bill of attainder or an ex post facto law. 
 Nor would legislation be appropriate which should conflict with the implied 
 prohibitions upon Congress. They are as obligatory as the express prohibi- 
 tions. The Constitution, as already stated, contemplates the existence and 
 independence of the States in all their reserved powers. ... I cannot think 
 I am mistaken in saying that a change so radical in the relation between the 
 federal and state authorities, as would justify legislation interfering with the 
 independent action of the different departments of the state governments, in 
 all matters over which the States retain jurisdiction, was never contemplated 
 by the recent Amendments. The people, in adopting them, did not suppose 
 that they were altering the fundamental theory of their dual system of gov- 
 ernments."
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES. 191 
 
 These general principles that the prohibitions of the Amend- 
 ment are upon the State and not upon individuals ; that Congress 
 has no primary and direct legislative authority to define and en- 
 force the rights guaranteed by the Amendment; that the general 
 "police powers" are still possessed by the States; have not 
 been departed from by the court in subsequent cases. In Logan 
 v. United States, 19 decided in 1892, the court, after a review of 
 previous adjudications, say: " The whole scope and effect of this 
 series of decisions is that, . . . certain fundamental rights, 
 recognized and declared, but not granted or created in some of the 
 Amendments to the Constitution, are thereby guaranteed only 
 against violation or abridgement by the United States or by the 
 States, as the case may be, and cannot, therefore, be affirmatively 
 enforced by Congress against unlawful acts of individuals." The 
 court, however, add the cautionary remark that " every right cre- 
 ated by, arising under or dependent upon the Constitution of the 
 
 Some commentators have found difficulty in harmonizing the decision in 
 Ex parte Virginia with that rendered in Virginia v. Rives. Thus, for example, 
 Wise in his Treatise on American Citizenship, p. 205, says: " It is impossible 
 to reconcile the decision in Ex parte Virginia with the others. ... As they 
 stand the two cases of Virginia v. Rives and Ex parte Virginia present an 
 amusing line of demarcation. In Virginia v. Rives the misconduct of a 
 sheriff in the method of summoning a jury was declared not to be the aetion 
 of the State and to be remediable on appeal. In the case of Ex parte Virginia, 
 decided on the same day, the misconduct of a judge in not summoning a 
 proper jury was held to be the action of the State, remediable by the indict- 
 ment of the judge although the State had done no wrong. The only legal 
 principle to be deduced from the two decisions is that the boundary line 
 between one officer who is the State and an ofiicer who is not the State, lies 
 somewhere between a sheriff and a judge." 
 
 There is, however, no real incongruity in the cases, and Wise's difficulty 
 arises from an imperfect understanding of the actual point decided in Virginia 
 v. Rivc=. In that case, it was held, as we have seen, simply that the case did 
 not come within the section 641 of the Revised Statutes, under which removal 
 had been had from the state to the federal courts. Thus, in effect, all the 
 court decided was, not that Congress had no power under the Fourteenth 
 Amendment to punish or correct such an act as that of the sheriff complained 
 of, but that it had not, in fact, so legislated. In Ex parte Virginia the act 
 complained of was construed to be within the scope of the prohibitions of the 
 Act of Congress of 1^7~>. 
 
 19144 U. S. 263; 12 Sup. Ct. Rep. 617; 36 L. ed. 429.
 
 192 UXITED STATES CONSTITUTIOXAI. LAW. 
 
 United States, may be protected and enforced by Congress by 
 such means and in such manner as Congress, in the exercise of 
 the correlative duty of protection, or of the legislative powers 
 conferred upon it by the Constitution may in its discretion seeni 
 most eligible and best adapted to attain the objei-t.'' 
 
 See also in James v. Bowman, 20 decided as late as 1903, the 
 cases are re-examined and the principles declared in them fully 
 approved. 
 
 Although by the decision in the Slaughter House and subse- 
 quent cases in the Supreme Court, the command laid upon the 
 States to respect federal privileges and immunities has thus been 
 shorn of all but declaratory significance, and the general police 
 powers confirmed in the Commonwealths, the other prohibitions 
 of the first section of the Fourteenth Amendment have been so 
 construed by the Supreme Court as to give to the Federal Govern- 
 ment a very extensive supervisory jurisdiction over state legisla- 
 tion which it did not possess prior to 1868. "Whenever a claim 
 has been made that a state law has worked a deprivation of life, 
 liberty, or property without due process of law, or has resulted 
 in a denial to any person of the equal protection of the laws, the 
 federal courts have assumed jurisdiction and declared such stat- 
 utes void. Illustrations of this federal supervisory power will 
 appear throughout this treatise. 
 
 It is true that, in the Slaughter House Cases, the court declared, 
 relative to the clause providing for the equal protection of the 
 laws : " 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," but this obiter dictum has been 
 repeatedly overruled. 
 
 M190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979. as to the power of 
 Congress to provide for the punishment of individuals interfering with, or 
 conspiring to interfere with the exercise by others of rights created by or 
 dependent upon the federal constitution or laws, see Ex parte Yarb rough, 110 
 U. S. 651; 4 Sup. Ct. R,-p. 1.12: 28 L. ed. 274; U. S. v. Waddell, 112 U. S. 
 76; 5 Sup. Ct. Rep. 35; 28 L. ed. 673; Motes v. U. S., 178 U. S. 458; 20 Sup. 
 Ct. Rep. 993; 44 L. ed. 1150.
 
 FEDERAL SUPERVISION OF STATE ACTIVITIES. 193 
 
 90. Summary. 
 
 By way of resume we may say that, as interpreted by the 
 Supreme Court, the adoption of the Fourteenth Amendment has 
 not brought about any fundamental change in our constitutional 
 system. Xo'new subjects have been brought within the sphere of 
 direct control of the Federal Government. Xo new privileges 
 and immunities of fedend c-itizeuship have been created or recog- 
 nized. To Congress has been given no new direct primary, legis- 
 lative power. It has not been authorized by the Amendment to 
 determine and define the privileges and immunities of federal 
 citizens, nor to define and affirmatively to provide for the protec- 
 tion of the rights of life, liberty, and property, nor by direct 
 legislation to enumerate and describe the privileges which shall 
 constitute the equal protection of the laws. The only legislative 
 power granted to Congress by the Amendment, is the power to 
 provide modes of relief in cases where the States have deprived 
 individuals or corporations of life, liberty, or property without 
 due process of law, or denied to anyone within their jurisdiction 
 the equal protection of the laws. The supervisory powers of the 
 federal courts has been enormously increased ; as, by the Amend- 
 ment, they may examine every claim of illegal violations by States 
 of the prohibitions laid upon them by the Amendment, and where 
 the claim is sustained grant the necessary relief, either by the 
 issuance of the appropriate writ, or by holding void the offending 
 state laws. In fine, then, the Fourteenth Amendment has oper- 
 ated rather as a limitation upon the powers of the States than as 
 a grant of additional powers to the General Government. 
 13
 
 CHAPTER XII. 
 
 INTERSTATE RELATIONS ; FULL FORCE AND CREDIT CLAUSE. 
 
 
 
 91. States Independent of One Another. 
 
 In the chapters which have been gone before the constitutional 
 relations which exist between the Federal Government upon the 
 one side and the State upon the other side have been considered. 
 In the present chapter a description will be given of the relations 
 which exist between the several States. 
 
 Except as otherwise specifically provided by the federal Con- 
 stitution, the States of the American Union, when acting within 
 the spheres of government reserved to them, stand toward one 
 another as independent and wholly separated States. The laws 
 of the 'State have no force, and their officials have here no public 
 authority, outside of their own territorial boundaries. As to all 
 these matters their relations inter se are governed by the general 
 principles of Private International Law or, as otherwise termed, 
 the Conflict of Laws. 
 
 During the colonial period the judgments of the courts of the 
 colonies were, as to one another, strictly foreign judgments. That 
 is, they could be impeached for fraud or prejudice, and their 
 merits re-examined. The inconvenience of this state of affairs 
 was soon recognized, and in the Articles of Confederation it was 
 provided that " Full faith and credit shall be given in each of 
 these States to the records, acts, and judicial proceedings of the 
 courts and magistrates of every other State." 1 The important 
 difference between this provision and the corresponding one in the 
 present Constitution is that in the latter Congress is given au- 
 thority to fix by statute the manner in which these acts, records, 
 and proceedings shall be proved and to determine the effect that 
 shall be given them. 
 
 i Article IV. 
 
 [194]
 
 INTEBSTATE RELATIONS : FULL FORCE AND CEEDIT CLAUSE. 195 
 
 92. Congressional Legislation. 
 
 By a law passed in 1790 Congress provided: " That the acts 
 of the legislature of the several States shall be authenticated by 
 having the seal of their respective States affixed thereto; that the 
 records and judicial proceedings of the courts of any State shall 
 be proved or admitted in any court within the United States by 
 the attestation of the clerk, and the seal of the court annexed, if 
 there be a seal, together with a certificate of the judge, chief 
 justice, or presiding magistrate, as the case may be, that the 
 said attestation is in due form. And the said records and judicial 
 .proceedings authenticated as aforesaid shall have such faith and 
 credit given to them in every -court within the United States, as 
 they have by law or usage in the courts of the State from whence 
 the said records are or shall be taken." 2 
 
 In 1809 this act was supplemented by one which, after pro- 
 viding for the authentication of other than judicial records, de- 
 clared, in its second section: "And be it further enacted, that 
 all the provisions of this act, and the act to which this is a supple- 
 ment [Act of 1790] shall apply as well as to the public acts, 
 records, office books, judicial proceedings, courts, and offices of 
 the respective territories of the United States and countries sub- 
 ject to the jurisdiction of the United States, as to the public acts, 
 records, office books, judicial proceedings, courts and officers of 
 the several States." 3 
 
 In Mills v. Duryee 4 decided in 1813, the Supreme Court, con- 
 struing these acts held that by them Congress had not only pro- 
 vided for the admission of authenticated judgments of a State 
 as evidence in the courts of the other States in the Union, but 
 that it had, in execution of the constitutional .provision, declared 
 that they should be conclusive evidence of all matters properly 
 adjudicated therein. 
 
 ~ 2 1 U. S. Stat. at L. 122. 
 
 s 2 U. S. Stat. at L. 298. These two sections are united in section 905 of 
 the Revised Statutes. In a law enacted in 1895 it is provided by Congress 
 that: "The pamphlet copies of the statutes and the bound copies of the Acts 
 of each Congress shall be legal evidence of the laws therein contained in all 
 the courts of the United States and of the several States therein." Section 73, 
 Act of Jan. 2, Ch. 23 (28 Stat. at L. 601). 
 
 <7 Cr. 481; 3 L. ed. 411.
 
 196 UNITED STATES CONSTITUTIONAL LAW. 
 
 This full faith and credit clause, it is to be observed, has refer- 
 ence only to the States, and not to the Territories or to the Dis- 
 trict of Columbia. Therefore it has been decided that the act 
 of 1804, in as far as it has reference to the Territories and to the 
 District of Columbia, rests, for its constitutionality, upon other 
 clauses of the Constitution. Thus in Embry v. Paliner 5 the court 
 say: " So far as this statutory provision relates to the effect to 
 be given to the judicial proceedings of the States, it is founded 
 on article IV, section I, of the Constitution, which, however, does 
 not extend to the other cases covered by the statute. The power 
 to prescribe what effect shall be given to the judicial 'proceedings 
 of tie courts of the United States is conferred by other provisions 
 of the Constitution, such as those which declare the extent of the 
 judicial power of the United States, which authorize all legisla- 
 tion necessary and proper for executing the powers vested by the 
 Constitution in the Government of the United States, or in any 
 department or officer thereof, and which declare the supremacy 
 of the authority of the oSTational Government within the limits 
 of the Constitution. As part of its general authority, the power 
 to give effect to the judgments of its courts is co-extensive with 
 its territorial jurisdiction. That the Supreme Court of the Dis- 
 trict of Columbia is a court of the United States, results from 
 tte right which the Constitution has given to Congress of exclu- 
 sive legislation over the District. Accordingly, the judgments 
 of the courts of the United States have invariably been recog- 
 nized as upon the same footing, so far as concerns the obligation 
 created by them, with domestic judgments of the States, wher- 
 ever rendered and wherever sought to be enforced." 
 
 The same reasoning that in Embry v. Palmer seems to support 
 the power of Congress to give to judgments rendered in the Dis- 
 trict of Columbia full force and credit in the States, is sufficient 
 to support its power to give equal force in the States to judgments 
 rendered in the Territories and insular possessions of the United 
 States, and vice versa as to state judgments sued upon in the 
 Territories or in the insular possessions. 
 
 6107 U. S. 3; 2 Sup. Ct. Rep. 25; 27 L. ed. 346.
 
 INTERSTATE RELATIONS : FULL FORCE AXD CREDIT CLAUSE. 197 
 
 93. Federal Judgments and Decrees. 
 
 Iii numerous eases it has been held that full force and credit 
 is to be given to judgments of federal courts obtained in one 
 State or Territory when sought to be enforced in the federal courts 
 in another State or Territory, or the District of Columbia. This 
 is due to the fact that, as the Supreme Court say in Claflin v. 
 Houseman, 6 " The United States is not a foreign sovereignty as 
 regards the several 'States, but is a concurrent, and, within its 
 jurisdiction, a paramount sovereignty. Every citizen of a State 
 is a subject of two distinct sovereignties, having concurrent juris- 
 diction in the State, concurrent as to place and persons, though 
 distinct as to subject-matter. Legal or equitable righfts, acquired 
 under either system of laws, may be enforced in any court of 
 either sovereignty competent to hear and determine such kinds 
 of rights and not restrained by its Constitution in the exercise 
 of such jurisdiction. Thus, a legal or equitable right acquired 
 under state laws may be prosecuted in the state courts, and also, 
 if the parties reside in different States, in the federal courts. So 
 rights, whether legal or equitable, acquired under the laws of 
 the United States, may be prosecuted in the United States courts, 
 or in the state courts, competent to decide rights of the like 
 character and class; subject, however, to this qualification, that 
 where a right arises under a law of the United States, Congress 
 may, if it sees fit, give to the federal courts exclusive jurisdiction." 
 
 94. Full Faith and Credit Clause Applies only to Civil Judg- 
 ments and Decrees. 
 
 It seems scarcely necessary to say that the " full force and 
 credit " clause has reference only to civil judgments. Xo State, 
 it has been held, is by this provision compelled to lend its aid 
 in the enforcement of the penal laws of another. This was 
 definitely determined in Wisconsin v. Pelican Insurance Com- 
 pany. 7 In this case original suit had been brought in the Su- 
 preme Court of the United States by the State of Wisconsin upon 
 
 603 U. S. 130; 23 L. ed. 833. 
 
 7 127 U. S. 265; 8 Sup. Ct. Rep. 1370; 32 L. ed. 239.
 
 198 UNITED STATES CONSTITUTIONAL LAW. 
 
 a judgment obtained in its own courts against an insurance 
 company, a Louisiana corporation, for penalties imposed by a 
 statute of Wisconsin for not making returns to the insurance 
 commissioners of the State. The federal court held that the 
 grant to it of original jurisdiction in suits between a State and 
 citizens of another State, though given in general terms, was not 
 to be construed to extend to actions brought by a State, to enforce 
 even indirectly in another jurisdiction a provision of its own 
 penal law. The court say: "The grant is of 'judicial power/ 
 and was not intended to confer upon the courts of the United 
 States jurisdiction of a suit or prosecution by the one State, of 
 such a nature that it could not, on the settled principles of public 
 and international law, be entertained by the judiciary of the 
 other State at all. . . . The rules that the courts of no country 
 execute the penal laws of another applies not only to prosecu- 
 tions and sentences for crimes and misdemeanors, but to all suits 
 in favor of the State for the recovery of pecuniary penalties for 
 any violation of statutes for the protection of its revenue, or 
 other municipal laws, and to all judgments for such penalties. 
 If this were not so, all that would be necessary to give ubiquitous 
 effect to a penal law would be to put the claim for a penalty into 
 the shape of a judgment," 
 
 95. Full Faith and Credit Clause Establishes a Rule of Evi- 
 dence. 
 
 The application of the foregoing rule, the court go on to say, 
 is not affected by the full faith and credit clause. That clause, 
 and the acts of Congress under it, it is declared, establish a rule 
 of evidence rather than of jurisdiction. " While they make the 
 record of a judgment, rendered after due notice in one State, 
 conclusive evidence in the courts of another State or of the 
 United States, of the matter adjudged, they do not affect the 
 jurisdiction either of the court in which the judgment is ren- 
 dered or of the court in which it is offered in evidence. Judg- 
 ments recovered in one State of the Union, when proved in the 
 courts of another government, whether state or national, within
 
 INTERSTATE RELATIONS : FULL FORCE AND CREDIT CLAUSE. 199 
 
 the United States, differ from judgments recovered in a foreign 
 country in no other respect than in not being re-examinable on 
 their merits, nor impeachable for a fraud in obtaining them, if 
 rendered by a court having jurisdiction of the cause and of the 
 parties. In the words of Justice Story, . . . ' the Constitu- 
 tion did not mean to confer any new power upon the States, but 
 simply to regulate the effect of their acknowledged jurisdiction 
 over persons and things within their territory. It does not make 
 the judgments of other States domestic judgments to all intents 
 and purposes, but only gave a general validity, faith, and credit 
 to them as evidence. No execution can issue upon such judg- 
 ments without a new suit in the tribunals of other States. And 
 they enjoy not the right of priority or lien which they have in 
 the State where they are pronounced, but that only which the 
 lex fori gives to them by its own laws in their character of 
 foreign judgments.' ' 
 
 As being simply evidence, judgments of the courts of one 
 State, when sued upon in another State, are subject, as regards 
 procedure and remedies, to the law of the latter State. For 
 example, the statute of limitations of the State where suit is 
 brought is applied even though it provides a shorter term of 
 years than that existing in the State in which the judgment was 
 originally obtained. 8 
 
 It has been held in numerous cases that each State of the Union 
 may enforce in its own courts which have jurisdiction of the 
 parties and subject-matters, civil rights of action depending solely 
 upon the statutes of another State, provided there be no local 
 policy of the forum inconsistent therewith. Thus in Dennick v. 
 Central R. R. Co. 9 with reference to a suit for damages brought 
 in New York under an act of New Jersey, the court say : " It 
 is scarcely contended that the act belongs to the class of criminal 
 laws which can only be enforced by the courts of the State where 
 the offense was committed, for it is, though a statutory remedy, 
 
 sMcElmoyle v. Cohen, 13 Pot. 312; 10 L. ed. 177; Bacon v. Howard, 20 How. 
 22; 15 L. ed. 811. 
 
 9103 U. S. 11; 26 L. ed. 439.
 
 200 UMTED STATES COSSTITL'TIOXAL LAW. 
 
 a civil action to recover damages for a civil injury. It is, indeed, 
 a right dependent solely on the statute of the State, but when 
 the act is done for which the law says the person shall be liable 
 and the action, by which tlie remedy is to be enforced, is a per- 
 sonal and not a real action, and is of that character which the 
 law recognizes as transitory and not local, we cannot see why the 
 defendant may not be held liable in any court to whose jurisdic- 
 tion he can be subjected by personal process or by voluntary 
 appearance, as was the case here. It is difficult to understand 
 how the nature of the remedy or the jurisdiction of the courts 
 to enforce it is in any manner dependent on the question whether 
 it is a statutory right or a common law right. Wherever, by 
 either the common law or the statute law of a State, a right of 
 action has become fixed, and a legal liability incurred, that lia- 
 bility may be enforced and the right of action pursued in any 
 court which has jurisdiction of such matters and can obtain juris- 
 diction of the parties." 10 
 
 In Slater v. Mexican Xational R. R. Co., n applying the same 
 doctrine, the court say: "When such a liability is enforced in 
 a jurisdiction foreign to the place of the wrongful act, obviously 
 that does not mean that the act in any degree is subject to the lex 
 fori with regard to either its quality or its consequences. On the 
 other hand, it equally little means that the law of the place of 
 the act is operative outside of its own territory. The theory of 
 the foreign suit is that, although the act complained of was sub- 
 ject to no law having force in the forum, it gave rise to an obli- 
 gation, an obligaiio which, like other obligations, follows the per- 
 son and may be enforced wherever the person may be found." 
 
 In this case the court go on to declare, however, that if the only 
 source of obligation be the law of the place of the act, that law de- 
 termines not merely the existence of the obligation, but its 
 extent. "It seems to us unjust,'' the court say, '' to allow the 
 plaintiff to conie here absolutely depending on the foreign law 
 
 i.o See also Stewart v. B. & 0. K. R. Co., 168 U. S. 445; 18 Sup. Ct. Rep. 
 105 ; 42 L. ed. 537. 
 11 194 U. S. 120; 24 Sup. Ct. Rep. 581; 48 L. ed. 900,
 
 INTERSTATE RELATIONS : FULL FORCE AND CREDIT CLAUSE. 201 
 
 for the foundation of his ease, and yet to deny the defendant the 
 benetit of whatever limitations on his liability that law would 
 impose." 
 
 This doctrine is again affirmed and applied in Atchison, etc., 
 E. Co. v. Sowers. 12 
 
 i 
 
 96. Judgments in Rem and in Personam. 
 
 The validity of judgments or decrees in States other than those 
 in which they are obtained depends upon the court which ren- 
 dered them having obtained jurisdiction. -In order to obtain 
 jurisdiction in actions in rem, the res must be located in the State. 
 In all actions service of notice of the commencement of the suit 
 mrrst be had upon the defendants. In actions in rein this service 
 need not be actual, but may be constructive, that is, by publication 
 In actions in personam, however, actual service is required. Mere 
 constructive service will not warrant a personal judgment or de- 
 cree which may be sued upon in another jurisdiction. This 
 doctrine is carefully laid down in Pennoyer v. Xeflf. 13 In its 
 opinion in this case the court say: " It is in virtue of the Stated 
 jurisdiction over the property of the non-residents situated within 
 its limits that its tribunals can inquire into that non-resident's 
 obligations to its own citizens, and the inquiry can then be car- 
 ried only to the extent necessary to control the disposition- of the 
 property. If the non-residents have no property in the State, 
 there is nothing upon which the tribunals can adudicate. 
 . . . "Where a party is within a territory, he may justly be 
 subjected to its process, and bound personally by the judgment 
 pronounced on such process against him. Where he is not within 
 such territory, and is not personally subject to its laws, if on 
 account of his supposed or actual property being within the ter- 
 ritory, process by the local laws may, by attachment, go to com- 
 pel his appearance, and for his default to appear, judgment may 
 be pronounced against him; such a judgment inii.-t. upon gen- 
 eral principles, be deemed to bind him only to tho extent of such 
 
 12 213 I'. S. :wfl; 29 Sup. Ct. Rep. 307; 53 L. <1. 695. 
 1395 U. S. 714; 24 L. cd. 565.
 
 202 UNITED STATES CONSTITUTIONAL LAW. 
 
 property, and cannot have the effect of a conclusive judgment in 
 personam, for the plain reason that, except so far as the property 
 is concerned, it is a judgment coram non judice." 
 
 The inability of the courts of one State to effect by their judg- 
 ments or decisions property having its legal situs in another State 
 % is illustrated in the recent case of Fall v. Eastin, 14 in which it was 
 held that a deed to a piece of land located in Nebraska made by 
 a commissioner in the State of Washington under the order of 
 a court of that State need not, under the full faith and credit 
 clause, be recognized in the former State. The court point out 
 that had the plaintiff in error obeyed the order of the Washing- 
 ton court and made, as directed, a deed of conveyance, that con- 
 veyance would have received recognition in the Nebraska courts. 
 But he having refused to do this, and the deed having been made 
 by a commissioner, the conveyance was to be considered as a part 
 of the proceedings in the court which ordered it, which court was 
 without power to affect the title of real property not within the 
 State. As to this the court quote from Watkins v.. Holman, 15 
 where it is said: "A court of chancery, acting in personam may 
 well declare the conveyance of land in any other State, and may 
 enforce its decree by process against the defendant. But neither 
 the decree itself nor any conveyance under it, except by the person 
 in whom title is vested, can operate beyond the jurisdiction of the 
 court." 
 
 97. Nul Tiel Record. 
 
 From the foregoing it clearly appears that in all cases in which 
 suit is brought in one State upon a judgment rendered in another 
 State, the court in which the suit is brought may examine whether 
 the tribunal in which the judgment sued upon was rendered had 
 jurisdiction to render a personal judgment. In Fauntleroy v. 
 Lum 10 the interesting question was raised whether a court in 
 which suit is brought upon a judgment obtained in another State 
 may examine into the original facts upon which that judgment 
 
 H 30 Sup. Ct. Rep. 3. 
 
 1516 Pet. 25; 10 L. ed 873. 
 
 16210 U. S. 230; 28 Sup. Ct. Eep. 641; 52 L. ed. 1039.
 
 INTERSTATE RELATIONS : FULL FORCE AND CREDIT CLAUSE. 203 
 
 was based, and refuse to give full faith and credit to the judgment 
 if it be found that these facts were such as would not have 
 created a legal claim under the law of the State in which enforce- 
 ment of the judgment thereupon is being sought-. In this case 
 the plaintiff, a citizen of Mississippi, obtained in Missouri a judg- 
 ment against another citizen of Mississippi upon whom personal 
 service had been obtained while he was temporarily in Missouri, 
 in a suit brought upon a contract in cotton futures entered into 
 in Mississippi in which State such futures were prohibited by 
 law. The case finally reaching the federal Supreme Court, that 
 tribunal held that, the Missouri court having had jurisdiction 
 to render a personal judgment against the defendant, the full 
 faith and credit clause obligated the courts of Mississippi to give 
 to the judgment full force and credit. The court admitted that 
 in the opinion in Wisconsin v. Pelican Insurance Co. 17 language 
 was used which might imply a right in a court to examine as 
 to the original basis of the foreign judgment sued upon, but these 
 words were declared obiter, and the doctrine of that case limited 
 to the precise point decided. 
 
 In a dissenting opinion in Fauntleroy v. Lum, concurred in by 
 four justices, it was argued that in Wisconsin v. Pelican Insur- 
 ance Co. the court had held that the full faith and credit clause 
 did not preclude an examination into the basis of the foreign 
 judgment, and rightfully so, inasmuch as at the time of the adop- 
 tion of the Constitution the rules of comity universally prevail- 
 ing did not require a sovereignty to give effect to a judgment of 
 another sovereignty when to do so would be to enforce a contract 
 illegal and prohibited by the local law, when both the contract 
 and all the acts done in pursuance thereof had taken place in the 
 State where enforcement of the judgment was sought. 
 
 In this dissent reliance is also placed on Anglo-American 
 Provision Co. v. Davis Provision Co. 18 in which it was held that a 
 judgment rendered in Illinois against one corporation in favor of 
 another, both corporations being foreign to !NVw York, was not 
 
 n 127 U. S. 265; 8 Sup. Ct. Rep. 1370; 32 L. ed. 239. 
 is 191 U. S. 373; 24 Sup. Ct. Rep. 92; 48 L. ed. 225.
 
 UXITJID STATES CONSTITUTIONAL LAW. 
 
 enforceable in the courts of Xew York, because the statutes of that 
 State did not give the court jurisdiction over such an action as 
 that in which the enforcement was sought The Supreme Court 
 say: " The 'Constitution does not require the State of Xew York 
 to give jurisdiction to the [state] Supreme Court against its will. 
 If the plaintiff can find a court into which it -has a right to coine, 
 then the effect of the judgment is fixed by the Constitution and 
 the act in pursuance of it which Congress has passed. But the 
 Constitution does not require the 'State to provide such a court. 
 If the State does provide a court to which its citizens may resort 
 in a certain class of cases, it may be that citizens of other Spates 
 of the Union also would have a right to resort to it in cases of the 
 same class. But that right even when the suit was upon a judg- 
 ment of another State would not rest on the first section of article 
 IV, . . . but would depend on the second section entitling the 
 citizens of each State to all privileges and immunities of citizens 
 in the several States." 
 
 It has been held that the " full .faith and credit clause does 
 not operate to give effect in another -State to a state statute ex- 
 empting from taxation the evidence of the state debt so as to defeat 
 the collection of a tax levied by that other State upon portions 
 of the debt held by persons there residing. This was decided by 
 Bonaparte v. Tax Court, 19 the court saying: "It is insisted 
 . . . that the immunity asked for arises from Article IV, Sec- 
 tion 1, of the Constitution. . . . We are unable to give -such 
 an effect to this provision. Xo State can legislate except with 
 reference to its own jurisdiction. One State cannot exempt prop- 
 erty from taxation in another. Each State is independent of all 
 the others in this particular. . . . The debt was registered, 
 but that did not .prevent it from following the person of its owner. 
 The debt still remained a chose in action, with all the incidents 
 which pertain to that species of property. It was ' movable ' like 
 other debts, and had none of the attributes of ' immovability.' 
 The owner may be compelled to go to the debtor State to get what 
 is owing to him, but that does not affect his citizenship or his 
 
 19 104 U. S. 592 ; 26 L. ed. 945.
 
 INTERSTATE RELATIONS: Fnx FORCE AXD CREDIT CLAUSE. 
 
 domicile. The debtor State id in no respect his sovereign, neither 
 has it any of the attributes of sovereignty as to the debt it owes, 
 except such as belong to it as a debtor. All the obligations which 
 rest on the holder of the debt as a resident of the State in which 
 he d\velLj, still remain, and as a member of society he must con- 
 tribute his just share toward supporting the government whose 
 protection he claims and to whose control he has submitted 
 himself." 
 
 98. Marriage and Divorce. 
 
 The force and meaning of the " full faith and credit " clause 
 of the Constitution has been especially worked out in connection 
 with the subject of marriage and divorce and it will, therefore, be 
 proper to state briefly the positions that the Supreme Court has 
 taken upon this point. 
 
 Generally speaking, it has been held in the United States that 
 jurisdiction, to grant a divorce depends u]x>n the domicile of the 
 complainant. \Yith hardly an exception, all of the States of the 
 Union recognize the possibility of the wife obtaining a domicile 
 separate from that of her husband. Until recently, however, a 
 few States (among them Xew York) held that where the husband 
 and wife were domiciled in different 'States, decrees of divorce 
 granted in either State would not have to be given full faith and 
 credit in the other States. The unconstitutionality of this doc- 
 trine was, however, declared by the United -States Supreme Court 
 in Atherton v. Atherton. 20 
 
 181 F. S. 153; 21 Sup. Ct. Rep. 544; 45 L. ed. 794. 
 
 In all European countries, and in Spanish America, the possibility of the 
 wife (who has not obtained a judicial separation) having a nationality, 
 domicile, or residence apart from her huband is not reeogniz>d. A few of the 
 Protestant Ptutv- nf Ormirny. and possibly other State?, permit a wife living 
 apart from her liu-band to secure naturalization and then to get a divorce, 
 hut most States refuse to recognize such a divorce as valid. De Banlfreniont 
 v. IV Bnuffrnnont. Dnllox. 1S7S. IT. T. 1*76. 1. 201: 2 Hrale's Cases on Con- 
 flict of Laws. 09 (France) ; In re W's -Marriage. 2o Clunet, 385; 1 Benle's 
 Ca. -428 (Austria). In Kngland the courts now reoogni/" tlie p <!bility of a 
 wife deserted by her husband obtaining a divorce in the State where they last 
 lived together, irrespective of his present domicile. Armytage v. Armytage, 
 
 I
 
 206 UNITED STATES CONSTITUTIONAL LAW. 
 
 One State of the Union is, of course, not obliged to recognize 
 the validity of a divorce granted by a court of another State un- 
 less that State had jurisdiction to grant it, a jurisdiction which, 
 as just said, is held to depend upon the domicile of one or both 
 of the parties. ]STo valid decree of divorce can, therefore, be 
 granted, on constructive service, by the courts of a State in which 
 neither party is domiciled. 21 
 
 Where the plaintiff has not a bona. fide domicile in the State, 
 a court cannot render a decree binding in other States even if the 
 non-resident defendant voluntarily enters a personal appearance. 22 
 Of course, however, there is nothing to prevent courts of one 
 State from recognizing, if they see fit, a decree thus granted in 
 another State. The provision of the federal Constitution is 
 brought into force only when state courts refuse to grant full 
 faith and credit. 23 
 
 Finally it should be said that in all cases where the defendant 
 has not been summoned within the State, or has not voluntarily 
 appeared, the decree that is rendered has no extraterritorial force 
 except as dissolving the matrimonial status. It cannot control in 
 an extraterritorial manner questions of property rights, custody 
 of children and the payment of alimony. 
 
 1898, Pr. 179. In most European States a divorce will be recognized only if 
 obtained in the country to which the parties owe allegiance. In England the 
 divorce will be recognized only when obtained at the domicile of the husband. 
 The English court has recently recognized an American divorce obtained at the 
 wife's domicile, where the husband was domiciled in another American State 
 which recognized the divorce. Armtage v. Attorney-General, 22 T. L. R. 
 306. The court, however, took occasion to reiterate the general principle 
 that " it is -the husband's domicile which decides the tribunal to try the cause. 
 In Scotland and the other countries governed by the Roman-Dutch law there 
 is no requirement whatever of nationality or domicile, but residence of the 
 parties for a certain time within the State is sufficient. Weatherley v. 
 Weatherley, Transvaal, Prov. Rep. 66; 1 Beale's Cas. 420." This note is sub- 
 stantially quoted from the article " Constitutional Protection for Decrees of 
 Divorce," by Joseph H. Beale, Jr., in the Haward Law Review, June, 1906 
 (XIX, 589). 
 
 21 Bell v. Bell, 181 U. S. 175; 21 Sup. Ct. Rep. 551; 45 L. ed. 804. 
 
 22 Andrews v. Andrews, 188 U. S. 14; 23 Sup. Ct. Rep. 237; 47 L. ed. 366. 
 23Lynde v. Lynde, 181 U. S. 183; 21 Sup. Ct. Rep. 555; 45 L. ed. 810. 
 
 '
 
 INTERSTATE RELATIONS : FULL FOKCE AND CfiEDIT CLAUSE. 207 
 
 Until the decision in 1906 of the case of Haddock v. Haddock, 24 
 it had been supposed that a decree of divorce granted the husband 
 or wife by a court of the State in which he or she was domiciled, 
 if the notice of the beginning of the suit required by the local 
 law had been served actually or constructively upon the other 
 party, was in all cases valid in other States. This, it had been 
 thought, had been determined in Atherton v. Atherton. 25 
 
 In Atherton v. Atherton a divorce had been granted, on the 
 ground of desertion, to a husband in Kentucky whose wife had 
 left him and taken up residence in New York. She had not 
 appeared in the suit, but notice had been served upon her by 
 mail. The highest court of New York refused to give effect to 
 this decree upon the ground that the wife had been forced to leave 
 her husband because of cruel treatment, had thereby been entitled 
 to obtain a domicile apart from him, and had not appeared or 
 been personally served with process. The- Supreme Court of the 
 United States, however, reversed this holding of the New York 
 court, saying that, inasmuch as the Kentucky court had jurisdic- 
 tion of the complainant, and constructive service had been had upon 
 the defendant, its decree had to be recognized as conclusively estab- 
 lishing not only the fact of the divorce, but that the wife had 
 abandoned her husband. The opinion declared : " We are of 
 opinion that the undisputed facts show that such efforts were 
 required by the statutes of Kentucky, and were actually made to 
 give the wife actual notice of the suit in Kentucky as to make the 
 decree of the court there, granting a divorce upon the grounds 
 that she had abandoned her husband, as binding on her as if she 
 had been served with notice in Kentucky, or had voluntarily ap- 
 peared in the suit. Binding her to the full extent, it established 
 beyond contradiction, that she had abandoned her husband, and 
 precludes her from asserting that she left him on account of his 
 cruel treatment. To hold otherwise would make it difficult, if 
 not impossible, for the husband to obtain a divorce for the cause 
 alleged, if it actually existed. The wife not being within the 
 
 2*201 U. S. 562; 26 Sup. Ct. Rep. 525; 50 L. ed. 867. 
 25181 U. S. 155; 21 Sup. Ct. Rep. 544; 45 L. ed. 794.
 
 208 UNITED STATES COXSTITUTIOXAL LAW. 
 
 State of Kentucky, if constructive notice, with all tlie precautions 
 prescribed by the statutes of that State, were iusuiik-ioiit to bind 
 her by a decree dissolving the bonds of matrimony, the husband 
 could only get a divorce by suing in the State in which she was 
 found; and by the very fact of suing her there, he would admit 
 that she had acquired a separate domicile ( which he denied ) , and 
 would disprove liis own ground of action, that she had abandoned 
 him in Kentucky." 
 
 Tlie court in its opinion was, however, careful to confine the 
 doctrine laid down to the particular ease before it. " This case/' 
 it declared, " does not involve the validity of a divorce granted 
 on constructive service, by the court of a State in which only one 
 of the parties ever had a domicile., nor the question to what extent 
 the good faith of the domicile may be afterward inquired into. 
 In this case, the divorce in Kentucky was by the court of the 
 State which had always been the undoubted domicile of the hus r 
 band, and which was the only matrimonial domicile of the hus- 
 band and wife. The single question to be decided is the validity 
 of that divorce, granted after such notice had been given as was 
 required by the statutes of Kentucky." The court did, however, 
 affirm the general doctrine that " the purpose and effect of a 
 decree of divorce from the bond of matrimony by a court of com- 
 petent jurisdiction are to change the existing status or domestic 
 relations of husband and wife, and to free them both from the 
 bond. The marriage tie, when thus severed as to one party, ceases 
 to bind the other, A husband without a wife, or a wife without 
 a husband, is unknown to the law." 
 
 The facts of the case of Haddock v. Haddock 26 very much 
 resembled those of Atherton v. Atherton. The only important dif- 
 ference, if indeed it was an important difference, was that here 
 the decree which was sought to be used as conclusive in another 
 State, had been granted the husband by the courts of a State which 
 was not the matrimonial domicile, but was the then domicile of 
 the husband. The wife, residing in the State of the original 
 matrimonial domicile, had received only constructive notice. The 
 
 26201 U. S. 562; 26 Sup. Ct. Rep. 525: 50 L. ed. 867,
 
 IXTEJISTATK DELATIONS: FULL FORCE AND CREDIT CLAUSE. 209 
 
 courts of the State of the wife's domicile refused to recognize the 
 validity of this decree, 011 the ground that the separation had 
 occurred through the fault of the husband, and their action was 
 upheld by the federal Supreme Court, that court thus, in effect, 
 deciding that the husband, though divorced in the State (Con- 
 necticut) where lie had obtained his decree, was not divorced in 
 another State (Xew York) where his wife or former wife 
 resided. In effect, then, limiting the case to the particular facts 
 involved, the doctrine was laid down that where the complainant 
 has abandoned the wife, and obtained a domicile in a State, other 
 than that of the original matrimonial domicile, and only con- 
 structive service has been had upon the defendant, no decree of 
 divorce can be granted to which full force and credit must be 
 given in the courts of other States. 
 
 In order to distinguish this case from previous adjudications, 
 and especially from that of Alherton v. Atherton, the court, in 
 its majority opinion, reviewed the whole subject and laid down 
 the following doctrines as having been definitely established: 
 " First The requirement of the Constitution is not that some, but 
 that full, faith and credit shall be given by States to the judicial 
 decrees of other States. That is to say. where a decree rendered 
 in one State is embraced by the full faith and credit clause, that 
 constitutional provision commands that the other States shall give 
 to the decree the force and effect to which it was entitled in the 
 State where rendered. (Harding v. Harding, 198 U. S. 317; 25 
 Sup. Ct. Rep. (179; 49 L. ed. 1000.) Second. Where a personal 
 judgment has been rendered in the courts of a State against a non- 
 resident merely upon constructive service, and, therefore, without 
 acquiring jurisdiction over the person of the defendant, such 
 judgment may not be enforced in another State in virtue of the 
 full faith and credit da use. Indeed, a personal judgment so 
 rendered is, by operation of the due process clause of the Four- 
 teenth Amendment, void as against the non-resident, even in the 
 State where rendered; and. therefore, such non-resident, in virtue 
 of rights granted by the Constitution of the ('nited States, may 
 resist, even in the State where rendered, the enforce- 
 14
 
 210 UNITED STATES CONSTITUTIONAL LAW. 
 
 ment of such a judgment. (Pennoyer v. j^eff, 95 U. S. 714; 24 
 L. ed. 565.)" 
 
 Applying these principles to the case at bar the court held, in 
 the first place, that a suit for divorce is essentially an action m 
 personam and not in rem; and, in the second place, that, by 
 wrongfully deserting his wife, the domicile of the wife, contrary 
 to the general rule, did not continue that of the husband when 
 he removed to Connecticut, but continued to be in Xew York, the 
 State of the original matrimonial domicile. Therefore, it was 
 held that the Connecticut courts, never having obtained personal 
 service upon the wife, and the action not being in rem, no decree 
 could be rendered against her that would affect her status any- 
 where except in the State where the judgment was rendered. In 
 effect, it was held that in order to render a decree of divorce 
 that would have to be recognized by the courts of other States, 
 a court must have jurisdiction of both of the parties, that is, of 
 the complainant by b-ona fide residence creating a domicile, and of 
 the defendant either by domicile in the State, by personal service, 
 or actual appearance, or by constructive service. But that this 
 constructive service cannot be relied upon in cases where the 
 defendant, having had good reason for separating from the com- 
 plainant, has obtained or retained a domicile in another State. 
 
 In the Atherton case, it was argued that the constructive ser- 
 vice upon the wife had been sufficient to give the court jurisdic- 
 tion because the wife had not been able to obtain a domicile apart 
 from her husband by wrongfully separating herself from her 
 husband. In the case at bar, however, the complainant had de- 
 serted the defendant and matrimonial domicile, and, therefore, 
 she had been entitled to retain her domicile in New York, after 
 the removal of her husband to Connecticut. 
 
 Four justices dissented. In the opinion concurred in by them 
 it was argued that the case was governed by the doctrines laid 
 down in Atherton v. Atherton. In that case it was held that juris- 
 diction over a domiciled complainant and constructive service over 
 the defendant were sufficient to support a decree which was en- 
 titled to full force and credit in other States. In the case at bar
 
 INTERSTATE RELATIONS: FULL FORCE AND CREDIT CLAUSE. 211 
 
 the domicile of the complainant was a bona fide one, and, it was 
 argued, the facts that it was or had been a matrimonial domicile 
 or that the complainant had wrongfully left his wife were irrele- 
 vant. The fact that the Connecticut court had granted the divorce 
 was, or should have been, it was argued, conclusive upon the Xew 
 York courts that the defendant had deserted the complainant and 
 not vice versa. It was denied that a proceeding for divorce is a 
 personal one (though a suit in personam is often incorporated 
 with it). In short, then, the bona fide domicile of the complain- 
 ant being granted, and constructive service such as the lex fori 
 demanded being had, and decree for divorce actually rendered, 
 the merits of the case, that is, as to which of the parties was re- 
 sponsible for the separation, the dissenting justices argued, were 
 no longer open for examination, and hence the question as to 
 where was or had been the matrimonial domicile became irrele- 
 vant. 
 
 The decision of the Supreme Court in Haddock v. Haddock 
 undoubtedly came as a great surprise to lawyers generally, and 
 its correctness has been questioned by many. 27 
 
 It is possible that the assertion made in the dissenting opinion 
 that the decision of the Connecticut court that the wife had de- 
 serted the husband, and not he her, should have been held con- 
 clusive of that fact in the Xew York courts, may be met by the 
 argument of Justice Peckham's dissenting opinion in Atherton 
 v. Atherton. This was that the court in which the full force and 
 credit of a decree of divorce of a court of another State is de- 
 manded, may exercise its own judgment as to the rightfulness or 
 wrongfulness of the separation of the defendant from the com- 
 plainant in order to determine whether or not such defendant had 
 been able to obtain a domicile apart from the complainant, and, 
 therefore, whether or not such defendant was properly beyond the 
 jurisdiction of the court rendering the decree; that, in other 
 words, the decree of such court is not conclusive upon this point 
 as it goes to a question of jurisdiction. 
 
 27 For aciite, and, to the author's mind, destructive criticisms of the position 
 assumed by the ma.j"rity of the court in Haddock v. Haddock, see articles by 
 J. H. Reale. Jr., in the Ilarrnrd Law Itcrinr, XIX, 586, and by H. A. Bigtlow 
 in The (Irrcnba.j. XVI IT, 348.
 
 212 UKTTED STATES CONSTITUTIONAL LAW. 
 
 But in other respects it does appear that the principles laid 
 down bj the majority of the court in the Haddock case are open 
 to objection. Especially open to objection are the following state- 
 ments: that a suit for divorce is to be treated as a proceeding in 
 personam ; that the fact that the domicile of the complainant was 
 not the original matrimonial domicile is important; and, finally. 
 that a decree of divorce which though not necessarily valid in 
 other jurisdictions is valid in the State where rendered, and that 
 thus, the husband, though legally divorced in one 'State, is still 
 married in another State. The author is, therefore, inclined to 
 believe that either these doctrines will ultimately be overruled, 
 or, if not, that they will be strictly limited in their application 
 to the precise facts of the Haddock case.
 
 CHAPTER XIII. 
 
 INTERSTATE RELATIONS: THE COMITY CLAUSE. 
 99. Privileges and Immunities. 
 
 Article IV, Section 2 of the Constitution declares that " the 
 citizens of each State shall be entitled to all privileges and im- 
 munities of citizens in the several States." This provision has 
 for its general aim the prevention of arbitrary and vexatious dis- 
 criminations by the several States in favor of their own citizens 
 and against the citizens of other States. " It was undoubtedly the 
 object of the clause in question/' say the Supreme Court in Paul 
 v. Virginia, 1 " to place the citizens of each State upon the same 
 footing with citizens of other States, so far as the advantages re- 
 sulting from citizenship in those States are concerned. It 
 relieves them from the disabilities of alienage in other States; 
 it inhibits discriminating legislation against them by other States; 
 it gives them the right of free ingress into other States, and egress 
 from them ; it insures to them in other States the same freedom 
 possessed by the citizens of those States in the acquisition and 
 enjoyment of property and in the pursuit of happiness; and it 
 secures to them in other States the equal protection of their laws. 
 It has been justly said that no provision in the Constitution has 
 tended so strongly to constitute the citizens of the United States 
 one people as this. 2 Indeed, without some provision of the kind, 
 removing from the citizens of each State the disabilities of alien- 
 age in the other, and giving them equality of privilege with citi- 
 zens of those States, the Republic would have constituted little 
 more than a league of States; it would not have constituted the 
 Union which now exists." 
 
 In tho early case in the federal Circuit Court of Corfield v. 
 Coryell, 3 as has been earlier noted, Justice Washington attempted 
 
 18 Wall. 1GS; 19 L. cd. 357. 
 
 zCitimr Loimnon v. The People of X. Y.. 20 X. Y. 607. 
 
 34 Wash. C. C. 371. 
 
 [213]
 
 214: UNITED STATES CONSTITUTIONAL LAW. 
 
 a still more particular, though not an exhaustive, enumeration of 
 the privileges and immunities that are protected from state dis- 
 crimination. 4 
 
 Much of Justice Washington's language was obiter, the deter- 
 mination of the enumerated privileges and immunities not being 
 necessarily involved in the case. Many of these rights have, how- 
 ever, in subsequent cases, been specifically passed upon and sus- 
 tained, 5 and it is believed that there is not one of them that would 
 not be declared by the Supreme Court, in a proper case, to be 
 beyond the discriminating power of the States. Thus in Ward 
 v. Maryland it was held that a State might not levy a license tax 
 upon temporary residents, as a condition precedent to allowing 
 them to sell certain goods. So also the granting of licenses to 
 trade cannot be limited to residents. 7 !Nor can a State, except by 
 proper quarantine and other police regulations, deny to citizens 
 of other States free ingress and egress, or the right to export or 
 import property. 8 
 
 In Ward v. Maryland the court say: "Attempt will not be 
 made to define the words ' privileges and immunities,' or to 
 specify the rights which they are intended to secure and protect, 
 beyond what may be necessary to the decision of the case before 
 the court. Beyond doubt, those words are words of very compre- 
 hensive meaning, but it will be sufficient to say that the clause 
 plainly and unmistakably secures and protects the right of a 
 citizen of one State to pass into any other State of the Union, for 
 the purpose of engaging in lawful commerce, trade, or business, 
 without molestation, to acquire personal property, to take and 
 hold real estate, to maintain actions in the courts of the States, 
 and to be exempt from any higher taxes or excises than are im- 
 
 * See ante, p. 179. 
 
 6 See especially two articles by W. S. Meyers in Michigan Laid Review, I, 
 pp. 286, 364, entitled " The Privileges and Immunities of Citizens in the 
 Several States." 
 
 6 12 Wall. 418; 20 L. ed. 449. 
 
 iln re Wilson, 15 Fed. 511. 
 
 8 This last is unconstitutional as well by the commerce clause of the Con- 
 stitution.
 
 INTERSTATE RELATIONS: THE COMITY CLAUSE. 215 
 
 posed by the State upon its own citizens. Comprehensive as the 
 power of the States is to lay and collect taxes and excises, it is 
 nevertheless clear, in the judgment of the court, that the power 
 cannot be exercised to any extent in a manner forbidden by the 
 Constitution; and, inasmuch as the Constitution provides that the 
 citizens of each State shall be entitled to all privileges and im- 
 munities of citizens in the several States, it follows that the de- 
 fendant might lawfully sell or offer or expose for sale within the 
 district prescribed in the indictment any goods which the perma- 
 nent residents of the State might sell or offer or expose for sale in 
 that district, without being subjected to any higher tax or excise 
 than that exacted by law of such permanent residents." 
 
 100. Political Privileges. 
 
 The interstate comity clause of the federal Constitution does 
 not compel the several States to grant to resident citizens of the 
 other States immediately upon their entrance into the State the 
 political privileges extended to their own citizens. This the Su- 
 preme Court has held from the very beginning and has recently 
 reaffirmed in the case of Blake v. McClung. 9 "A State/' says the 
 court in that case, " may by rule uniform in its operation as to 
 citizens of the several States, require residence within its limits 
 for a given time before a citizen of another State who becomes 
 a resident thereof shall exercise the right of suffrage or become 
 eligible to office. It has never been supposed that regulations of 
 that character materially interfered with the enjoyment by citi- 
 zens of each State of the privileges and immunities secured by 
 the Constitution to citizens of the several States. The Constitu- 
 tion forbids only such legislation affecting citizens of the respect- 
 ive States as will substantially or practically put a citizen of one 
 State in a condition of alienage when he is within or removes to 
 another State, or when asserting in another State the rights that 
 commonly appertain to those who are part of the political com- 
 munity known as the People of the United States, by and for 
 whom the Government of the Union was ordained and estab- 
 lished." 
 
 9 172 U. S. 239; 19 Sup. Ct. Rep. 165; 43 L. ed. 432.
 
 UNITED STATES CONSTITUTIONAL LA\V. 
 
 Finally, it is to be said, the several States may impose upon 
 non-residents suck special limitations and obligations as are, in 
 aim and effect, not discriminative but reasonably necessary for 
 the protection of their own citizens from fraud, disease, or injury 
 of any sort. Thus, as an example, though the citizens of other 
 States may not be forbidden to sue in the courts of the State, they 
 may be required to give bonds for cos-ts not exacted of residents. 1 " 
 
 In connection with this police power of the States a difficult 
 question is raised, as to the constitutionality of laws conditioning 
 the exercise of certain professions,, such as law, medicine, and 
 deatistry upon residence in the State for specified periods of 
 time. There is no question but that the State in the legitimate 
 exercise of its police power may require evidence of good char- 
 acter or sufficient technical attainments of all persons desiring to 
 practice these professions. A certain period of residence in the 
 State may, therefore, possibly be a proper requirement, in order 
 that the applicant's moral character and general attainments may 
 be learned, but it would seem that if this required period be made 
 unnecessarily long, it might be held that non-residents are unduly 
 discriminated against. We have, however, no cases in which this 
 position has been, taken. 
 
 101. State Proprietary Privileges. 
 
 In McCready v. Virginia 11 the important limitation of the 
 clause was established that a citizen, of one State is not, of con- 
 stitutional right, entitled to share upon equal terms with the citi- 
 
 10 in Chemung Canal Bank v. Lowery (93 U. S. 72; 2tf L. ed. 806) it was 
 held that a Wisconsin statute was not in violation of the equal privileges 
 clause because it provided that when a defendant to a suit was out of the 
 State, the statute of limitations should not run against a resident plaintiff, 
 but that it should if he were a non-resident. The court held that this was a 
 reasonable provision. " If," said the court, "the statute does not run as 
 1. ctween non-res-ident. creditors and their debtors, it might often happen that a 
 right of action would be extinguished, perhaps- for years, in the State where 
 the parties reside; and yet, if the defendant should be found in Wisconsin, it 
 may be only in a railroad train, a suit could be sprung- upon him after the 
 claim had been forgotten. The laws of Wisconsin would thus be used as a 
 trap to catch the unwary defendant after the laws which had always governed 
 the case had barred any recovery." This reasoning seenis hardly convincing. 
 
 ii94 U. S. 391; 24 L. ed. 2.48.
 
 INTERSTATE RELATIONS: THE COMITY CLAUSE. 217 
 
 zens of another State those proprietary interests which may be 
 said to belong generally to that State as such. This case involved 
 the right of cultivating oysters on beds of the tide waters of the 
 State. The court in its opinion say : *' We think we may safely 
 hold that the citizens of one State are not invested by this clause, 
 of the Constitution with any interest in the common property of 
 the citizens of another State." u . 
 
 1C2. Privileges of One State Not Carried into Other States. 
 
 The comity clause does not entitle a citizen within his own 
 State to privileges and immunities which may be granted by 
 other States to their citizens. In other words, it does not require 
 that when a right is granted by any one of the States of the Union 
 to its citizens, it thereby becomes a right which all the other 
 States must grant to their citizens. This claim, extreme as it 
 may appear, was raised in McKane v. Durston 13 but negatived 
 
 12 The opinion continues: ' If Virginia had by law provided for the sale of 
 its once vast public domain, and a division cf the proceeds among its own 
 people, no one, we venture to say, would contend that the citizens of other 
 States bad a constitutional right to the enjoyment of this privilege of Virginia 
 citizenship. Neither if, instead of selling, the State h:d appropriated the 
 same property to be used as a common by its people for the purposes of 
 agriculture, could the citizens of other States avail themselves of such a 
 privilege. And the reason is obvious: the right thus granted is not a privilege 
 or immunity of general but of special citizenship. It does not 'belong of right 
 to the citizens of all free government,' but only to the citizens of Virginia, on 
 account of the peculiar circumstances in which they are placed. They, and 
 they alone, owned the property to be sold or used, and they alone had the 
 power to dispose of it as they saw fit. They owned it not by virtue of citizen- 
 ship merely, hut of citizenship and domicile united; that is to say, by virtue 
 of a citizenship confined to that particular locality. The planting of oysters 
 in the soil covered by water owned in common by the People of the State is 
 not different in principle from that of planting corn upon dry land held in 
 the same way. Both are for the purpose of cultivation and profit: and if the 
 State, in the regulation of its public domain, can grant to its own citiaens 
 the exclusive ILSC of dry lands, we see no reason why it may not do the same 
 thing in respect to such as are covered by water. And as all concede that a 
 State may grant to one of it- citizens the exclusive use of part of the common 
 property. the conclusion would seem to follow, that it might by appropriate 
 legislation confine the use of the whole to its own people alone." 
 
 is 153 U. S. 684: 14 Sup. Ct. Rep. 913; 38 L. ed. 867.
 
 218 UNITED STATES CONSTITUTIONAL LAW. 
 
 by the court as scarcely worth an argument. " Whatever may 
 be the scope of Section 2 of Article IV," said the court, . . . 
 " the Constitution of the United States does not make the privi- 
 leges and immunities enjoyed by the citizens of one State under 
 the Constitution and laws of that State, the measure of the privi- 
 lege and immunities to be enjoyed, as of right, by the citizens of 
 another State under its Constitution and laws. ... A citation 
 of authorities upon the point is unnecessary." 
 
 It also scarcely needs argument that under this equal privileges 
 clause a citizen of one State residing, or having legal interests in 
 another State, may not lay claim to privileges and immunities 
 which his own State grants him, but which the other State does 
 not grant to its own citizens. 
 
 In Paul v. Virginia 14 the court say : " The privileges and im- 
 munities secured to citizens of each State in the several States, 
 by the provision in question, are those privileges and immuni- 
 ties which are common to the citizens in the latter States under 
 their Constitution and laws by virtue of their being citizens. 
 Special privileges enjoyed by citizens in their own States are 
 not secured in other States by this provision. It was not in- 
 tended by the provision to give to the laws of one State any opera- 
 tion in other States. They can have no such operation, except by 
 the permission, express or implied, of those States." 
 
 103. Corporations not Citizens within the Meaning of the 
 
 Comity Clause. 
 
 In Paul v. Virginia the doctrine, never since questioned, was 
 laid down that_a corporation is not a citizen within the meaning 
 of the term as used in the comity clause. Inasmuch as a corpora- 
 tion is the mere creation of local law, the court declare it can 
 have no legal existence, or right to do business, beyond the limits 
 of the sovereignty by which it is created. In other words, the 
 interstate comity clause of the federal Constitution does not neces- 
 sitate the recognition by the several States of corporations created 
 by any of the other States. " Having no absolute right of recog- 
 
 "8 Wall. 168; 19 L. ed. 357.
 
 INTERSTATE RELATIONS: THE COMITY CLAUSE. 219 
 
 nition in other States," the court say, " but depending for such 
 recognition and enforcement of its contracts upon their assent, it 
 follows, as a matter of course, that such assent may be granted 
 upon such terms and conditions as those States may think proper 
 to impose. They may exclude the foreign corporation entirely, 
 they may restrict its business to particular localities, or they may 
 exact such security for the performance of its contracts with their 
 citizens as in their judgment will best promote the public in- 
 terest. The whole matter rests in their discretion." 
 
 This principle of state omnipotence when dealing with the cor- 
 porations of other States is, however, limited in three very im- 
 portant respects. In so far as such corporations are engaged in 
 the conduct of interstate commerce they may not be controlled, 
 the regulation of this subject being exclusively a federal concern; 
 they may not be deprived of property without due process of law 
 or denied the equal protection of the laws ; and the obligation of 
 contracts entered into with them may not be impaired. 15 
 
 An instructive construction by the Supreme Court of the comity 
 clause in its application to corporations is to be found in the case 
 of Blake v. McClung, 16 decided in 1898. In that case was held 
 unconstitutional an act of the State of Tennessee which provided 
 that resident creditors of mining and manufacturing corporations 
 chartered in other States, and doing business in the State of 
 Tennessee should have " a priority in the distribution of assets, 
 or subjection to the same, or any part thereof, to the payment of 
 debts over all simple contract creditors, being residents of any 
 other country or countries." After calling attention to the fact 
 that the court had never attempted to give an exact or compre- 
 hensive definition of the clause " privileges and immunities " but 
 had deemed it " safe, and more in accordance with the duty of 
 a judicial tribunal, to leave its meaning to be determined in each 
 case, upon a view of the particular rights asserted and denied 
 therein," the court nevertheless goes on to quote with approval 
 
 is These limitations will be more fully treated in later chapters. 
 i 172 U. S. 239; 19 Sup. Ct. Rep. 165; 43 L. ed. 432.
 
 220 UNITED STATES CONSTITUTIONAL LAW. 
 
 the enumeration of Justice Washington in Corfield v. Coryell, 
 and that given in the opinion of the court in Paul v. Virginia and 
 Ward v. Maryland. The opinion then continues : " These prin- 
 ciples have not been modified by any subsequent decision of this 
 court. The foundation upon which the above cases rest cannot, 
 however, stand, if it be adjudged to be in the power of one State, 
 when establishing regulations for the conduct of private business 
 of a particular kind, to give its own citizens essential privileges 
 connected with that business which it denies to citizens of other 
 States. By the statute in question the British company was to be 
 deemed and taken to be a corporation of Tennessee, with authority 
 to carry on its business in that State. It was the right of citizens 
 of Tennessee to deal with it, as it was their right to deal with 
 corporations created by Tennessee. And it was equally the right 
 of citizens of other States to deal with that corporation. The 
 State did not assume to declare, even if it could legally have de- 
 clared, that that company, being admitted to do business in 
 Tennessee, should transact business only with citizens of Tennes- 
 see, or should not transact business with citizens of other States. 
 Xo one would question the right of the individual plaintiffs in 
 error, although not residents of Tennessee, to sell their goods to 
 that corporation upon such terms in respect of payment as might 
 be agreed upon, and to ship them to the corporation at its place of 
 business in that State. But the enjoyment of these rights is ma- 
 terially obstructed by the statute in question; for that statute, by 
 its necessary operation, excludes citizens of other States from 
 transacting business with that corporation upon terms of equality 
 with citizens of Tennessee. We hold such discrimination against 
 citizens of other "States to be repugnant to the second section of 
 the fourth article of the Constitution of the United States, al- 
 though generally speaking, the State has the power to prescribe 
 the conditions upon which foreign corporations may enter into 
 its territory for purposes of business. Such a power cannot be 
 exerted with the effect of defeating or impairing rights secured to 
 citizens of the several States by the supreme law of the land.
 
 INTERSTATE RELATIONS: THE COMITY CLAUSE. 221 
 
 Indeed, all the powers possessed by a State must be exercised con- 
 sistently with the privileges and immunities granted or protected 
 by the Constitution of the United States." n 
 
 17 Chief Justice Fuller and Justice "Brewer dissented. For later decisions 
 with reference to the conditions that the States may constitutionally impose 
 upon foreign corporations, see Blake v. McClung. 176 U. S. 64; 20 Sup. Ct. 
 Rep. 307; 44 L. ed. 371; Sully v. American National Bank, 178 U. S. 289; 
 20 Sup. Ct. Rep. 935; 44 L. ed. 1072; Waters-Pierce Oil Co. v. Texas. 177 
 I". S. 28; 20 Sup. Ct. Rep. 518; 44 L. ed. 657; Orient Insurance Co. v. Dagg 5? 
 172 T. S. 557; 19 Sup. Ct Rep. 281; 43 L. ed. 552; \Y. U. Tel. Co. v. Kansas, 
 2 Hi U. S. 1 : 30 Sup. Ct Rep. 190; Pullman Co. v. Kansas, 216 U. S. 50; 30 
 Sup. Ct. Rep. 232.
 
 CHAPTER XIV. 
 
 INTERSTATE RELATIONS : EXTRADITION. 
 
 104. Interstate Extradition. 
 
 The Constitution provides that " 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." * 
 
 In the case of Kentucky v. Dennison, 2 decided by the Supreme 
 Court in 1860, the respective powers and duties of the State and 
 Federal Governments in respect to the extradition of criminals, 
 came up for adjudication. Congress had passed a law declaring 
 that, upon request from the State from which the fugitive has 
 escaped, " it shall be the duty of the executive authority of the 
 State " to cause the fugitive to be seized and delivered to the agent 
 of the demanding State. Dennison, the governor of Ohio, refused 
 the request of the Commonwealth of Kentucky to surrender a 
 fugitive from her borders. Thereupon a mandamus was asked 
 from the federal court to compel him to do so. This writ the 
 Supreme Court in a unanimous opinion refused to issue, the argu- 
 ment of Taney, who prepared the opinion of the court, being as 
 follows : The duty of providing by law the regulations necessary 
 for carrying into effect this right to extradition manifestly be- 
 longs to Congress. " For," said Taney, " if it was left to the 
 States, each might require different proof to authenticate the 
 judicial proceedings upon which the demand was founded." 
 Furthermore, Taney declared, the duty that is laid upon the 
 governors of States by the Constitution and by the laws that Con- 
 gress had passed regulating the subject is a mere ministerial duty, 
 and, therefore, one the performance of which may ordinarily be 
 
 i Art. IV, Sec. 2, Cl. 2. 
 224 How. 66; 16 L. ed. 717. 
 
 [222]
 
 INTERSTATE RELATIONS I EXTRADITION. 223 
 
 compelled by the courts. Continuing he held that the clause in 
 question by the use of the words " treason, felony or other crime," 
 properly included every act forbidden and made punishable by a 
 State, and did not leave to the governor of a State to which a 
 fugitive from justice might flee, the right to refuse to surrender 
 him upon the ground that the act in question was not one made 
 punishable by the law of the State of which he was the chief 
 executive. " The argument on behalf of the governor of Ohio," 
 said Taney, ll which insists upon excluding from this clause new 
 offenses created by a statute of the State and growing out of its 
 local institutions, and which are not admitted to be offenses in 
 the State where the fugitive is found, nor so regarded by the gen- 
 eral usage of civilized nations, would render the clause useless 
 for any practical purpose. For where can the line of division 
 be drawn with anything like certainty ? Who is to mark it ? The 
 governor of the demanding State would probably draw one line, 
 and the governor of the other State another. And if they dif- 
 fered, who is to decide between them ? Under such a vague and 
 indefinite construction, the article would not be a bond of peace 
 and union, but a constant source of controversy and irritating 
 discussion. It would have been far better to omit it altogether, 
 and to have left it to the comity of the States, and their own 
 sense of their respective interests, than to have inserted it as con- 
 ferring a right and yet defining that right so loosely as to make 
 it a never failing subject of dispute and ill will." Also, he de- 
 clared, it is- certain that the words " it shall be the duty " when 
 employed in the ordinary acts of legislation, imply an assertion 
 of the right to command and coerce obedience. " But," said 
 Taney, " looking to the subject-matter of this law, and the rela- 
 tions which the United Siates and the several States bear to each 
 other, the court is of opinion the words * it shall be the duty ' 
 wore not used as mandatory and compulsory, but as declaratory 
 of the moral duty which this command created, when Congress 
 had provided the mode of carrying it into execution. The act 
 does not provide any means to compel the execution of this duty, 
 nor inflict any punishment for neglect ov refusal on the part of
 
 224- UNITED STATES CONSTITUTIONAL LAW. 
 
 the executive of the State; nor is there any clause or provision in 
 the Constitution which arms the government of the United States 
 with this power. Indeed, such a power would place every State 
 under the control and dominion of the General Government, even 
 in the administration of its internal concerns and reserved rights. 
 And we think it clear that the Federal Government, under the 
 Constitution, has no power to impose on a state officer, as such, 
 any duty whatever, and compel him to perform it. ... It is 
 true that Congress may authorize a particular state officer to per- 
 form a particular duty; but if lie declines to do so, it does not 
 follow that he may be coerced or punished for his refusal/' 
 
 There have since been a number of . occasions in which a gov- 
 ernor of one State has refused the extradition of a person found 
 within its borders and who had admittedly come from the State 
 which asked for his return. A notable instance was the refusal 
 of the governor of Indiana to permit the extradition of ex- 
 Governor Taylor of Kentucky who was indicted in the latter State 
 as having been a party to the murder of Governor Goebel. 
 
 105. Extradition by the States of the Union to Foreign States. 
 
 In 1810 the Supreme Court was called upon to pass upon the 
 question whether it lies within the constitutional power of the 
 individual States of the Union to surrender fugitives from justice 
 to a foreign government. 3 This point the court found it so diffi- 
 cult to decide that, after holding it under advisement for a long 
 time, it divided equally and was, therefore, unable to render an 
 opinion as the opinion of the court, though, according to its prac- 
 tice in such cases, it affirmed the decision of the court below. 
 Taney in his individual opinion took the ground that the surren- 
 der of fugitives from justice is a matter that properly falls within 
 the general field of international relations, and that the control 
 of this field being exclusively vested in the Federal Government, 
 the States are absolutely excluded therefrom, and, therefore, can- 
 not, constitutionally, exercise the right of extraditing to foreign 
 countries fugitives from them to their own territories. " The 
 
 s Holmes v. Jeimison, 14 Pet. 540; 10 L. eel. 579.
 
 IXTEKSTATE RELATIONS: ExTKADITIOX. 225 
 
 };u\ver in question," he declared, ;> from its nature, cannot be a 
 t oncurrent one, to be exercised both by the States and the General 
 Government. It must belong, exclusively, to the one or the 
 other." With Taney agreed Story, McLean, and Wayne. Thomp- 
 son, Barber and Catron, however, in their opinions, took the view, 
 that the action of the governor of Vermont was not subject to 
 examination upon the part of the federal court, because there then 
 existed no treaty between the United States and the country to 
 which the prisoner was to be extradited, which the governor's 
 action could be said to violate. Baldwin in a separate opinion 
 sustained the power of the State upon the ground that it was a 
 legitimate exercise of its police power to obtain riddance of an 
 undesirable inhabitant. 
 
 It would seem that the law upon this point remained in this 
 unsettled state until 1886 when, in the case of United States v. 
 Rauscher 4 the Supreme Court declared, without dissent, that 
 " there can be little doubt of the soundness of the opinion of Chief 
 ice Taney, that the power exercised by the governor of Ver- 
 mont is a part of the foreign intercourse of this country which 
 has undoubtedly been conferred upon the Federal Government; 
 and that it is clearly included in the treaty-making power and the 
 corresponding power of appointing and receiving ambassadors and 
 other public ministers. There is no necessity for the States to 
 enter upon the relations with foreign nations which are neces- 
 sarily implied in the extradition of fugitives from justice found 
 within the limits of the State, as there is none why they should 
 in their own name make demand upon foreign nations for the 
 surrender of such fugitives. At this time of day, and after the 
 repeated examinations which have been made by this court into 
 the powers of the Federal Government to deal with all such inter- 
 national questions exclusively, it can hardly be admitted that, even 
 in the absence of treaties or acts of Congress on the subject, the 
 extradition of a fugitive from justice can become the subject of 
 negotiations between a State of this Union and a foreign 
 government.'' 
 
 < 119 U. S. 407; 7 Sup. C't. Rep. 234; 30 L. ed. 425. 
 15
 
 226 UNITED STATES CONSTITUTIONAL LAW. 
 
 This question may probably be now considered definitely 
 settled, but it is interesting to observe that the declaration set- 
 tling it was, after all, a pure dictum, the point not being involved 
 in the case in which it was made. 
 
 A number of decisions have held that the asylum State may 
 satisfy the demands of its own laws before surrendering a fugi- 
 tive to the State from which he has fled. u When a demand is 
 properly made by the governor of one State upon the governor of 
 another, the duty to surrender is not absolute and unqualified. 
 It depends upon the circumstances of the case. If the laws of 
 the latter case have been put in force against the fugitive, and 
 he is imprisoned there, the demands of those laws may first be 
 satisfied." 5 
 
 106. Auxiliary Legislation by the States. 
 
 The power of Congress by legislation to render effective the 
 extradition clause is not exclusive, and does not, therefore, exclude 
 the power of the State to enact measures auxiliary thereto. In- 
 deed, such additional legislation is, in general, necessary, as, for 
 example, laws for inquiry into the fact whether the person 
 demanded was actually, and not constructively, within the State 
 claiming him. when the offense charged was committed. 6 
 
 107. Judicial Examination of Extradition Proceedings. 
 
 " Upon the executive of the State rests the responsibility of 
 determining, in some legal mode, whether [the one claimed] is 
 a fugitive of the demanding State. He does not fail in duty if 
 he makes it a condition precedent to the surrender of the accused 
 that it be shown to him, by competent proof, that the accused is, 
 in fact, a fugitive from the justice of the demanding State." 7 
 
 6 Taylor v. Taintor, 16 Wall. 366; 21 L. ed. 287. 
 
 6 Ex parte McKean, 3 Hughes (U. S.), 23; Ex parte Ammons, 34 Ohio 
 St. 518. See 3 Fed Statutes Annotated, 79, note. 
 
 TEx parte Reggel, 114 U. S. 642; 5 Sup. Ct. Rep. 1148; 29 L. ed. 250. In- 
 dependent proof apart from its requisition papers that the accused is a fugitive 
 from justice need not, however, be demanded by the governor of the surrender- 
 ing State. Pettibone v. Nichols, 203 U. S. 192.
 
 INTERSTATE RELATIONS: EXTEADITION. 227 
 
 The governor cannot be compelled by judicial process, state or 
 federal, to take action, but where he has acted, his action may be 
 inquired into by the courts. Thus in Roberts v. Reilly 8 the court 
 say: " The Act of Congress ( 5278, R. S.) makes it the duty 
 of the executive authority of the State to which such person has 
 fled, to cause the arrest of the alleged fugitive from justice, 
 whenever the executive authority of any State demands such 
 person as a fugitive from justice, and produces a copy of an 
 indictment found or affidavit made before a magistrate of any 
 State, charging the person demanded with having committed the 
 crime therein, certified as authentic by the governor or chief 
 Magistrate of the State from whence the person so charged has 
 fled. It must appear, therefore, to the governor of the State 
 to whom such a demand is presented, before he can lawfully com- 
 ply with it; first, that the person demanded is substantially 
 charged with a crime against the laws of a State from whose 
 justice he is alleged to have fled, by an indictment or an affidavit, 
 certified as authentic by the governor of the State making the 
 demand ; and second, that the person demanded is a fugitive from, 
 the justice of the State the executive authority of which makes 
 the demand. The first of these prerequisites is a question of law 
 and is always open upon the face of the papers to judicial inquiry, 
 on an application for a discharge under a writ of habeas corpus. 
 The second is a question of fact, which the governor of the State 
 upon whom the demand is made must decide, upon such evidence 
 as he may deem satisfactory. How far his decision may be 
 viewed judicially in proceedings in habeas corpus, or whether it 
 is not conclusive, are questions not settled by harmonious judi- 
 cial decisions, nor by any authoritative judgment of this court. 
 It is conceded that the determination of the fact by the executive 
 of the State in issuing his warrant of arrest, upon a demand made 
 on that ground, whether the writ contains a recital of an express 
 finding to that effect or not, must be regarded as sufficient to 
 justify the removal until the presumption in its favor is over- 
 thrown by contrary proof." 9 
 
 8116 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544. 
 
 See also Hyatt v. New York, 188 U. S. 691; 23 Sup. Ct. Rep 456; 47 
 L. ed. 657.
 
 228 UNITED STATES CONSTITUTIONAL LAW. 
 
 108. Abduction and Forcible Return of Fugitives from Justice. 
 It has been decided 10 that where a fugitive has been forcibly 
 abducted, without being extradited, from a State to which he had 
 fled to the State from which he had fled, neither the Federal 
 Government, nor the State whose peace has thus been violated, nor 
 the abducted one, has legal redress, unless, indeed, the governor 
 of the State to which he 'has been taken is willing to return him, 
 and to extradite the persons participating in the abduction. The 
 case of Hahon grew out of the following facts. Mahon, charged 
 with murder in the State of Kentucky, fled to West Virginia. 
 During a correspondence between the governors of the two States 
 regarding extradition, he was forcibly abducted from the latter 
 State and taken to the former State, and there confined in jail 
 pending his trial for murder. Thereupon the governor of West 
 Virginia, on behalf of that State, presented in a District Court 
 of the United States a petition stating these facts, and adding 
 that he had made a requisition upon the governor of Kentucky 
 that Mahon be released and returned to West Virginia, but that 
 such requisition had been refused. Therefore, a writ of "habeas 
 corpus was prayed directed to the keeper of the jail where Mahon 
 was confined. A similar petition was filed by Mahon himself. 
 Upon return of the writ the motion for discharge was denied by 
 the court; appeal was taken to the Circuit Court, where the or-lcr 
 of the lower court was affirmed; and from this order an appeal 
 was taken to the Supreme Court. In its opinion, affirming the 
 action of the lower tribunals, the Supreme Court say : " If the 
 States of the Union were possessed of an absolute sovereignty, 
 instead of a limited one, they could demand of each other repara- 
 tion for an unlawful invasion of their territory and the surrender 
 of parties abducted, and of parties committing the offense, and in 
 case of refusal to comply with the demand, could resort to 
 reprisals, or take any other measures that they might deem neces- 
 sary as redress for the past and security for the future. But the 
 States of the Union are not absolutely sovereign. Their sover- 
 eignty is qualified and limited by the conditions of the federal 
 
 10 Mahon v. Justice, 127 U. S. 700; 8 Sup. Ct. Rep. 1204; 32 L. ed. 283.
 
 INTERSTATE RELATIONS: EXTEADITIOX. 229 
 
 Constitution. They cannot declare war or authorize reprisals on 
 other States. Their ability to prevent the forcible abduction of 
 persons from their territory consists solely in their power to pun- 
 ish all violations of their criminal laws committed within it, 
 whether by their own citizens or by the citizens of other States. 
 
 If such violators have escaped from the jurisdiction of the 
 State invaded, their surrender can be secured upon proper demand 
 on the executive of the State to which they have fled. The sur- 
 render of the fugitives in such cases, to the State whose laws 
 have been violated, is the only aid provided by the laws of the 
 United States for the punishment of depredations and violence 
 committed in one State by intruders and lawless bands from 
 another State. The offenses committed by such parties are against 
 the State; and the laws of the United States merely provide the 
 means by which their presence can be secured in case they have 
 fled from its justice. Xo mode is provided by which a person 
 unlawfully abducted from one State to another can be restored 
 to the State from which he was taken, if held upon any process 
 of law for offenses against the .State to which he has been carried. 
 If not thus held he can, like any other person deprived of his 
 liberty, obtain his release on habeas corpus. Whether Congress 
 might not provide for the compulsory restoration to the State of 
 parties wrongfully abducted from its territory upon application 
 of the parties, or of the State, and whether such provision would 
 not greatly tend to the public peace along the borders of the several 
 States, are not matters for present consideration. It is sufficient 
 now that no means for such redress through the courts of the 
 United States have as yet been provided." u 
 
 11 Justice Bradley was not convinced by this argument. He said: "I dis- 
 sent from the judgment of the court in this case. In my opinion, the writ of 
 habeas corpus was properly issued, and the prisoner. Malion, should have been 
 discharged and permitted to return to West Virginia. He was kidnapped and 
 carried into Kentucky in plain violation of the Constitution of the United 
 State", and is detained there in continued violation thereof. It is true, he is 
 charged with having committed a crime in Kentucky. But the Constitution 
 provides a peaceable remedy for procuring the surrender of persons charged 
 with crime and fleeing into another State. This provision of the C'onstitution 
 has two objects ; the procuring possession of the offender, and the prevention
 
 230 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Pettibone v. Xichols 12 the court held that because the sur- 
 rendered one had been given no opportunity at the time of his 
 arrest to test in the courts of the surrendering State the legality 
 of the extradition, no federal right had been violated. " That 
 he had no reasonable opportunity to present these facts before 
 being taken from Colorado," said the court, " constitutes no legal 
 reason why he should be discharged from the custody of the 
 Idaho authorities. ^To obligation was imposed by the Constitu- 
 tion or laws of the United States upon the agent of Idaho to so 
 
 of irritation between the States, which might arise from giving asylum to 
 each other's criminals, and from violently invading each other's territory to 
 capture them. It clearly implies that there shall be no resort to force for this 
 purpose. The Constitution has abrogated, and the States have surrendered, all 
 right to obtain redress from each other by force. The Constitution was made 
 to 'establish justice' and 'insure domestic tranquillity;' and to attain this 
 end as- between the States themselves, the judicial power was extended ' to 
 controversies between two or more States,' and they were enjoined to deliver 
 up to each other fugitives from justice when demanded, and even fugitives 
 from service. This manifest care to provide peaceable means of redress between 
 them is utterly irreconcilable with any right to redress themselves by force 
 and violence; and, of course, what is unconstitutional for the States is uncon- 
 stitutional for their citizens. ... A requisition would not apply. That is 
 provided for by the extradition of fugitives from justice. It would apply for 
 the delivery up of the kidnappers, but not for the restoration of their victim. 
 It is a special constitutional remedy, addressed by the executive of one State to 
 the executive of another, imposing a constitutional duty of extradition when 
 properly made in a proper case. But the present case is a different one. It 
 is not the surrender of a fugitive from justice which is sought, but the sur- 
 render of a citizen unconstitutionally abducted and held in custody. There 
 must be some remedy for such a wrong. It cannot be that the States, in 
 surrendering their right of obtaining redress by military force and reprisals, 
 have no remedy whatever. It was suggested by the counsel that the State of 
 West Virginia might sue the State of Kentucky for damages. This suggestion 
 could not have been seriously made. No; the remedy adopted was the proper 
 one. Habeas corpus is not only the proper legal remedy, but a most salutary 
 one. It is calculated to allay strife and irritation between the States by 
 securing a judicial and peaceful decision of the controversy." 
 
 In Ker v. Illinois (119 U. S. 436; 7 Sup. Ct. Rep. 225; 30 L. ed. 421) the 
 plaintiff urged that in violation of law he had been seized in a foreign country 
 and forcibly brought against his will into the United States, in violation of a 
 treaty between the United States and the foreign country, and in violation of 
 the Fourteenth Amendment. The court held, in a unanimous opinion, that 
 notwithstanding the illegal methods pursued in bringing the accused within 
 the State, there had been no violation of a federal right. 
 
 12203 U. S. 192; 27 Sup. Ct. Rep. Ill; 51 L. ed. 148.
 
 INTERSTATE RELATIONS : ExTEADITIOX. 231 
 
 time the arrest of the petitioner, and so conduct his deportation 
 from Colorado as to afford him a convenient opportunity before 
 some judicial tribunal sitting in Colorado, to test the question 
 whether he was a fugitive from justice, and, as such, liable, under 
 the act of Congress, to be conveyed to Idaho for trial there.*' 
 
 In this case it was decided also that the fact that the illegal 
 abduction from the State was by persons acting under the author- 
 ity of that State did not take the case out of the operation of the 
 doctrine laid down in the Mahon case. 13 
 
 109. Trial for Offenses Other than Those for which Extradited. 
 
 In United States v. Rauscher 14 was considered the question 
 whether a fugitive extradited from a foreign country in pursuance 
 of a treaty between that country and the United States covering 
 the crime charged, could, after coming into the custody of the 
 United States, be tried upon another minor offense not covered by 
 the treaty. The court held that he could not be. 15 
 
 In Lascelles v. Georgia, 16 however, it was held that, as to 
 fugitives from one State of the Union to another, this may be 
 done. " The fallacy of the argument [that this may not be 
 done]," said the court, "lies in the assumption that the States 
 of the Union occupy toward each other, in respect to fugitives 
 from justice, the relation of foreign nations, in the same sense 
 in which the General Government stands toward independent 
 sovereignties on that subject ; and in the further assumption that 
 a fugitive from justice acquires in the State to which he may 
 flee some state or personal right to protection, improperly called 
 a right of asylum, which secures to him exemption from trial 
 and punishment for a crime committed in another State, unless 
 such crime is made the special object or ground of his rendition. 
 . . . The sole object of the provision of the Constitution and 
 act of Congress to carry it into effect is to secure the surrender 
 of persons accused of crime who have fled from the justice of a 
 
 "Justice McKenna dissented as to this. 
 i< 119 U. S. 407; 7 Sup. Ct. Rep. 234; 30 L. ed. 425. 
 
 is Chief Justice Waite dissented. SOP also Cosgrove v. Winney, 174 U. S. 
 64; 19 Sup. Ct. Rep. 598; 43 L. ed. 897. 
 
 16 148 U. S. 537; 13 Sup. Ct. Rep. 687; 37 L. ed. 549.
 
 232 UNITED STATES CONSTITUTIONAL LAW. 
 
 State, whose laws they are charged with violating. Xeither the 
 Constitution, nor the act of Congress providing for the rendition 
 of fugitives upon proper requisition being made, confers, either 
 expressly or by implication, any right or privilege upon such 
 fugitives under and by virtue of which they can assert, in the 
 State to which they are returned, exemption from trial for any 
 criminal act done therein." n 
 
 110. Who is a " Fugitive." 
 
 " To be a fugitive from justice . . . it is not necessary that 
 the party charged should have left the State in which the crime 
 is alleged to have been committed, after an indictment found, or 
 for the purpose of avoiding a prosecution anticipated or begun, 
 but simply that, having within a State committed that which by 
 its laws constitutes a crime, when he sought to be subjected to 
 
 17 The opinion continues: The case of United States v. Kauscher has no 
 application to the question under consideration, because it proceeded upon th 
 ground of a right given impliedly by the terms of a treaty between the 
 'United States and Great Britain, as well as expressly by the acts of Congress 
 in the case of a fugitive surrendered to the United States by a foreign nation. 
 That treaty which specified the offenses that were extraditable, and the statutes 
 of the United States passed to carry it and other like treaties into effect, con- 
 stituted the supreme law of the land, and were construed to exempt the 
 extradited fugitive from trial for any other offense than that mentioned in 
 the demand for surrender. There is nothing in the Constitution or statutes 
 of the United States in reference to interstate rendition of fugitives from 
 justice which can be regarded as establishing any compact between the States 
 of the Union, such as the Ashburton treaty contains, limiting their operation 
 to particular or designated offenses. On the contrary, the provisions of the 
 organic and statutory law embrace crimes and offenses of every character and 
 description punishable by the laws of the State where the forbidden acts are 
 committed. It is questionable whether the States could constitutionally enter 
 into any agreement or stipulation with each other for the purpose of defining 
 or limiting the offenses for whicii fugitives would or should be surrendered. 
 But it is settled by the decision of this court that, except in the case of a 
 fugitive surrendered by a foreign government, there is nothing in the Con- 
 stitution, treaties, or laws of the United States which exempts an offender, 
 bi ought before the courts of a State for an offense against its laws, from trial 
 and punishment, even though brought from another State by unlawful violence 
 or by abuse of legal process." Citing Kcr. v. Illinois, 11 9 U. S. 436; 7 Sup. 
 Ct. Rep. 225; 30 L. ed. 421; Mahon v. Justice, 127 U. S. 700; 8 Sup. Ct. 
 Rep. 1204; 32 L. ed. 283; Cook v. Hart, 146 U. S. 133; 13 Sup. Ct. Eep. 40; 
 46 L. ed. 934.
 
 INTERSTATE RELATIONS: EXTRADITION. 233 
 
 its criminal process to answer for his offense, he has left its juris- 
 diction and is found within the territory of another.'' ls 
 
 In Appleyard v. Massachusetts 19 it was held that the belief of 
 the accused, when leaving the demanding State, that he had not 
 committed a crime against the State, did not prevent his being 
 a fugitive from justice within the meaning of the Constitution 
 and the acts of Congress relating to extradition. To be a fugitive 
 from justice, it was declared, it is only necessary that the accused 
 should have been within the demanding State at the time the 
 crime was committed, and that thereafter he be found within the 
 borders of another State. A fugitive from justice when appre- 
 hended in the State to which he has fled, and held for extradition, 
 though restrained of his liberty, under color of authority derived 
 from the Constitution and laws of the United States, is not in 
 the custody of the United States, but of the States. When so 
 apprehended, however, the fugitive has the right to test the law- 
 fulness of his arrest by writ of habeas corpus issued either by a 
 state or federal court. 20 
 
 in Hyatt v. Xew York 21 it was definitely held, without qualifica- 
 tion, that in order to be a " fugitive from justice " within the 
 meaning of the constitutional clause, and of the statutes relating 
 thereto, the person sought to be extradited must have been actually, 
 and not merely constructively, within the demanding State at the 
 time the crime charged was committed. Furthermore, in this 
 case it was held that one who came into the State on business 
 for a single day eight days after the alleged commission of the 
 crime, and months before indictment found, was not, by his 
 departure therefrom, thereby brought within the terms of the 
 statute providing for rendition. 22 
 
 is Roberts v. Reilly, 116 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544. 
 'J' 1 :: 0. S. i'72. 
 
 20 Roberts v. Reilly, 110 U. S. 80; 6 Sup. Ct. Rep. 291; 29 L. ed. 544. 
 
 21 1SS U. S. 601; 23 Sup. Ct. Rep. 456; 47 L. ed. 657. 
 
 22" It is sufficient for the party charged to show that he was not in the 
 State at tlio times namosl in the indictments; and when these facts are proved 
 so that there is no dispute in regard to them, and th-r? is no claim of any 
 error in the dates named in the indictments, the facts so proved are sufficient 
 to slio\v that the person was not in the State when the crimes were, if ever, 
 committed."
 
 234 UNITED STATES CONSTITUTIONAL LAW. 
 
 111. Fugitive Slaves. 
 
 The same section of Article IV which provides for the extradi- 
 tion of fugitives from justice, provides that " no person held to 
 service or labor in one State, under the laws thereof, escaping 
 into another, shall, in consequence of any law or regulation 
 therein, be discharged from such service or labor, but shall be 
 delivered up on claim of the party to whom such service or labor 
 may be due." This clause is practically obsolete. 23 An elaborate 
 examination of the obligations imposed upon the States, and of the 
 extent of concurrent legislative power in the premises is found in 
 Prigg v. Pennsylvania. 24 
 
 23 The question has been raised whether, since the adoption, of. the Thirteenth 
 Amendment, the fugitive slave clause of the Constitution has become 
 completely obsolete. It is generally so held, but possibly not correctly so. 
 The clause in question, it will be observed, does not employ the word slaves. 
 Its words are sufficiently broad to make the clause cover not only slaves but 
 minor apprentices and possibly others owing services under contract. Indeed, 
 Charles Sumner in a debate in the United States Senate in 1864 maintained 
 that, properly interpreted, it applied only to such and not to slaves at all. 
 (Congressional Globe, 1st Seas., 38th Cong., Pt. II, pp. 1711, 1750). The 
 Thirteenth Amendment abolishes not only slavery but all " involuntary servi- 
 tude," and it has been held that this renders illegal an attempt to compel, 
 upon the part of adults, the performance' of any personal services, whether 
 provided for by contract and already compensated for, or not. Of course, 
 however, damages for breach of contract to render personal services, may be 
 awarded. But this does not render illegal state Isfws compelling the per- 
 formance of personal services on the part of minor apprentices, and if this be 
 so, it would seem that a minor apprentice escaping from a State where his 
 services may be compelled, into another State, under a proper law for the 
 purpose, be claimed and removed to the State from which he fled. The sub- 
 ject of peonage will be considered in a later chapter. 
 
 z* 16 Pet. 539 ; 10 L. ed. 1060.
 
 CHAPTER XV. 
 
 INTERSTATE RELATIONS: COMPACTS BETWEEN THE STATES, AND 
 BETWEEN THE UNITED STATES AND THE STATES. 
 
 112. Compacts between the States. 
 
 The control of international relations being exclusively vested 
 in the Federal Government, it necessarily follows that the several 
 States have no authority to enter into any diplomatic or .political 
 relations with foreign powers. 1 Nevertheless, from an excess 
 of caution, the federal Constitution declares that, " No State shall 
 enter into any treaty, alliance or confederation," and that, " Xo 
 State shall, without the consent of Congress, . . . enter into 
 any agreement or compact with another State, or with a foreign 
 power." 
 
 It will be noticed that in the latter of these two constitutional 
 clauses, the qualification " without the consent of Congress " is 
 introduced. There has, therefore, never been any doub^but that, 
 when this congressional consent is given, the several States of 
 the American Union may enter into agreements and compacts 
 with one another, so long as their effect is not to create what in 
 political language is termed an " alliance " or " Confederation." 2 
 Not only this ; it has been held that there are a variety of subjects 
 concerning which the several .States may enter into agreements 
 with one another without the necessity of obtaining the consent 
 of Congress. Upon this point, in Virginia v. Tennessee, 3 the 
 Supreme Court say: " There are many matters upon which dif- 
 ferent States may agree that can in no respect concern the United 
 States. If, for instance, Virginia should come into possession 
 and ownership of a small parcel of land in Xew York which the 
 latter State might desire to acquire as a site for a public building, 
 
 1 See chapter XXXII. 
 
 2 Green v. Biddle, 8 Wh. 1; 5 L. ed. 547; Poole v. Fleeger, 11 Pet. 185; 
 fl L, ed. 680. 
 
 s 148 U. S. 503; 13 Sup. Ct. Rep. 728; 37 L. ed. 537. 
 
 [235]
 
 236 UNITED STATES CONSTITUTIONAL LAW. 
 
 it would hardly be deemed essential for the latter State to obtain 
 the consent of Congress before it could make a valid agreement 
 with Virginia for the purchase of the land. If Massachusetts, in 
 forwarding its exhibits to the World's Fair at Chicago, should 
 desire to transport them a part of the distance over the Erie Canal, 
 it would hardly be deemed essential for that .State to obtain the 
 consent of Congress before it could contract with I^ew York for 
 the transportation of the exhibits through the State in that way. 
 If the bordering line of the two States should cross some malarious 
 and disease-producing district, there could be no possible reason, 
 on any conceivable public grounds, to obtain the consent of Con- 
 gress for the bordering States to agree to unite in removing the 
 cause of the disease. So, in the case of threatened invasion of 
 cholera, plague, or other causes of sickness and death, it would 
 be the height of absurdity to hold that the threatened States 
 could not unite in providing means to prevent and repel the 
 invasion of the pestilence without obtaining the consent of Con- 
 gress, which might not be at the time in session." 
 
 u If, then," the court asks, " the terms ' compact ' or ' agree- 
 ment ' in the Constitution do not apply to every possible compact 
 or agreement between one State and another, for the validity of 
 which the consent of Congress must be obtained, to what com- 
 pacts or agreements does the Constitution apply ? " " Looking 
 at the clause in which the terms ' compact ' or ' agreement ' 
 appear," answers the court, " it is evident that the prohibition 
 is directed to the formation of any combination tending to the 
 increase of political power in the States, which may encroach 
 upon or interfere with the just supremacy of the United States." 4 
 
 The court continue : " Compacts or agreements and we do 
 not perceive any difference in the meaning, except that the word 
 ' compact ' is generally used with reference to more formal and 
 serious engagements than is usually implied in the term l agree- 
 ment ' cover all stipulations affecting the conduct or claims of 
 the parties. The mere selection of parties to run and designate 
 
 *'ihe court go on to quote with approval from Story's Commentaries upon 
 the Constitution, Sec. 1403.
 
 INTERSTATE RELATIONS: < " IMPACTS BETWEEN STATES. 
 
 the boundary line between two States, or to designate what line 
 should be rim, of itself imports no agreement to accept the line 
 run by them, and such action of itself does -not come within the 
 prohibition. Xor does legislative declaration, following such line, 
 that it is correct, and shall thereafter be deemed the true and 
 established line, import by itself a contract or agreement with 
 the adjoining State. It is a legislative declaration which the 
 State and individuals affected by the recognized boundary line 
 may invoke against the State as an admission, but not as a com- 
 pact or agreement. The legislative declaration will take the 
 form of an agreement or compact when it recites some considera- 
 tion for it from the other party affected by it, for example, as 
 made upon a similar declaration of the border or contracting 
 State. The mutual agreements may then be reasonably treated 
 as made upon mutual considerations. The compact or agree- 
 ment will then be within the prohibition of the Constitution or 
 without it, according as the establishment of the boundary line 
 may lead or not to the increase of the political power or influence 
 of the States affected, and thus encroach or not upon the full 
 and free exercise of federal authority. If the boundary estab- 
 lished is so run as to cut off an important and valuable portion 
 of a State, the political power of the State enlarged would be 
 affected by the settlement of the boundary ; and to an agreement 
 for the running of such a boundary or rather for its adoption 
 afterward, the consent of Congress may well be required. But 
 the running of a boundary may have no effect upon the political 
 influence of either State, it may simply serve to mark and define 
 that which actually existed before, but was undefined and 
 unmarked. In that case the agreement for the running of the 
 line, or its actual survey, would in no respect displace the rela- 
 tion of either of the States to the General Government. There 
 was, therefore, no compact or agreement between the States in 
 this case which required, for its validity, the consent of Congress, 
 within the meaning of the Constitution, until they had pn- 
 upon the report of the commissioners, ratified their action, and 
 mutual Iv declared the boundarv established bv them to be the
 
 238 UNITED STATES CONSTITUTIONAL LAW. 
 
 true and real boundary between the States. Such ratification 
 was mutually made by each State in consideration of the ratifica- 
 tion of the other." 5 
 
 113. Compact Between the States and the United States. 
 
 Closely connected with the question of compacts of the States,. 
 inter se, is that of compacts between the individual States and 
 the United States. 
 
 Of compacts of this character which have been entered into^ 
 the greater number have been made at the time the States in 
 question have been admitted as States into the Union, and have 
 attempted to place such States under restrictions not directly de- 
 ducible from the federal Constitution, and are, therefore, restric- 
 tions not resting upon the other States. To this extent they have 
 been in violation of the general principle of the equality of the 
 States. This principle, it may be said, is not expressly stated in 
 the federal Constitution, but would seem to be implied in the 
 general nature of that instrument, 6 
 
 The Constitution, without distinguishing between the original 
 and new States, defines the political privileges which the States 
 
 5 The opinion continues: " The Constitution does not state when the consent 
 of Congress shall be given, whether it shall precede or follow the compact 
 made, or whether it shall be express or may be implied. In many cases the 
 consent will usually precede the compact or agreement, as to where it is to lay 
 a duty of tonnage, to keep troops or ships of war in time of peace, or to 
 engage in war. But where the agreement relates to a matter which could not 
 well be considered until its nature is fully developed, it is not perceived why 
 the consent may not be subsequently given. Story says that the consent may 
 be implied, and is always to be implied when Congress adopts the particular 
 act by sanctioning its objects and aiding in enforcing thorn; and observes that 
 where a State is admitted into the Union, notoriously upon a compact made 
 between it and the State of which it previously composed a part, there the 
 act of Congress, admitting such State into the Union, is an implied consent to 
 the terms of the compact. Knowledge by Congress of the boundaries of a 
 State, and of its political subdivisions, may reasonably be presumed, as much 
 of its legislation is affected by them, such as relates to the territorial juris- 
 diction of the courts of the United States, the extent of their collection dis- 
 tricts, and of districts in which process, civil and criminal, of their courts 
 may be served and enforced." 
 
 6 See article "Are the States Equal under the Constitution?" by W. A. 
 Dunning, in Political Science Quarterly, III, 425.
 
 INTERSTATE RELATIONS: COMPACTS BETWEEN STATES. 239 
 
 are to enjoy, and declares that all powers not granted to the 
 United States shall be considered as reserved " to the States." 
 From this it almost irresistibly follows that Congress has not the 
 right to provide that certain members of the Union, possessing 
 full statehood, shall have their constitutional competences in any 
 manner less than that of their sister States. According to this, 
 then, though Congress may exact of territories whatever condi- 
 tions it sees fit as requirements precedent to their admission as 
 States, when admitted as such, it cannot deny to them any of the 
 privileges and immunities which the other Commonwealths enjoy. 
 
 114. Equality of the States. 
 
 The principle of the equality of the States had its origin before 
 the adoption of the Constitution itself. In the acts of cession by 
 the several States through which the old Confederacy obtained the 
 control of the Xorthwest Territory, it was provided that from 
 this vast area new States should, from time to time, be organized, 
 which should be admitted to the Confederacy, with the same 
 sovereign rights enjoyed by other States. 
 
 The famous Xorthwest Ordinance of 1787, re-enacted by the 
 Congress of the United States in 1789, after laying down the 
 general conditions upon which statehood was to be accorded, 
 declared that the States, so admitted, should be " on an equal 
 footing with the original States in all respects whatever." 
 
 Notwithstanding, however, this requirement of equality, Con- 
 gress at an early date began the practice of exacting from would-be 
 States various promises by the terms of which they were to hold 
 themselves bound after their admission to the Union and until 
 Congress should release them. Thus, for example, beginning in 
 1802 with Ohio, the first State formed from the Xorthwest Terri- 
 tory, it was demanded by Congress that that State, when ad- 
 mitted, should pass an ordinance, irrevocable without the consent 
 of Congress, not to tax for five years all public lands sold by the 
 United States; and a requirement substantially similar was de- 
 manded of many of the States later formed. When Missouri was 
 admitted in 1821 it was required to declare that its Constitution
 
 240 UNITED STATES CONSTITUTIONAL LAW. 
 
 should never be so construed as to permit its legislature to pass 
 a law excluding citizens of other States from the enjoyment of 
 any of the privileges and immunities granted them by the federal 
 Constitution. 7 
 
 Beginning with the admission of Nevada in 1864, the promises 
 exacted of Territories seeking admission as States assumed a 
 more political character. Of Xevada it was required that her 
 Constitution should harmonize with the Declaration of Inde- 
 pendence and that the right to vote should not be denied persons 
 on account of their color. Of Xebraska, admitted in 1867, it was 
 demanded that there should be no denial of the franchise or any 
 other right on account of race or color, Indians excepted. Of the 
 States that had attempted secession, still more radical were the 
 requirements precedent to the granting to them of permission 
 again to enjoy the other rights which they had for the time being- 
 forfeited. Of all of them it was required that there should be, 
 by their laws, no denial of the right to vote except for crime; 
 and of three, that negroes should not be disqualified from holding 
 office, or be discriminated against in the matter of school privi- 
 leges. 8 Finally, Utah, when admitted as a State in 1894, was 
 required by Congress by the Enabling Act to make " by ordinance 
 irrevocable without the consent of the United States and the 
 people of the United States, provisions for perfect religious tolera- 
 tion and for the maintenance of public schools free from sectarian 
 control; and that polygamous or plural marriages are forever 
 abolished." 
 
 It would seem that as regards the enforcealulity of these con- 
 tracts, a distinction is to be made between those that attempt 
 to place the State under political restrictions not imposed upon 
 all the States of the Union by the federal Constitution, and those 
 which seek the future regulation of private, proprietary interests. 
 
 7 A superfluous requirement, for with or without such a promise, a State is, 
 and was then, constitutionally unable to deprive any one of the rights guar- 
 anteed by the federal Constitution. 
 
 8 By the adoption of the Fourteenth and Fifteenth Amendments, some of 
 these limitations have been made applicable to all the States and thus an 
 equality, as to them, created.
 
 IXTEESTATK liKLATK >NS ; ( '< >.M TACTS BETWEEN STATES. 241 
 
 The first class of these agreements the Supreme Court has 
 repeatedly held are not enforceable against the State after it has 
 been admitted into the Union. 
 
 In Pollard v. Ilagen 9 the court held that a stipulation of an 
 act of Congress passed for the admission of the State of Alabama 
 into the Union that "' all navigable waters within the said State 
 shall forever remain public highways, 'f ree to the citizens of said 
 State, and of the United States, without any tax, duty, impost or 
 toll therefor, imposed by said State " did not give to the United 
 States any greater control of the navigable waters of that State 
 than was possessed by the Federal Government over the waters 
 of any other State. 10 
 
 In Esranaba v. Lake Michigan Transportation Co. 11 the court 
 declared, relative to certain limitations placed upon the govern- 
 ing powers of Illinois while in a territorial condition: "What- 
 ever the limitations upon her powers as a government while 
 in a territorial condition, whether from the Ordinance of 17^7 
 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 en- 
 titled to and possessed of all the rights of dominion and sover- 
 eignty which belonged to the original States. .She was admitted 
 and could be admitted only on the same footing with them." 
 
 And in Boln v. Nebraska 12 it was declared: " This court has 
 held in many cases that, whatever be the limitations upon the 
 power of a territorial government, they cease to have any opera- 
 tive force, except as voluntarily adopted after such Territory has 
 become a State of the. Union. Upon the admission of a State it 
 becomes entitled to and possesses all the rights of dominion and 
 
 93 Hov.-. 212; 11 L. ed. 565. 
 
 IOC 1 /. Strader v. Graham, 10 How. 82; 13 L. ed. 337; Weber v. Harbor 
 -Commissioners. 18 Wall. 57: 21 L. ed. 70S; Sands v. Manistee River Imp. 
 Co., 123 U. S. 288; 8 Sup. Ct. Rep. 113; 31 L. ed. 149; Shively v. Bowlby. 
 152 U. S. 1; 14 Sup. Ct. Rep. 548; 38 L. ed. 331. 
 
 107 U. S. 678; 2 Sup. Ct. Rep. 185; 27 L. ed. 442. 
 
 u 176 U. S. 83; 20 Sup. Ct. Rep. 287; 44 L. ed. 382. 
 
 1C
 
 242 TisiTED STATES CONSTITUTIONAL LAW. 
 
 sovereignty which belongs to the original States, and, in the 
 language of the act of 1867 admitting the State of Nebraska, 
 it stands upon an equal footing with the original States in all 
 respects whatever." 
 
 In the foregoing cases reference was had, as appears from the 
 quotations, to States created out of Territories. There would 
 seem to be, however, no reason why the same doctrine should not 
 be applied to the political limitations exacted of a number of the 
 Southern States at the time of their readmission to full constitu- 
 tional privileges after the period of the Civil War and Recon- 
 struction. 
 
 115. Contracts Regarding Proprietary Interests. 
 
 Turning now to a consideration of the continued validity and 
 enforceability of compacts between the States and General Govern- 
 ment with reference to proprietary interests, one finds the com- 
 paratively recent case of Stearns v. Minnesota 13 most ^illunrinat- 
 ing. That case involved the construction and application of an 
 agreement made by the State with the United States at the time 
 of its admission to the Union, with reference to public lands, 
 within its boundaries, owned by the United States. The court 
 in its opinion say: " That these provisions of the Enabling Act 
 and the Constitution, in form at least, made a compact between 
 the United States and the State, is evident. In an inquiry as 
 to the validity of such a compact this distinction must at the 
 outset be noticed. There may be agreements or compacts 
 attempted to be entered into between two States, or between the 
 State and the Nation, in reference to political rights and obliga- 
 tions, and there may be those solely in reference to property 
 belonging to one or to the other. That different considerations 
 may underlie the question as to the validity of these two kinds 
 of compacts or agreements is obvious. It has often been said 
 that a State admitted into the Union enters therein in full 
 equality with all the others, and such equality may forbid any 
 agreement or compact limiting or qualifying political rights and 
 
 "179 U. S. 223; 21 Sup. Ct. Rep. 73; 45 L. ed. 162.
 
 INTERSTATE RELATIONS: COMPACTS BETWEEN STATES. 243 
 
 obligations; whereas, on the other hand, a mere agreement in 
 reference to property involves no question of equality of status, 
 but only of the power of a State to deal with the Nation or with 
 any other State in reference to such property. The case before 
 us is one involving simply an agreement as to property between 
 a State and the Xation. That a .State and the Nation are com- 
 petent to enter into an agreement of such a nature with one 
 another has been affirmed in past decisions of this court, and 
 that they have been frequently made in the admission of new 
 States, as well as subsequently thereto, is a matter of history. 
 . . . We are of opinion that there was a valid contract made 
 with these companies in respect to the taxation of these lands 
 a contract which it was beyond the power of the State to impair ; 
 that this subsequent legislation does impair that contract and 
 cannot, therefore, be' sustained." 
 
 116. Suits Between States. 
 
 This subject will be treated in connection with the Judicial 
 Power of the United States. 14 
 
 " See chapter LIII.
 
 CHAPTER XVI. 
 
 THE PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED 
 STATES: STATUS OF ALIENS. 
 
 117. Territorial Sovereignty. 
 
 By international law and by the public law of all civilized 
 States the legal jurisdiction of a State is generally recognized 
 to extend over all persons for the time being within the districts 
 under its de facto control. The only exceptions, if exceptions 
 they be, are those coming within the principle of extraterri- 
 toriality. A State has jurisdiction over, not only its native-born 
 and naturalized subjects, but all the subjects of other States 
 permanently or, at any given time, temporarily resident, within 
 its borders. 
 
 Nowhere, perhaps, has this general constitutional principle 
 been better stated than by Marshall in the great case of The 
 Exchange, 1 decided in 1812. In the opinion rendered in this 
 case, the Chief Justice, after pointing out that the jurisdiction 
 of a State within its own territory is necessarily exclusive as well 
 as absolute, goes to show that the exceptions to this principle, 
 generally recognized in practice, are themselves founded upon the 
 will of the State recognizing them. Thus the so-called doctrine 
 of extraterritoriality, though often spoken of as a fiction, namely 
 that the diplomatic representatives and their establishments, and 
 public ships of war, are upon, or are parts of, the territory of 
 the .States to which they belong, is not a necessary fiction. Such 
 immunity from local jurisdiction as exists is due to the consent 
 of the local State. That is to say, it is by an exercise of the juris- 
 diction of that State that these persons are exempted from the 
 operation, though entitled to the protection, of the local law. 
 
 118. De Facto Control. 
 
 The authority of 'States over districts and their inhabitants 
 temporarily subject to its de facto control, will be considered in 
 
 17 Cr. 116; 3 L. ed. 287. 
 
 [244]
 
 PEESOXS SUBJECT TO JUBISDICTION or UNITED STATES. 245 
 
 another chapter. At this place it will be sufficient to quote the 
 opinion in United States v. Rice 2 in which, with reference to the 
 status of the port of Castine, Maine, at the time it was in the 
 possession of the British authorities during the War of 1812, the 
 Supreme Court, speaking through Justice 'Story, said: ''By the 
 conquest and military occupation of Castine, the enemy acquired 
 that firm possession which enabled him to exercise the fullest 
 rights of sovereignty over that place. The sovereignty of the 
 United States over the territory was, of course, suspended, and 
 the laws of the United States could no longer be rightfully en- 
 forced there, or be obligatory upon the inhabitants who remained 
 and submitted to the conquerors. By the surrender, the inhabit- 
 ants passed under a temporary allegiance to the British Govern- 
 ment, and were bound by such laws, and such only, as it chose to 
 recognize and impose. From the nature of the case, no other 
 laws could be obligatory upon them; for, where there is no pro- 
 tection or allegiance or sovereignty, there can be no claim to 
 obedience." 
 
 Upon this same point, Chancellor Kent in his Commentaries 
 says : " If a portion of the country be taken and held by con- 
 quest in war, the conqueror acquires the rights of the conquered 
 as to its dominion and government, and children born in the 
 armies of a State, while abroad, and occupying a foreign country, 
 are deemed to be born in the allegiance of the sovereign to whom 
 the army belongs. It is equally the doctrine of the English com- 
 mon law that during such hostile occupation of a territory, and 
 the parents adhering to the enemy as subjects de facto, their 
 children, born under such a temporary dominion, are not born 
 under the ligeance of the conquered." And, he adds, there is 
 no reason why the same principles should not apply to the United 
 States. 3 
 
 119. Status of Aliens. 
 
 As regards the status of aliens, that is, subjects of other States, 
 who are temporarily or permanently domiciled in a State, it may 
 
 24 Wh. 246; 4 L. ed. 562. 
 36th ed. II, 42.
 
 246 UNITED STATES CONSTITUTIONAL LAW. 
 
 be said that the fact that they are within the territorial limits 
 makes them, in a broad constitutional sense, members of that State 
 and, therefore, subject to the authority of its laws, though they 
 still remain the subjects or citizens of their native States. In 
 fact, being under the protection of the State where they are, they 
 owe an allegiance to it according to the maxim protectio trahit 
 subjectionem, et subjectio protectionem. Webster, when Secre- 
 tary of .State, in his report on Thrasher's Case in 1851, de- 
 clared : " Independently of a residence with intention to con- 
 tinue such residence, independently of the taking of any oath of 
 allegiance, or of renouncing any former allegiance, it is well 
 known, that by the public law an alien, or a stranger born, for so 
 long a time as he continues within the dominions of a foreign gov- 
 ernment, owes obedience to the laws of that government, and may 
 be punished for treason or other crimes as a native-born subject 
 might be, unless his case is varied by some treaty speculations." 4 
 This principle thus stated by Webster has been several times 
 quoted and approved by the Supreme Court. 5 
 
 120. Double Allegiance. 
 
 There is no objection to predicating the existence of this double 
 allegiance, for, despite the fact that modern sovereignty is gen- 
 erally spoken of as territorial, it is, in fact, personal, and imports 
 a personal relationship between the sovereign political person 
 the State and its political inferiors, its subjects. Sovereignty 
 in truth is a purely legal concept and exists only within the field 
 of constitutional law. International relations, the relations be- 
 tween States, are not legal in character, and international laws, 
 so-called, are not laws at all in a strict positive sense. They are 
 not commands from a legal superior to a legal inferior, but are 
 regulations governing the conduct of political equals. Within this 
 general international field the authority or jurisdiction of govern- 
 ments is strictly territorial over each territorial district there 
 
 * Webster's Works, VI, 526. 
 
 5 United States v. Carlisle, 16 Wall. 147; 21 L. ed. 426; United States v. 
 Wong Kim Ark, 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.
 
 PERSONS SUBJECT TO JURISDICTION OF UNITED STATES. 247 
 
 is a particular de facto government recognized by the various 
 States to have a right based upon actual power, to exercise politi- 
 cal control, and, correspondingly, is held by them responsible for 
 whatever occurs' within such districts. Internationally speaking, 
 therefore, jurisdiction is territorial and exclusive. Over any given 
 territory, one, and only one, governing body is recognized to have 
 legitimate authority. But sovereignty, denoting, as said, legal 
 supremacy, a personal relationship, as predicated upon a legal sub- 
 jection or allegiance of individuals to a legal superior, is not 
 territorial; and there is thus no inherent difficulty in a sovereign 
 claiming legal authority over individuals located outside of the 
 limits of the territory conceded by other nations to belong to it; 
 or of two or more States claiming at the same time, under the 
 operation of their respective municipal laws, the allegiance of the 
 same individual, as for instance, as we shall presently see, when 
 one State naturalizes the subject of a State whose municipal law 
 does not recognize the right of expatriation. 
 
 From the viewpoint of international relations, as we have just 
 seen, the law of one State is not permitted by other States to 
 operate outside of the territorial limits of the State which pro- 
 mulgates it, and, therefore, though claiming a legal authority 
 over an individual outside of such limits, a State will not be per- 
 mitted by other States to exercise it against the consent of the 
 State within whose limits the individual is situated. But that 
 does not render impossible the existence of or invalidate such a 
 claim, for when, if ever, such an individual is apprehended within 
 the territory of the State claiming authority over him he may 
 be held responsible for acts committed while abroad. And also, 
 as still more plainly showing the personal and non-territorial 
 character of allegiance and sovereignty is the principle universally 
 recognized both in municipal and international law, that a citizen 
 of a State is in many cases entitled to the protection of that State 
 while abroad. Thus he does not in any way lose his citizenship 
 by departing from the territorial limits of the State of which he 
 is a member, nor does he escape from beneath its law or cease to be 
 entitled to its protection.
 
 248 UNITED STATES CONSTITUTIONAL LAW. 
 
 121. Status of Aliens in the United States. 
 
 In the preceding section it has been shown that a State has 
 absolute legal authority over all persons within its territorial 
 jurisdiction, and over its own citizens wherever they may be. In 
 the exercise, however, of this authority over persons within its 
 territorial limits who are claimed as citizens by other States, that 
 is, over resident aliens, or naturalized citizens whose native 
 States do not recognize the right of expatriation, this legal power, 
 though not subject to legal limitation, is actually subject to cer- 
 tain limitations which international custom has created. Thus 
 each State demands that its subjects, when abroad, shall receive 
 protection in life and property, and in their private rights be not 
 unduly discriminated against by the foreign State in which they 
 may happen to be. Also States do not permit the foreign States to 
 require from their subjects the performance of duties that prop- 
 erly may be required only of citizens, as, for example, service in 
 its army. Resident aliens may indeed be required to lend their 
 assistance, by service in the militia and police forces, or in a posse 
 comi'tatus, to put down domestic disorder; for, enjoying the pro- 
 tection of the local law, they may fairly be required to aid in over- 
 coming resistance to its enforcement. But they may not be com- 
 pelled to serve in the national military forces in cases of public 
 war. 
 
 During the Civil War, Great Britain did not object to the en- 
 rollment in the local militia of her citizens domiciled in the 
 United States; and in the case of one Scott, who had declared 
 his intention of becoming an American citizen, refused to take 
 any steps to prevent his enrollment in the army in the field. 
 Great Britain, however, emphatically protested to the government 
 of the Southern Confederacy against the conscription of her sub- 
 jects in the Southern States. Several of the leading European 
 powers protested against the attempt on the part of the United 
 States to conscript into its armies domiciled aliens who had de- 
 clared their intention of becoming American citizens, whereupon 
 the United States granted to such aliens sixty-five days in which 
 to leave the country, upon failure to do which they were held liable
 
 PEESOXS SUBJECT TO JURISDICTION OF UNITED STATES. 2 
 
 to conscription ; and this arrangement was acquiesced in by the 
 Powers concerned, though not without complaint that the prin- 
 ciples of international comity were being violated. When, in 
 1873, the 'State of Nicaragua attempted by an amendment to her 
 Constitution to make foreigners liable to military and other pub- 
 lic services, protests from the American ^Minister were made, in 
 cuiisequence of which the project was abandoned. 
 
 122. Domiciled Aliens. 
 
 A distinction is made in practically all countries between domi- 
 ciled and non-domiciled aliens, with reference to the legal burdens 
 that may be imposed and the civil and political rights that may be 
 enjoyed. 
 
 An alien becomes domiciled in a particular place when he takes 
 up residence there with an intention to remain for an indefinite 
 time (aniiiio manendi). When so domiciled, all matters other 
 than political, which relate to his personal status, are regulated 
 by the le.r doinicilii. Thus the local law governs his power to 
 enter into contracts, regulates succession to personal property, and 
 the validity of wills with reference thereto, and, in the United 
 States, England, and many of her dependencies, determines the 
 validity of marriages. In France, and some other countries, how- 
 ever, this last subject is held regulated by the individual's national 
 law wherever he may be domiciled. Thus, while the marriage in 
 the United States of a Frenchman domiciled in the United States 
 is held valid by the United States law if its provisions governing 
 marriages are satisfied, it would not be held valid in France, un- 
 the r< 'piirements <if the French law were also satisfied. 
 
 Domicile is immediately fixed when residence is taken up with 
 the intent to remain for an indefinite length of time. Thus, for 
 example, in 17 s ! when tin- English captured from the Dutch the 
 island of St. Eiisrarins, a native-born English citizen who had 
 arrived at the i>land but a few hours before with the intention of 
 refilling there for an indefinite length of time, was held to be 
 domiciled there and his property subject to the same liabilities 
 as those of the other iv-Mcni- of the place. The same doctrine
 
 250 UNITED STATES CONSTITUTIONAL LAW. 
 
 was applied by the Supreme Court of the United States in the 
 case of The Venus. 6 In this case with reference to the status of 
 such a domiciled alien in time of war the court said : " The next 
 question is, what are the consequences to which this acquired 
 domicile may legally expose the person entitled to it, in the event 
 of a war taking place between the government under which he 
 resides and that to which he owes a permanent allegiance? A 
 neutral in his situation, if he should engage in open hostilities 
 with the other belligerent, would be considered and treated as an 
 enemy. A citizen of the other belligerent could not be so con- 
 sidered, because he could not, by any act of hostility, render him- 
 self, strictly speaking, an enemy, in the strict sense of the word, 
 yet he is deemed such with reference to the seizure of so much 
 of his property concerned in the trade of the enemy, as is con- 
 nected with his residence. It is found adhering to the enemy. 
 He is himself adhering to the enemy, although not criminally so, 
 unless he engages in acts of hostility against his native country, 
 or, probably refuses, when required by his country, to return. The 
 same rule as to property engaged in the commerce of the enemy 
 applies to neutrals; and for the same reason. The converse of 
 this rule inevitably applies to the subject of a belligerent State 
 domiciled in a neutral country; he is deemed a neutral by both 
 belligerents, with reference to the trade which he carries on with 
 the adverse belligerent, and with all the rest of the world. 
 
 "But this national character which a man acquires by residence, 
 may be thrown off at pleasure, by a return to his native country, 
 or even by turning his back on 'the country in which he resided, 
 on his way to another. To use the language of Sir \Y. Scott, it 
 is an adventitious character gained by residence and which ceases 
 by non-residence. It no longer adheres to the party from the 
 moment he puts himself in motion, bona fide, to quit the country 
 sine animo revertendi/' 
 
 123. Aliens not Domiciled. 
 
 An alien passing through the United States, or for any .purpose 
 only temporarily in the country, is held fully subject to local 
 
 68 Cr. 253; 3 L. ed. 553.
 
 PERSONS SUBJECT TO JURISDICTION OF UNITED STATES. 251 
 
 criminal law. He is also able to enter into civil contracts which 
 may be enforced against him to the extent of any property that 
 he may have within the United States. 
 
 124. Exclusion and Expulsion of Aliens. 
 
 All countries have, according to the principles of international 
 law, the right to determine for themselves whether or not they 
 will admit aliens within their borders, or whether they will admit 
 some and not others. Furthermore, after admission, aliens, 
 whether domiciled or not, may remain only so long as the State 
 where they are sees fit to permit them to do so. These rights 
 exercised arbitrarily, oppressively, or opprobriously may give rise 
 to just grounds of complaint upon the part of States whose sub- 
 jects are thereby injured or discriminated against. But the ex- 
 istence of the right of an independent State to determine for itself 
 whom it will receive or allow to remain within its borders, cannot 
 be questioned. 
 
 125. The Chinese. 
 
 The right of the United States, from both the international and 
 constitutional viewpoints, to prohibit entrance within its borders 
 to such aliens as it may deem undesirable additions to its popu- 
 lation, has been examined and upheld in numerous cases, most of 
 them dealing with the exclusion of the Chinese. 
 
 In the Chinese Exclusion Case, 7 decided in 1887, the Supreme 
 Court said : " 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 considera- 
 tions 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, possessing the 
 powers which are to be exercised for protection and security, is 
 clothed with authority to determine the occasion on which the 
 powers shall bo called forth ; and its determination, so far as the 
 
 7 Sub nom. ( hae Chan Ping v. United States, 130 U. S. 581; 9 Sup. Ct 
 Rep. 623; 32 L. ed. 1063.
 
 252 UNITED STATES CONSTITUTIONAL LAW. 
 
 subjects affected are concerned, are necessarily conclusive uxx>n 
 all its departments and officers. If, therefore, the government 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 se- 
 curity, 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 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 necessity in one case must 
 also determine it in the other. In both cases, its determination 
 is conclusive upon the judiciary. If the government of the country 
 of which the foreigners excluded are subjects is dissatisfied with 
 this action, it can make complaint to the executive head of our 
 government, or resort to any other measure which, in its judg- 
 ment, its interest or dignity may demand ; and there lies its only 
 remedy." 
 
 In this case the court held that so essential to a State is this 
 right of excluding undesired aliens, the State may not be pre- 
 vented, even by treaty, from exercising it at its own discretion. 
 Thus, in holding valid an act of Congress the terms of which were 
 in violation of a treaty previously entered into by this country 
 with China, the court said : " The power of exclusion of foreign- 
 ers being an incident of sovereignty belonging to the government 
 of the United States, as a part of those sovereign powers dgle- 
 gated by the Constitution, the right to its exercise at any time 
 when, in the judgment of the government, the interests of the 
 country require it, cannot be granted away or restrained on be- 
 half of anyone. The powers of government are delegated in trust 
 to the United States, and are incapable of transfer to any other 
 parties. They cannot be abandoned or surrendered. Xor can 
 their exercise be hampered, when needed for the public good, by 
 any considerations of private interest. The exorcise of these pub- 
 lic trusts is not the subject of barter or contract. Whatever 
 license, therefore, Chinese laborers may have obtained previous
 
 PERSONS SITBJECT TO JURISDICTION OB UNITED STATES. 253 
 
 to the act of October 1, 188S, to return to the United States 
 after their departure, is held at the will of the government, rev- 
 ocable at any time, at its pleasure. Whether a proper considera- 
 tion by our government of its previous laws, or a proper respect 
 for the nation whose subjects are affected by its action, ought to 
 have qualified its inhibition and made it applicable only to per- 
 sons departing from the country after the passage of the act. are 
 not questions for judicial determination. If there be any just 
 ground for complaint on the part of China, it must be made to 
 the political department of our government, which is alone com- 
 petent to act upon the subject." 
 
 This power of exclusion, as the Supreme Court has, in a line 
 of cases, held, may be exercised through executive officers without 
 judicial intervention. 8 
 
 As we have seen from the foregoing quotations, the same prin- 
 ciples that support, constitutionally, the right of the United States 
 to exclude aliens, support the right to expel them when occasion 
 demands. Bonfils states the international doctrine as follows: 
 "A State has the right to expel from its territory aliens, individu- 
 ally or collectively, unless treaty provisions stand in the way. 
 . . . In ancient times, collective expulsion was much practised. 
 In modern times it has been resorted to only in case of war. Some 
 writers have essayed to enumerate the legitimate causes of ex- 
 pulsion. The effort is useless. The reasons may be summed up 
 and condensed in a single word: The public interests of the State. 
 Bluntschli wished to deny the States the right of expulsion, but 
 he was obliged to acknowledge that aliens might be expelled by a 
 single administrative measure. (French law of December 2, 
 1840, arts. 7 & 8 Law of Ot. 19, 1797, art. 7.) An arbitrary 
 expulsion may nev< Ttheless give rise to a diplomatic claim." 
 
 v. United State*.' 142 V. S. 651 ; 12 Sup. Ct. "Rep. 336: 35 L. ed. 1146: 
 Fong Yuo Ting v . Unite;! States, 149 U. S. 698; 13 Sup. Ct. Rep. 1016: 37 
 L. <-d. 905; Lein Moon Sing v. United States, 15s U. S. 588; 15 Sup. Ct. Rep. 
 !ii;7: 39 L. ed. 10S2: Turner v. Williams. 194 U. S. 279: 24 Sup. Ct. Rep. 719; 
 4S L. ("]. 979: Unit .. Jtl IVy. l'S U. S. 253: 25 Sup. Ct. Rep. 644; 
 
 49 L. ed. 10-K): (hin Low v. United Stab-. 2u^ I . S. 8; 28 Sup. Ct. Rep. 
 20] : 52 L. ed. 369. 
 
 9Mnnin'1 dti Droit International Pullir. 442: Moore, Digest of International 
 Law, 550.
 
 264: UNITED STATES CONSTITUTIONAL LAW. 
 
 126. Protection of the Persons and Property of Aliens. 
 
 Aliens are, by the general doctrines of public law, entitled to 
 the same protection of person and property as that enjoyed by the 
 citizens of the State in which they are resident. In all cases, 
 when injured, the same means of redress as are open to citizens 
 should be given them. But they are, of international right, en- 
 titled to no special privileges in these respects. 10 
 
 In a number of cases the United States^Govermnent has been 
 called upon by foreign governments to furnish pecuniary and 
 other redress to resident aliens who have been illegally killed, 
 injured, or their property destroyed. These claims have in prac- 
 tically all cases arisen out of injuries received at the hands of 
 mobs moved by feelings of animosity against the injured because 
 of their race. Thus claims of this sort were advanced after the 
 New Orleans Spanish Riots of 1851, the Denver Chinese Riot jn 
 1880, the Chinese Riot in 1885 at Rock Springs in the Territory 
 of Wyoming, the Chinese Riot at Seattle in the same year, and 
 the lynching of certain Italians at New Orleans in 1891. 
 
 In a number of cases the United. States, ex gratia, has paid in- 
 demnities to the injured or to their families, but in no case has- 
 acknowledged that, under the principles of international law, it 
 was obligated to do so. As regards the punishment of those Avho 
 have committed the assaults, the United States has called attention 
 to the fact that this is a matter for the local authorities where the 
 assaults occur. Had, of course, any public officials of the United 
 States participated, as such, in the assaults, or sanctioned them, 
 or, had the United States refused to the injured aliens, or failed 
 to provide them with, the protection which was accorded to Ameri- 
 can citizens, it was admitted that the case would have been dif- 
 ferent, and international responsibility would have been incurred. 
 
 As a result of the McLeod incident, described in section 
 69 of this treatise. Congress passed the next year an act 
 providing that the Supreme Court, the Circuit Court, and the 
 District Courts of the United States should have the power to 
 
 10 See Moore, Digest of International Law, IV, 534, and authorities there 
 cited.
 
 PERSONS SUBJECT TO JURISDICTION OF UNITED STATES. 255 
 
 issue writs of habeas corpus " in all cases of any prisoner or 
 prisoners in jail or confinement, where he, she, or they being sub- 
 jects or citizens of a foreign State and domiciled therein, shall be 
 committed or confined, or in custody, under or by any authority 
 of law, or process founded thereon, of the United States, or of 
 any of them, for or on account of any act done or omitted under 
 any alleged right, title, authority, privilege, protection, or exemp- 
 tion, set up or claimed under the commission or order or sanction 
 of any foreign State or Sovereignty, the validity and effect 
 whereof depend upon the law of nations, or under color thereof.". 11 
 
 The constitutionality of this act can scarcely be questioned. 
 In so far as the United States admits, and properly admits, itself 
 to be responsible to foreign States, it has undoubtedly an implied 
 constitutional power to extend its judicial power sufficiently to 
 enable it to discharge the obligations which its international rela- 
 tions may impose ujpon it. 
 
 It will be observed that under the statutory authority conferred 
 by Section 753 the federal court may, by writs of habeas corpus, 
 obtain possession of, and release persons situated as was McLeod. 
 But it does not give to the federal courts the power to prevent, 
 or secure the punishment of persons committing, acts of violence 
 or other illegal acts within the States upon aliens. That they 
 should be given this authority because, by such acts, the United 
 States may become responsible to foreign powers has been several 
 times suggested in presidential communications to Congress, and 
 
 " Stat. at L. v. 539. At present, as stated in the Revised Statutes 
 (Sec. 753) the power of the federal courts to issue writs of habeas corpus is as 
 follows: "Sec. 753. The writ of habeas corpus shall in no case extend to 
 a prisoner in jail, unless where he is in custody under or by color of 
 the authority of the United States, or is committed for trial before some 
 court thereof; or is 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; or, being a subject or citizen of a foreign 
 State, and domiciled therein, is in custody for an act done or omitted, under 
 any alleged right, title, authority, privilege, protection, or exemption, claimed 
 under the commission, or order, or sanction of any foreign State, or under 
 color thereof, the validity and effect wliereof depend upon the law of nations; 
 or unless it is necessary to bring the prisoner into court to testify."
 
 256 UNITED STATES CONSTITUTIONAL LAW. 
 
 bills providing this have been introduced in that body but never 
 as yet enacted into law. President Harrison in his annual mes- 
 sage of December, 1891, referring to the lynching of the Italians 
 at Xew Orleans, said: "Some suggestions growing out of this 
 unhappy incident are worthy the attention of Congress. It would, 
 I believe, be entirely competent for Congress to make offenses 
 against the treaty rights of foreigners domiciled in the United 
 States cognizable in federal courts. This has not, however, been 
 done, and the federal officers and courts have no power in such 
 cases to intervene either for the protection of a foreign citizen or 
 for the punishment of his slayers. It seems to me to follow, in 
 this state of the law, that the officers of the State charged with 
 police and judicial powers in such cases must, in the considera- 
 tion of international questions growing out of such incidents, be 
 regarded in such sense as federal agents as to make this govern- 
 ment answerable for their acts in cases where,it would be answer- 
 able if the United States had used its constitutional power to 
 define and punish crimes against treaty rights." 
 
 A bill carrying out the suggestion here made was introduced 
 into Congress but not enacted into law, and from time to time 
 since then substantially similar measures have been urged upon 
 Congress in presidential messages, and have been introduced and 
 debated but without result. The matter has also been debated by 
 the American Bar Association and the American Society of Inter- 
 national Law. The constitutionality of a law giving this addi- 
 tional jurisdiction to the federal courts has been questioned, but, 
 it would seem, not with good reason. A decision of the Supreme 
 Court that would seem to sanction such legislation is that of 
 L T nited States v. Arjona. 12 Arjona, the defendant, was indicted 
 under an act of Congress of 1884 providing for the punishment 
 of persons counterfeiting, the securities of foreign governments. 
 L'pon the constitutionality of this act being questioned upon the 
 ground that, though the LTnited States had the implied right to 
 declare criminal the counterfeiting of its own bonds' and notes, it 
 had not the power thus to protect those of the other powers, the 
 
 12 120 U. S. 479; 7 Sup. Ct. Rep. G28: 30 L. cd. 728.
 
 PERSOXS SUBJECT TO JURISDICTION OF UNITED STATES. 257 
 
 Supreme Court, in its opinion, say: " The National Government 
 is ... made responsible to foreign nations for all violations 
 by the United States of their international obligations, and be- 
 cause of this Congress is expressly authorized to i define and 
 punish . . . offenses against the law -of nations.' . . . Con- 
 sequently a law which is necessary and proper to afford this pro- 
 tection is one that Congress may enact because it is one needed to 
 carry into execution a .power conferred by the Constitution on 
 the Government of the United States exclusively. There is no 
 authority in the United States to require the passage and enforce- 
 ment of such a law by the States. Therefore, the United States 
 must have the power to pass it and enforce it themselves, or be 
 unable to perform a duty which they may owe to another nation 
 and which the law of nations has imposed upon them as part of 
 the international obligations. This, however, does not prevent a 
 State from providing for the punishment of the same thing, for 
 here, as in the case of counterfeiting the coin of the United States, 
 the act may be an offense against the authority of a State, as well 
 as that of the United States." 13 
 
 13 Cf. on this whole subject the essay by J. I. Chamberlain, The Position 
 of the Federal Government of the United Plates in Regard to Crimes Com- 
 mitted against the Subjects of a Foreign Nation Within the States. Also 
 Reports of American Bar Association for 1801, 1892, 1893; Congressional 
 Record. 52nd Confess, 1st Session. 1892; Annual Message of President, 
 December. 1901, and Proceedings of the American Society of International 
 Law, 1907. 
 
 17
 
 CHAPTEK XVII. 
 
 AMERICAN CITIZENSHIP. 
 
 127. Citizenship Defined. 
 
 From the consideration of the status of aliens, we turn to an 
 examination of the status of citizens or subjects. 
 
 The citizen or subject body of a State, regarded from the view- 
 point of other States, that is, from the viewpoint of International 
 Law, constitutes one homogeneous body, all the members of which 
 have the same status, the same rights and duties. Considered, 
 however, from the viewpoint of the constitutional or municipal 
 law of the State in question, they may be grouped into distinct 
 classes, with differing public and private rights. Thus it is that 
 in the constitutional jurisprudence of the United States we have 
 at present not only a distinction between federal and state citizen- 
 ship, but, within the class of federal citizens, as including all those 
 persons subject to the full sovereignty of the United States, a 
 distinction between those who are " citizens of the United States " 
 according to the meaning of that phrase as used in the Constitu- 
 tion of the United States, and those who, though subjects of the 
 United States, are not citizens within this narrower constitutional 
 sense. 
 
 In Minor v. Happersett, 1 decided in 1875, the definition of 
 citizenship, its essential character, and the privileges necessarily 
 attached to its possession, were examined in passing upon the 
 claim made that a woman, as a citizen of the United States, might 
 not, simply because of her sex, be denied by a State the right of 
 suffrage. In denying this claim, Chief Justice Waite, who ren- 
 dered the unanimous opinion of the court, declared : " There 
 cannot be a nation without a people. The very idea of a political 
 community, such as a nation is, implies an association of persons 
 for the promotion of their general welfare. Each one of the per- 
 
 121 Wall. 162; 22 L. ed. 627. 
 
 [258]
 
 AMERICAN CITIZENSHIP. 259 
 
 sons associated becomes a member of the nation formed by the 
 association. He owes it allegiance and is entitled to its protection. 
 Allegiance and protection are, in this connection, reciprocal obliga- 
 tions. The one is a compensation for the other; allegiance for pro- 
 tection and protection for allegiance. For convenience it has been 
 found necessary to give a name to this membership. The object is 
 to designate by a title the person and the relation he bears to the 
 nation. For this purpose the words ' subject/ ( inhabitant,' and 
 ' citizen ' have been used, and the choice between them is some- 
 times made to depend upon the form of the government. Citizen 
 is now more commonly employed, however, and as it has been con- 
 sidered better suited to the description of one living under a re- 
 publican government, it was adopted by nearly all of the States 
 upon their separation from Great Britain, and was afterward 
 adopted in the Articles of Confederation and in the Constitution 
 of the United .States. \VTien used in this sense it is understood as 
 conveying the idea of membership of a nation, and nothing 
 more." 2 
 
 2 See, holding that the elective franchise is not a necessary incident of 
 citizenship: 1. As to negroes Smith v. Moody, 1866 (26 Ind. 299); 
 United States v. Crosby, 1871 (1 Hughes, 448) ; Anthony v. Holderman, 1871 
 (7 Kans. 50) ; Van Valkenburg v. Brown, 1872 (43 Cal. 42) ; United States 
 v. St. Petersburg (3 Hughes, 493) ; United States v. Reese, 1875 (92 U. S. 
 214; 23 L. ed. 503); and see Opinions of Justices, 1857 (44 Me. 507). 
 
 2. As to women Spencer v. Board, 1873 (8 D. C. 169); United States v. 
 Anthony, 1873 (11 Blatchf. 200); Minor v. Happersett, 1874 (21 Wall. 162; 
 22 L. ed. 627); Dorsey v. Brigham (177 111. 250); Gougar v. Timberlake, 
 189G (148 Ind. 38); and see also People v. Oldtown, 1878 (88 111. 202); 
 also Ware v. Wi.sner, 1883 (50 Fed. 310) holding that women are citizens. 
 
 3. As to minors Lyons v. Cunningham, 1884 (66 Cal. 42) ; and see People 
 v. Oldtown, supra. 4. As to Indians, holding that though they may have 
 voted, this did not make them citizens Laurent v. State, 1863 (1 Kans. 313). 
 5. As to aliens Spragins v. Houghton, 1840 (2 Scam. 3 111. 377); 
 In re Wehlitz. 1863 (16 Wis. 443): United States v. Hirschfield, 1876 (13 
 Blatchf. 330 i : Lanz v. Randall, 1876 (4 Dill. 425) ; City of Minneapolis v. 
 Reum, 1893 (56 Fed. 576). An averment in pleading that one was "a 
 citizen and resident " was held not equivalent to a pecific charge that he 
 was an "elector" Blanck v. Pausch, 1885 (113 111. 60). That the elective 
 franchise is not a right of citizenship is shown also by the fact that the 
 courts have repeatedly sustained legislation which provides for a certain prior 
 residence before voting in the county, town, and precinct. See Anthony v.
 
 260 UNITED STATES CONSTITUTIONAL LAW. 
 
 128. State and Federal Citizenship Distinguished. 
 
 As adopted, the federal Constitution contained no definition of 
 citizenship. Impliedly, however, it recognized a state citizenship 
 in that clause which provides that " citizens of each State shall 
 be entitled to all the privileges and immunities of citizens in the 
 several States." It would also seem to have recognized a federal 
 citizenship in the clauses providing that the President shall be 
 " a natural born citizen, or a citizen of the United States at the 
 time of the adoption of the Constitution;" that Senators and Rep- 
 resentatives shall have been nine and seven years respectively 
 citizens " of the United States;" and that Congress sljall have the 
 power to pass laws regulating the naturalization of aliens. 
 
 The relationship between these two citizenships, state and na- 
 tional, however, the Constitution did not expressly determine. 
 
 There has never been any question as to the existence under 
 the Constitution of a distinction between state and federal citi- 
 zenship. 3 The only dispute has been as to the relation of the two. 
 
 Prior to the argument of the Dred Scott case there was sur- 
 prisingly little discussion of this point. The opinion generally 
 held seems, however, to have been that every citizen of a State was 
 a citizen of the United States. This was the view declared by 
 Rawle in his work on the Constitution and by Story in his Com- 
 mentaries. Story says : " Every citizen of a State is ipso facto 
 a citizen of the United States." 4 But it would appear that 
 Story did not hold that the federal citizen body is made up ex- 
 clusively of state citizens, for in the next section he adds: ''And 
 
 Holderman, 1871 (7 Kans. 50). And for the imposition of other require- 
 ments for voting see Anderson v. Baker. 1865 (23 Md. 531) ; People v. De 
 La Guerra, 1870 (40 Cal. 311). 
 
 This note is taken from the Report on Citizenship, 1906. H. R. Doc. Xo. 326, 
 59th Cong., 2d Session, p. 46. 
 
 3 See, for instance, the early ease of Talbot v. Janson (3 Call. 133 I, decided 
 in 1795, in which the renunciation of state citizenship, for which provision 
 wns made by the state Constitution, was held not to operate as a renuncia- 
 tion of allegiance to the United States. Of course, state citizenship may be 
 lost by residence outside of the State without national citizenship being 
 affected. (Prentiss v. Brennan, 2 Blatchf. 162.) 
 
 1687.
 
 AMEBICAN CITIZENSHIP. 261 
 
 a person who is a naturalized citizeu of the United States, by a 
 like residence in any State of the Union becbmes ipso facto a 
 citizen of that State. So a citizen of a territory of the Union by 
 a like residence acquires the character of the State where he 
 resides." In support of this last statement, Story refers to the 
 case of Gassies v. Ballon. 5 In. that case, decided in 1832, it was 
 held that the allegation that the defendant had been naturalized 
 as an American citizen and was residing in Louisiana was equiva- 
 lent to an averment that he was a citizen of that State. "A citi- 
 zen of the United States," Marshall declared without argument, 
 " residing in any State of the Union, is a citizen of that State." 
 From the foregoing it appears that it was held that there was 
 a reciprocal relationship between federal and state citizenship. 
 By residence in a State a federal citizen became ipso facto a citi- 
 zen of that State ; and a state citizen was ipso facto a federal citi- 
 zen. This doctrine did not, it is evident, decide the question as 
 to which of the two citizenships was the more fundamental. 
 Calhoun and others of his school have, by some writers, been 
 credited with the doctrine that there was no federal citizenship 
 apart from the state citizenship that one could become a fed- 
 eral citizen only by first becoming a citizen of one of the States. 6 
 Calhoun did not, however, take exactly this position. In a speech 
 delivered in the United .States Senate in 1833 upon the then pend- 
 ing Force Bill, he declared : " If by a citizen of the United 
 States he [Senator Clayton] means a citizen at large, one whose 
 citizenship extends to the entire geographical limits of the country 
 without having a local citizenship in some State or Territory, a 
 sort of citizen of the world, all I have to say is that such a citizen 
 would be a perfect nondescript ; that not a single individual of 
 this description can be found in the entire mass of the population. 
 . . . Every citizen is a citizen of some State or Territory, and 
 as such, under an express provision of the Constitution, is entitled 
 to all the privileges and immunities of citizens in the several 
 States; and it is in this and no other sense that we are citizens of 
 the United State-.'' 
 
 66 Pet. 761: S L. <<!. 573. 
 
 6 For example, see Brannon, The Fourteenth Amcntlw'nt. p. 17.
 
 262 UNITED STATES CONSTITUTIONAL LAW. 
 
 From this it will be seen that Calhomi recognized not only a 
 state citizenship but a territorial citizenship, which latter, of 
 course, could be derived only from a federal source. AVhat he 
 and otters of the States' Rights school held was that as between 
 state citizenship and federal citizenship, the former was the more 
 fundamental ; that, in other words, the latter, except as to citizens 
 in the Territories, was derived from the former. The fact of the 
 federal control of naturalization Calhoun explained by alleging 
 that that power was one which enabled Congress simply to remove 
 the disabilities of foreign birth, the several States being left free 
 to decide whether or not, when such disabilities had been removed 
 from aliens resident within their borders, they should be accepted 
 by them as citizens. 
 
 129. The Dred Scott Case. 
 
 The whole question of the relation between state and federal 
 citizenship came up for discussion and decision in the Dred Scott 
 case 7 decided in 1856. Two of the questions involved in this 
 case were: Whether a State might make a negro one of its citi- 
 zens ; and, if so, whether such a one thereby necessarily became a 
 citizen of the United States and as such entitled to the special 
 privileges and immunities created by the Constitution, among 
 which privileges was the right to bring a suit in a federal court 
 under that clause of the Constitution which gives to the federal 
 judiciary the power to hear and determine suits between " citizens 
 of different 'States." 
 
 The plaintiff in this case was a negro of African descent, whose 
 ancestors were of pure African blood, and who had been brought 
 into this country and sold as slaves. The plea in abatement set 
 up that, whether free or not, and whether by the laws of Missouri 
 a citizen of that State or not, Scott was not, and could not by the 
 action of a State be made a " citizen " in the strict sense of that 
 word as used in Article III of the Constitution. In sustaining 
 this plea, Chief Justice Taney in his opinion said : " The words 
 ' people of the United States ' and ' citizens ' are synonymous 
 
 7 Scott v. Sanford, 19 How. 393; 15 L. ed. 691.
 
 AMERICAN CITIZENSHIP. 263 
 
 terms, and mean the same thing. They both describe the political 
 body who, according to our republican institutions, form the sover- 
 eignty, 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 in abatement 
 compose a portion of this people, and are constituent members 
 of this sovereignty. ... 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 a 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. Xor have the several States surrendered the power of 
 conferring these rights and privileges by adopting the Constitu- 
 tion of the United States. Each State may still confer them upon 
 an alien, or anyone it thinks proper, or upon any class or descrip- 
 tion 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 ex- 
 clusive, and has always been held by this court to be so. Conse- 
 quently no State, since the adoption of the Constitution, can, by 
 naturalizing an alien, invest him with the rights and privileges
 
 26-i UNITED STATES CONSTITUTIONAL LAW. 
 
 secured to a citizen of a State under the Federal Government, al- 
 though, so far as the State alone was concerned, he would un- 
 doubtedly be entitled to the rights of a citizen, and clothed with 
 all the rights and immunities which the Constitution and laws 
 of the State attached to that character." 
 
 There was no dissent on the part of any of the Justices of the 
 Supreme Court from the doctrine declared by Taney that it did 
 not lie within the power of the individual States to create federal 
 citizens by admitting whomsoever they should see fit to their own 
 citizenship. Justice Catron, however, argued that, under the 
 pleadings, the plea in abatement, and, therefore, the question of 
 citizenship, was not properly before the Supreme Co-art, and Jus- 
 tices McLean and Curtis in the particular case at bar argued 
 that Scott by fact of birth within the United States was a citizen 
 of the United States, and, by domicile, was a citizen of the State 
 of Missouri. In his dissenting opinion, Justice McLean argued 
 that under the demurrer which was filed to the plea in abatement, 
 Scott was to be considered a free man, and- that, -as such, whether 
 or not he was of negro descent and had been a slave, he was a 
 citizen of the United States and of the State in which he was 
 domiciled. " Being born under our Constitution and laws," he 
 said, " no naturalization is required, as one of foreign birth, to 
 make him a citizen. The most general and appropriate definition 
 of the term i citizen ' is a ' freeman.' Being a freeman, and 
 having a. domicile in a State different from that of the defendant, 
 he is a citizen within the act of Congress, and the courts of the 
 L'nion are open to him." 
 
 Justice Curtis in his dissenting opinion, after declaring the 
 principle that the Constitution must have recognized as citizens 
 of the United States all those who were recognized by the States 
 as citizens at the time the Constitution was adopted, took issue 
 with Chief Justice Taney as to the statement that in 1789 free 
 negroes were nowhere in America recognized as citizens. At that 
 time, he alleged, not only were all free native-born inhabitants of 
 Kew Hampshire, Massachusetts, Xew York. Xew Jersey, and 
 !Korth Carolina, including those descended from African slaves,
 
 AMERICAN CITIZENSHIP. 265 
 
 citizens of those States, but free negroes, where they had the neces- 
 sary qualifications, possessed the franchise of electors on equal 
 terms with other citizens. Hence, he declared, when the Consti- 
 tution was adopted these became citizens of the United States, 
 and of course remained citizens of the .States in which they were 
 domiciled. "I can find nothing in the Constitution," he said, 
 ' which, proprio vigore, deprives of their citizenship any class of 
 persons who were citizens of the United States at the time of its 
 adoption, or who should be native-born citizens of any State after 
 its adoption; nor any power enabling Congress to disfranchise 
 ] t Tsons born on the soil of any State, and entitled to citizenship 
 of such State by its Constitution and laws. And my opinion is, 
 that under the Constitution of the United States, every free per- 
 son born on the soil of a State, who is a citizen of that State by 
 force < f its Constitution or laws, is also a citizen of the United 
 States." s 
 
 s In an able article, entitled " Emancipation and Citizenship " in the Yale 
 Laic Journal, XV, 263 (April, 1906), Mr. Gordon E. Sherman shows coa- 
 clusively the fact that during the period from 1775 to 1789 free negroes 
 \vi io very generally held to be citizens of the colonies or States in which 
 they lived, but that there soon began in some commonwealths a desir* to 
 banish the freednien from their borders, to prohibit their entrance from other 
 States, and to deny the privileges and status of citizenship to such as 
 remained within their several jurisdictions. The historical data supplied by 
 this article fully demonstrate the incorrectness of Taney's assertion that, 
 at the time the Constitution was adopted, the free negro was nowhere re- 
 garded as a citizen or as qualified for citizenship. Furthermore, there had 
 been, prior to the Dred Scott case, several decisions of state courts in 
 which free negroes had been held to be citizens. Thus, for example, in State 
 v. Manuel (3 IVv. & Hat. 20), decided in 1835, the court said: "According 
 to the laws of this State all human beings within it who are not slaves fall 
 within one or two classes. Whatever distinctions may have existed in the 
 Roman law between citizens and free inhabitants^ they are unknown to our 
 institutions. Before our Revolution all free persons born within the dominions 
 of the King of Great Britain, whatever their color or complexion, were native 
 born British subjects; those born out of his allegiance were aliens. Slavery 
 did not exist in Knglnivl, but it did exist in the British colonies. Slaves 
 W<TI> not, in legal parlance, person?, but property. The moment the in- 
 capacity rr di-<iualifieation of color was removed they became persons, 
 and were then either British subjects, according as they wore nr wore not 
 born within the allegiance of the British King. Upon the Revolution no 
 other change took place in the law of North Carolina than was consequent
 
 266 UNITED STATES CONSTITUTIONAL LAW. 
 
 It will be noticed that Curtis, in his opinion, makes federal 
 citizenship dependent on state citizenship that everyone who is 
 by the Constitution or laws of a State a citizen thereof, is 
 ipso facto, a federal citizen, and that, indeed, the General Govern- 
 ment is without the powe; to deny its citizenship to those thus 
 created state citizens by state law. This he states still more ex- 
 
 upon the transition from a colony dependent on an European king to a free 
 and sovereign State. Slaves remained slaves. British subjects in North 
 Carolina became North Carolina freemen. Foreigners, until made members 
 of the State, continued aliens. Slaves manumitted here became freemen; 
 and, therefore, if born within North Carolina are citizens of North Carolina, 
 and all free persons born within the State are born citizens of the State. 
 A few only of the principal objections which have been urged against this 
 view of what we considered the legal doctrine will be noticed. It has been said 
 that by the Constitution of the United States the power of naturalization 
 has been conferred exclusively upon Congress, and therefore it cannot be 
 competent for any State by its municipal regulations to a make a citizen. 
 But what is naturalization? It is the removal of the disabilities of alienage. 
 Emancipation is the removal of the incapacity of slavery. The latter depends 
 wholly upon the internal regulations of the State; the former belongs to 
 the Government of the United States. It would be a dangerous mistake 
 to confound them." 
 
 The court then goes on to show that the state Constitution gave the fran- 
 chise to every adult, without regard to color, who had paid a public tax. 
 For cases holding that the free negro was not a citizen, see Amy v. Smith 
 (1 Litt. [Ky.] 326), decided in 1822; Crandall v. State (10 Conn. 339), de- 
 cided in 1834; State v. Claiborne (1 Meigs [Tenn.] 331), decided in 1S38; 
 Pendleton v. State (6 Ark. 509), decided in 1846; Cooper v. Mayor (4 Ga. 
 68), decided in 1848. In the first of these cases the court said: "Prior to 
 the adoption of the federal Constitution the States had a right of making 
 citizens of any persons they pleased, but as the Constitution does not au- 
 thorize any but white persons to become citizens of the United States it 
 furnishes a presumption that none others were citizens at the time of its 
 adoption." 
 
 In Pendleton v. State^the judge declared: "If citizens in a full and con- 
 stitutional sense, why were^hey not permitted to participate in its formation? 
 They certainly were not. The Constitution was the work of the white race; 
 the Government, for which it provides, and of which it is the fundamental 
 law, is in their hands and under their control ; and it could not have been 
 intended to place a different race of people in all things upon terms of 
 equality with themselves. Indeed, if such had been the desire, its utter im- 
 practicability is too evident to admit of doubt. The two races, differing as 
 they do in complexion, habits, conformation, and intellectual endowments, 
 could not, nor ever will live together upon terms of social or political equality. 
 A higher than human power has so ordered it, and a greater than human
 
 AMERICAN CITIZENSHIP. 267 
 
 plicitly a little later on. The only power granted to Congress with 
 reference to the subject, he says, is that of naturalization, and this 
 extends only to the removal of the disabilities of foreign birth. 
 These disabilities removed, it is left, he declares, with the States 
 individually to determine whether or not the persons thus relieved 
 of such disabilities, are to be admitted to state citizenship and 
 thereby to federal citizenship. Even as to native-born free white 
 persons it is left to the States to determine whether or not they 
 shall be recognized as citizens. In his opinion, Curtis says : " Un- 
 doubtedly, as has already been said, it is a principle of public 
 law, recognized by the Constitution itself, that birth on the soil 
 of a country both creates the duties and confers the rights of 
 citizenship. But it must be remembered, that though the Consti- 
 tution was to form a government, and under it the United States 
 of America were to be one united sovereign nation, to which 
 loyalty and obedience on the one side, and from which protection 
 and privileges on the other, would be due, yet the several sovereign 
 States, whose people were then citizens, were not only to continue 
 in existence, but with powers unimpaired, except so far as they 
 were granted by the people of the National Government. Among 
 the powers unquestionably possessed by the several States, was 
 that of determining what persons should and what persons should 
 not be citizens. It was practicable to confer on the government 
 of the Union this entire power. It embraced what may, wel? 
 enough for the purpose now in view, be divided into three parts: 
 First, the powers to remove the disabilities of alienage, either by 
 special acts in reference to each individual case, or by establishing 
 a rule of naturalization to be administered and applied by the 
 courts. Second : Determining what persons should enjoy the privi- 
 leges of citizenship, in respect to the internal affairs of the several 
 
 agency must change the decree. These who framed the Constitution were 
 aware of this, and hence their intention to exclude them as citizens within 
 the meaning of the clause to which we have referred." 
 
 In a number of cases the courts held a middle position according to which 
 free negroes were described as citizens of an order lower than that of whites. 
 For these, and other references, see Report on Citizenship of the United States 
 (1906), H. R. Doc. Xo. 326, 59th Congress, 2nd Session, pp. 63-66.
 
 268 UNITED STATES CONSTITUTIONAL LAW. 
 
 States. Third: What native-born persons should be citizens of 
 the United States. The first-named power, that of establishing a 
 uniform rule of naturalization, was granted; and here the grant, 
 according to its terms, stopped." 
 
 Referring to that clause of the Constitution which provides that 
 " The citizens of each State shall be entitled to all the privileges 
 and immunities of citizens of the several States," Justice Curtis 
 says : " Xowhere else in the Constitution is there anything con- 
 cerning a general citizenship ; but here privileges and immunities 
 to be enjoyed throughout the United States, under and by force 
 of the national compact, are granted and secured. In selecting 
 those who are to enjoy these national rights of citizenship how 
 are they described ? As citizens of each State. It is to them these 
 national rights are secured. The qualification for them is not to 
 be looked for in any provision of the Constitution or laws of the 
 United States. They are to be citizens of several States, and, as 
 such, the privileges and immunities of general citizenship, de- 
 rived from and guaranteed by the Constitution, are to be enjoyed 
 by them. It would seem that if it had been intended to constitute 
 a class of native-born persons within the .States, who should derive 
 their citizenship of the United States from the action of the Fed- 
 eral Government, this was an occasion for referring to them. It 
 cannot be supposed that it was the purpose of this article to confer 
 the privileges and immunities of citizens in all the States upon 
 persons not citizens of the United States. . . . Laying aside, 
 then, the case of aliens, concerning which the Constitution has 
 recognized the general principle of public law, that allegiance and 
 citizenship depend on the place of birth, that it has not attempted 
 practically to apply this principle by designating the particular 
 classes of persons who should or should not come under it; that 
 when we turn to the Constitution for an answer to the question 
 what free persons, born within the several States, are citizens of 
 the United States, the only answer we can receive from any of 
 its express provisions is, the citizens of the several States are to 
 enjoy the privileges and immunities of citizens in every State, 
 and their franchise as electors under the Constitution depends on
 
 AMKRICAN ( 'rn/.K.xsiiir. 269 
 
 their citizenship in the several States. Add to this, that the Con- 
 stitution was ordained by the citizens of the several States ; that 
 they were ' the people of the United States/ for whom and whose 
 posterity the government was declared in the preamble of the 
 Constitution to be made ; that each of them was * a citizen of the 
 United States at the time of the adoption of the Constitution/ 
 within the meaning of those words in that instrument; that by 
 them the government was to be and was in fact organized; and 
 that no power is conferred on the Government of the Union to 
 discriminate between them, or to disfranchise any of them the 
 necessary conclusion is, that those .persons born within the several 
 States, who by force of their respective constitutions and laws, 
 are citizens of the State, are thereby citizens of the United 
 States. ... It has been objected, -that if the Constitution has 
 left to the several States the rightful power to determine who 
 of their inhabitants shall be citizens of the United .States, the 
 States may make aliens citizens. The answer is obvious. The 
 Constitution has left to the States the determination what persons 
 born within their respective limits, shall acquire by birth citizen- 
 ship of the United States, and it has not left to them any power 
 to prescribe any rule for the removal of the disabilities of alien- 
 age. This power is exclusively in Congress." 9 
 
 In effect, the Dred Scott decision held that native-born negroes, 
 whether free or slave, living in the United States, though subjects 
 of, that is, owing allegiance to the United States, were not, and 
 could not either by state or federal action, be made " citizens " of 
 the United States within the meaning of the Constitution. 
 
 9 At the first hearing of this case before the Supreme Court, four justices, 
 McLean, Catron, Grier, and Campbell, held that the plea in abatement, setting 
 up the question of citizenship, was not properly before the court because the 
 defendant had submitted and pled over to the merits. Justice Nelson was in 
 doubt as to this. Upon the second hearing, Xelson agreed with these four, 
 and, consequently, no one of the five a majority of the court discussed 
 the question in the opinions which they individually rendered. Justices Wayne 
 and Daniel agreed with Tauey and Curtis that the plea was properly before 
 the court.
 
 270 UNITED STATES CONSTITUTIONAL LAW. 
 
 130. The Fourteenth Amendment. 
 
 In 1868 was adopted the Fourteenth Amendment which pro- 
 vides that "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 two main purposes of this declaration undoubtedly were: 
 (1) The assertion that national citizenship is primary and para- 
 mount to state citizenship; and (2) the granting of both national 
 and state citizenship to the negro. That national citizenship was 
 to be paramount is shown not only in the words just quoted, but 
 in the further provision of the amendment that " no State shall 
 make or enforce any law which shall abridge the privileges and 
 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 Jhe equal 
 protection of the laws." 
 
 In the Slaughter House Cases, as we have already learned, 10 
 the Supreme Court held, in effect, that this amendment did not 
 have the effect of absorbing state citizenship and its appurtenant 
 rights into the national citizenship, but that the two remain as 
 distinct as before. Upon this point the court declare: " It [the 
 clause defining citizenship] declares that persons may be citizens 
 of the United States without regard to the citizenship of a par- 
 ticular State, and it overturns the Dred Scott decision by making 
 all persons born within the United States and subject to its juris- 
 diction 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. 11 The 
 next observation is more important. ... It is, that the dis- 
 
 10 Ante, 86. 
 
 u This interpretation of the phrase " subject to its jurisdiction " was a mere 
 dictum of the court, the point not being involved in the suit at bar. More- 
 over it was an incorrect dictum so far as regards persons born within the 
 United States of parents who are aliens. U. S. v. Wong Kim Ark, 169 U. S. 
 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.
 
 AMERICAN CITIZENSHIP. 271 
 
 tinction between citizenship of the United States and citizenship 
 of a State is clearly recognized and established. Xot only may 
 a man be a citizen of the United States without being a citizen 
 of a .State, but an important 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 cir- 
 cumstances in the individual." 
 
 In the above it will be noticed that the court declare that an 
 additional element is necessary to convert a federal citizen into 
 a state citizen. This additional element, furthermore, is one the 
 giving or refusing of which is not within the control of the State. 
 By the mere act of taking up residence within a State, which the 
 State cannot prevent, a federal citizen, ipso facto, becomes a 
 citizen of the State. The State thus no longer has any power to 
 determine who shall be or become its own citizens. The federal 
 Constitution fixes that once for all. 
 
 But though the States may not determine who shall constitute 
 its citizen body, they still retain, as the decision in the Slaughter 
 House Cases goes on to declare, a full authority, free from fed- 
 eral supervision and control, to decide what political privileges 
 as, for. instance, the right to vote, or to hold office shall exist, 
 and who shall be entitled to enjoy them. Thus, upon the one 
 hand, federal and state citizenship does not entitle one, of right, 
 to the suffrage or qualify him for public office. Upon the other 
 hand, the States may grant, and in a number of cases have granted, 
 these privileges to aliens who, though not naturalized, have de- 
 clared their intention, according to the requirements of the na- 
 tional law regulating naturalization, of becoming United States 
 citizens. 
 
 Since the adoption of the Fourteenth Amendment there has 
 been no question but that all persons, including negroes, born or 
 naturalized in the United States become by mere residence in a
 
 272 UXITED STATES CONSTITUTIONAL LAW. 
 
 State citizens of the State. Furthermore, there is, and has been, 
 no question but that, as Taney says in his opinion in the Dred 
 Scott case, a State cannot, by granting its citizenship to an alien, 
 create such a one a federal citizen or endow him with any of 
 the privilege appertaining to that status, for the right of naturali- 
 zation is, as we shall see, exclusively vested in the Federal Gov- 
 ernment. 
 
 But though it has never been authoritatively so decided by the 
 Supreme Court of the United .States, it would seem that while 
 a State cannot prevent a federal citizen from becoming one of its 
 own citizens, it may grant its own citizenship to one not a fed- 
 eral citizen, and even to one, as for instance a Mongolian, who, 
 according to existing federal law, cannot become a federal citi- 
 zen. This position is taken by the state court of Wisconsin in 
 Ee Wehlitz. 12 
 
 In a line of decisions it has been held that a person may by 
 residence abroad lose his state citizenship within the meaning of 
 the constitutional provision which opens the federal courts to 
 suits between citizens of different States, without losing his fed- 
 eral citizenship. 13 
 
 Whether or not a State may make an alien one of its own 
 citizens is quite largely an academic question ; for, as already 
 said, it can, without making him such, endow him with all the 
 privileges of citizenship, and even give him the franchise. In. 
 Arkansas, Indiana, Kansas, Missouri, Xebraska, South Dakota, 
 Texas, Oregon, and Wisconsin, the alien can, according to exist- 
 ing (1909) law, vote at all elections, if he has declared his inten- 
 tion to become a citizen of the United States. It may be added, 
 also, that in a number of States, the alien who has made this 
 declaration is given certain privileges w T hich are denied to other 
 aliens; for example, to hold real estate, and to be employed on 
 public works. By federal law, also, he may preempt and acquire 
 public lands: 14 and, if he dies before becoming actually natural- 
 
 12 16 Wis. 443. See also Desbois' Case, 2 Martin, 185. Contra, Lanz v. 
 Randall, 4 Dill. 428. 
 
 isPrentiss v. Brennan, 2 Blatchf. 162; Picquet v. Swan, 5 Mason, 35. 
 "Rev. Stats., Sees. 2259, 2289.
 
 A.\IJ;J;KA.\ CITIZKNSIIII'. 273 
 
 izecl, his inchoate right to citizenship descends to his widow and 
 children who may be naturalized without themselves making the 
 declaration. 15 He is, on the other hand, liable to certain obliga- 
 tions not required of other aliens; for example, the performance 
 of military service. 16 
 
 131. District of Columbia and Territories. 
 
 Inhabitants of the District of Columbia and of a Territory are 
 not citizens of a State within the meaning of the Constitution. 
 They are, however, of course, citizens of the United States. 17 
 
 132. Boyd v. Nebraska Criticized. 
 
 In Boyd v. Nebraska, 18 decided in 1895, the Supreme Court 
 took the extreme view, that, in the case of a state law or constitu- 
 tion which demanded as one of the qualifications for office, that 
 the incumbent should have -been for two years next preceding his 
 election a citizen of the United States, it did not lie with the 
 tribunals of that State finally to determine in any given case 
 when such citizenship existed ; and, in the case at bar, which was 
 a proceeding in quo warranto, the federal court declared entitled 
 to the office of governor of the State one who the court of that 
 State had declared ineligible hc.-ansc, as it held, he was not a 
 citizen of the United States. In other words, the federal Supreme 
 Court substituted its judgment for that of the State's supreme 
 tribunal as to the existence of a qualification for a state office 
 prescribed by the Constitution of that State. In -so doing, to the 
 author's mind, the court exceeded its proper powers. Had there 
 been involved the exercise of a right, or the recognition of a privi- 
 lege or immunity attached by the federal Constitution or laws 
 to federal citizenship, there can be no question but that the state 
 
 "Nov. Slut.. Eh*. 2K.S: ;m,l A.-t June 29, 1906. C/. Boyd v. Nebraska, 143 
 U. S. 135; 12 Sup. Ot. Rep. 375; 36 L. ed. 103. 
 
 ic Act March 3, 1863. 
 
 "Hepburn v. Ellzoy. 2 Cr. 44:> : 2 L. ed. 332: Reilly v. Lamar, 2 Cr. 344; 
 2 L. ed. 300; Barney v. Baltimore City, Wall. 2Sii : 18 L. ed. 825: New 
 Orleans v. Winter, 1 Wh. 91; 4 L. ed. 44; American Insurance Co. v. Canter, 
 1 Pet. 511; 7 L. ed. 242. 
 
 is 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103. 
 
 18
 
 274 UNITED STATES CONSTITUTIONAL, LAW. 
 
 tribunals should not have been given final authority to determine 
 as to the existence of this federal citizenship, any more than they 
 are permitted in the case of a state law alleged to impair the 
 obligation of a contract to determine whether a contract exists 
 to be impaired, or, if it exists, whether it has in fact been 
 impaired. But in Boyd v. Xebraska the real question was as to 
 the existence of a qualification for a state office the qualifica- 
 tions for which, it was undisputed, the Sjtate might determine as 
 it should see fit. The reasoning of Justice Field in his dissenting 
 opinion upon this point seems incontrovertible. 19 
 
 132. Wong Kim Ark Case. 
 
 In the case of United States v. Wong Kim Ark, 20 decided in 
 1898, the Supreme Court was called upon to determine whether, 
 under the terms of the Fourteenth Amendment, persons born in 
 the United States of alien parents,, are citizens of the United 
 >tates. In this case the question was as to the citizenship of a 
 child of Chinese parents who not only were not citizens of the 
 United States, but could not, under the existing laws, become 
 such by naturalization. In sustaining Ark's citizenship the court 
 held that the clause of the Amendment declaring that " all per^ 
 sons born or naturalized in the United States, and subject to the 
 jurisdiction thereof, are citizens of the United States," is but 
 declaratory of the common law principle unreservedly accepted 
 in England since Calvin's case (the case of Postnati, decided in 
 1608) and in the United States since the Declaration of Inde- 
 pendence, that all persons, irrespective of the natjpna.1ity nf thpir 
 parents born within the territorial limits of a ^tate, are ipso 
 facto, citizens of that State. The court admitted that the prin- 
 ciple of the Roman law according to which the citizenship of the 
 child follows that of the parent, irrespective of the place of birth, 
 had been accepted by certain of the European nations, but denied 
 that this principle had become a true and universal rule of inter- 
 
 J9 See ante, 83. 
 
 20 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.
 
 AMERICAN CITIZENSHIP. 275 
 
 national law, or if it had, that it had thereby superseded the 
 rule of the common law. 21 
 
 The opinion declares: "The first section of the Fourteenth 
 Amendment of the Constitution begins with the words, 'All per- 
 sons born or naturalized in the United States, and subject to the 
 jurisdiction thereof, are citizens of the United .States and of the 
 State wherein they reside.' As appears upon the face of the 
 Amendment, as well as from the history of the times, this was 
 not intended to impose any new restrictions upon citizenship, or 
 to prevent any persons from becoming citizens by the fact of 
 birth within the United States, who would thereby have become 
 
 21 The court say: "At the time of the passage of that act, although the 
 tendency on the continent of Europe was to make parentage rather than birth- 
 place, the criterion of nationality, and citizenship was denied to the native- 
 born children of foreign parents in Germany, Switzerland, Sweden, and Nor- 
 way, yet it appears still to have been conferred upon such children in Holland, 
 Denmark, and Portugal, and, when claimed under certain specified conditions, 
 in France, Belgium, Spain, Italy, Greece, and Russia. Cockburn, Nationality, 
 14-21. There is, therefore, little ground for the theory that, at the time of 
 the adoption of the Fourteenth Amendment of the Constitution of the United 
 States, there was any settled and definite rule of international law, generally 
 recognized by civilized nations, inconsistent with the ancient rule of citizen- 
 ship by birth within the dominion. Nor can it be doubted that it is the 
 ii'herent right of every independent nation to determine for itself, and accord- 
 ing to its own Constitution and laws, what classes of persons shall be entitled 
 to its citizenship. Both in England and in the United States, indeed, statutes 
 have been passed at various times enacting that certain issue born abroad of 
 English subjects, or of American citizens, respectively, should inherit, to some 
 extent at least, the rights of their parents. But those statutes applied only 
 to cases coming within their purport; and they have never been considered, in 
 either country, as affecting the citizenship of persons born within its dominion. 
 ... So far as we are informed, there is no authority, legislative, executive, 
 or judicial, in England or America which maintains or intimates that the 
 statutes (whelher considered as declaratory, or as merely prospective), con- 
 ferring citizenship on foreign-born children of citizens, have superseded or 
 restricted, in any respect, the established rule of citizenship by birth within 
 the dominion. Even those authorities in this country which have gone the 
 farthest toward holding such statutes to be declaratory of the common law, 
 have distinctly recognized and emphatically asserted the citizenship of native- 
 born children of foreign parents. 2 Kent. Com. 39, 50, 53, 258, note; Lynch 
 v. Clarke i 1 Sandf. Ch. 583, 649) ; Ludlam v. Ludlam (26 N. Y. 356) [84 Am. 
 Dec. 193]."
 
 276 UNITED STATES CONSTITUTIONAL LAW. 
 
 citizens according to the law existing before its adoption.' 2 It is 
 declaratory in form, and enabling and extending in effect Its 
 main purpose doubtless was, as lias been often recognized by this 
 court, to establish the citizenship of free negroes, which had 
 been denied in the opinion delivered by Chief Justice Taney in 
 Dred Soott v. Sandford, 1857, 23 and to put it beyond doubt that 
 all blacks, as well as whites, born or naturalized within the juris- 
 diction of the United .States, are .citizens of the United States.' 4 
 But the opening words, 'All persons born,' are general, not to 
 say universal, restricted only by place and jurisdiction, and not 
 by color or race as was clearly recognized in all the opinions 
 delivered in the Slaughter House Cases above cited." 
 
 Regarding the phrase of the Fourteenth Amendment " subject 
 to the jurisdiction thereof," the court say: " The real object of 
 the Fourteenth Amendment of the Constitution in qualifying the 
 words, '.all persons Lorn in the United States, by the addition, 
 
 1 and subject to the jurisdiction thereof,' would appear to have 
 been to exclude, by the fewest and fittest words (besides children 
 of members of the Indian tribes, standing in peculiar relation to 
 the National Government, unknown to the common law ) , the two 
 classes of cases children born of alien enemies in hostile occu- 
 pation, and children of diplomatic representatives of a foreign 
 State both of which, as has already been shown by the law of 
 England, and by our own law, from the time of the first settle- 
 ment of the English colonies in America, had been recognized 
 exceptions to the fundamental rule of citizenship by birth within 
 the country." 25 
 
 22 For comments on the " history of the times," and the debates in Congress 
 as showing the intended meaning of the citizenship clause of the Amendment, 
 see pages 697-699 of the opinion in the Wong Kim Ark Case. See also Van 
 Djne, Citizenship of the United States, chapter I. 
 
 23 19 How. 303; 15 L. ed. 691. 
 
 * Citing The Slaughter House Cases, 1G Wall. 36; 21 L. ed. 394; Strauder 
 v. West Virginia, 100 U. S. 303; 25 L. ed. 664; Ex parte Virginia. 100 U. S. 
 339; 25 L. ed. 676; Xeal v. Delaware, 103 U. S. 370: 26 L. ed. 567; Elk v. 
 Wilkins, 112 U. S. 94: 5 Sup. Ct. Rep. 41; 28 L. ed. 643. 
 
 25 Citing Calvin's Ca?e. 7 Coke. 118&: Cockburn, Xationrilitt/, 7; Dicey, 
 Confl. Lau-s, 177: Inglis v. Sailor's Snug Harbor, 3 Pet. 99; 7 L. ed. 017; 
 
 2 Kent, Com. 39.
 
 AMERICAN CITIZENSHIP.. 277 
 
 " The power of naturalization, vested in. Congress by the Con- 
 stitution," the opinion continues, " is a power to confer citizeiir 
 ship, not a power to take it away. 'A naturalized citizen,' said 
 Chief Justice Marshall, ' becomes a member of the society, pos- 
 sessing all the rights of a native citizen, and standing, in the view 
 of the Constitution, on the footing of a native. The Constitution 
 does not authorize Congress to enlarge or abridge those rights. 
 The simple power of the national legislature is to prescribe a 
 uniform rule of naturalization, and the exercise of this power 
 exhausts it. so far as respects the individual. The Constitution 
 then takes him up, and, among other rights, extends to him the 
 capacity of suing in the courts of the United States precisely 
 under the same circumstances which a native might sue.' M 
 Congress having no power to abridge the rights conferred 
 by the Constitution upon those who have become naturalized 
 citizens by virtue of acts of Congress, a fortiori, no act or 
 omission of Congress, as to the providing for the naturaliza- 
 tion of parents or children of a particular race, can affect 
 citizenship acquired as a birthright, by virtue of the Constitu- 
 tion itself, without any aid of legislation. The Fourteenth 
 Amendment, while it leaves the power where it waa before, in 
 Congress, to regulate naturalization, has conferred no authority 
 upon Congress to restrict the effect of birth, declared by the Con.- 
 stitutiun to constitute a sutrieient and complete right to citizen- 
 ship. Xo one doubts that the Amendment, as soon as it was 
 promulgated, applied to persons of African descent born in the 
 United States, wherever the birthplace of their parents might 
 have been; and yet, for two year< afterward, there was no statute 
 authorizing persons of that race to be naturalized. If the omission 
 or the refusal of Congress to permit certain classes of persons to 
 be made citizens by naturalization could be allowed the effect of 
 correspondingly restricting the classes of persons who should 
 become citizens by birth, it would be in the power of Congress, 
 at any time, by striking negroes out of the naturalization Iffws, 
 and limiting tho<e law-, a- they were formerly limited, to white 
 
 20aboni v. U. S. Bank, ( J \\lu-at. 7:;>; o L. ,-d. 2U4.
 
 278 UNITED STATES CONSTITUTIONAL LAW. 
 
 persons only, to defeat the main purpose of the constitutional 
 amendment. The fact, therefore, that acts of Congress or treaties 
 have permitted Chinese persons born out of this country to become 
 citizens by naturalization, cannot exclude Chinese persons born 
 in this country from the operation of the broad and clear words 
 of the Constitution, 'All persons born in the United States, and 
 subject to the jurisdiction thereof, are citizens of the United 
 States.' " 
 
 The acceptance of the foregoing doctrine, it was held, does not 
 prevent the United States from providing that children born 
 abroad of American citizens shall be considered citizens of the 
 United States. 27 
 
 27 Chief Justice Fuller rendered in the Wong Kim Ark case a dissenting 
 opinion concurred in by Justice Harlan. These justices took the position that 
 nationality was essentially a political idea and as such the constitutional 
 provisions regarding it were to be interpreted in the light of international 
 rather than English municipal provisions. " Obviously," they said, " where 
 the Constitution deals with common-law rights and uses common -law phrase- 
 ology, its language should be read in the light of the common law; but when 
 the question arises as to what constitutes citizenship of the nation, involving 
 as it does, international relations, and political as distinguished from civil 
 status, international principles must be considered, and unless the municipal 
 law of England appears to have been affirmatively accepted, it cannot be 
 allowed to control in the matter of construction." 
 
 This affirmative acceptance of the English common law upon this subject, 
 these justices are unable to find. Upon the contrary, they find in the executive 
 practice and various legislative acts of the United States Government rejection 
 of important parts of the English doctrine of citizenship. Thus, for example, 
 since the Declaration of Independence, this country has consistently rejected 
 what, until 1870, was the doctrine of inalienable allegiance; that is, the 
 doctrine denying the general right of expatriation. Furthermore, it is asserted 
 in this dissenting opinion, that the act of Congress providing that children 
 born abroad of American parents are American citizens, is an evidence that 
 the common-law doctrine of jus soli, as distinguished from the civil rule of 
 jus sanguinis, was not accepted as the general principle governing natural 
 citizenship. After a review of the treaties of the United States, with China 
 and various acts of Congress and decisions of the courts with reference thereto, 
 Chief Justice Fuller concludes: "Did the Fourteenth Amendment impose the 
 original English common-law rule on this country? Did the Amendment 
 operate to abridge the treaty-making power, or the power to establish an 
 uniform rule of naturalization? I insist that it cannot be maintained that 
 this government is unable through the action of the President, concurred in 
 by the Senate, to make a treaty with a foreign government providing that the
 
 AMERICAN CITIZENSHIP. 279 
 
 subjects of that government, although allowed to enter the United States, shall 
 not be made citizens thereof, and that their children shall not become such 
 citizens by reason of being born/therein. A treaty couched in those precise 
 terms wuuid not be incompatible with the Fourteenth Amendment, unless it 
 be held that that Amendment has abridged the treaty-making power. Nor 
 would a naturalization law excepting persons of a certain race and their 
 children be invalid, unless the Amendment has abridged the power of natural- 
 ization. This cannot apply to our colored fellow citizens, who never were 
 aliens were never beyond the jurisdiction of the United States. ' Born in 
 the United States, and subject to the jurisdiction thereof,' and ' naturalized in 
 the United States, and subject to the jurisdiction thereof,' mean born or 
 naturalized under such circumstances as to be completely subject to that 
 jurisdiction, that is, as completely as citizens of the United States, who are 
 of course not subject to any foreign power, and can of right claim the 
 exercise of the power of the United States on their behalf wherever they may 
 be. When, then, children are born in the United States to th| subjects of a 
 foreign power, with which it is agreed by treaty that they shall not be 
 naturalized thereby, and as to whom our own law forbids them to be natural- 
 ized such children are not born so subject to the jurisdiction as to become 
 citizens, and entitled on that ground to the interposition of our government, 
 if they happen to be found in the country of their parents' origin and alle- 
 giance, or any other. ... I think that it follows that the children of 
 Chinese born in this country do not, ipso facto, become citizens of the United 
 States unless the Fourteenth Amendment overrides both treaty and statute. 
 Does it bear that construction ; or, rather, is it not the proper construction 
 that all persons born in the United States of parents permanently residing 
 here and susceptible of becoming citizens, and not prevented therefrom by 
 treaty or statute, are citizens, and not otherwise? But the Chinese under 
 their form of government, the treaties and statutes, cannot become citizens nor 
 acquire a permanent home here, no matter what the length of their stay may 
 be. Wharton, Con/7. Laics, 12. ... It is not to be admitted that the 
 children of persons so situated become citizens by the accident of birth. On 
 the contrary, I am of opinion that the President and the Senate by treaty, and 
 the Congress by naturalization, have the power, notwithstanding the Four- 
 teenth Amendment, to prescribe that all persons of a particular race, or their 
 children, cannot become citizens, and that it results that the consent to allow 
 such persons to come into and reside within our geographical limits does not 
 cairy with it the imposition of citizenship by birth on children born in the 
 I "nited States of parents permanently located therein, and who might themselves 
 become citizens; nor, on the other hand, does it arbitrarily make citizens of 
 children born in the United States of parents who, according to the will of 
 their native government and of this government, are and must remain aliens."
 
 CHAPTER XVIII. 
 
 NATURALIZATION. 
 133. Naturalization by Statute. 
 
 Each country determines, by its own municipal law, the per- 
 sons to be admitted to its citizenship. 
 
 Since the adoption of the Constitution it has been recognized 
 that citizenship of the United States may be obtained in two ways 
 by birth within the country, and by naturalization. As has 
 been already* learned, up to the time of the Dred Scott decision 
 there was doubt whether birth within the United States or natural- 
 ization by the General Government was sufficient to endow one 
 with either federal or state citizenship. By that decision this 
 doubt was resolved in. the negative, it being held that no one by 
 mere birth became a citizen of the United States, and that one 
 could become a federal citizen only by becoming first a citizen of 
 a State, though it was also held, it will be remembered, that a State 
 could not, by making an African negro one of its own citizens, 
 thereby endow him with the general constitutional privileges of 
 federal citizenship. By the Fourteenth Amendment, however, it 
 was- declared that national citizenship is no longer dependent upon 
 state citizenship, and that mere birth within the United States, 
 even though of alien parents, or naturalization by federal law, is 
 sufficient to create national citizenship ; and that residence in a 
 State is sufficient to render such a one a citizen of that State. 
 
 We thus see that the power given to Congress by Article I, Sec- 
 tion VIII, Clause 4, of the Constitution " to establish an uniform 
 rule of naturalization " is- not to be construed, as was once alleged, 
 as simply a power to remove the disabilities of foreign birth, leav- 
 ing it to the States to determine whether or not, when such dis- 
 abilities are removed, the individual shall become a citizen of the 
 State where he resides, and thereby a citizen of the United States 
 in the full constitutional sense of the term; but that it is a full 
 complete power on the part of Congress to provide for the creation 
 
 [280]
 
 XATL-RALIZATIOX. 281 
 
 of federal citizens by the naturalization of persons of foreign 
 birth. With the exception of a few early cases 1 there has never 
 been any question but that the power of naturalization, whatever 
 its scope, is vested exclusively in Congress. The cases holding 
 this from the time of Chirac v. Chirac 2 to United States v. Wong 
 Kim Ark 3 are too numerous to cite. 4 
 
 It lies within the legislative discretion of Congress to determine 
 the mode of naturalization, the conditions upon which it will be 
 granted, and the persons and classes of persons to whom the right 
 will be extended ; but, as was said in the Wong Kim Ark case, not 
 to limit the civil and political rights of naturalized citizens be- 
 yond the limits provided for in the Constitution. 
 
 Except as limited by the Constitution it is within the power 
 of Congress to determine the civil and political rights which 
 naturalized citizens shall enjoy, and to make these rights less than 
 tlmse possessed by native-born subjects. The due process of law 
 clause of the Fifth Amendment, however, would prevent any very 
 great discrimination as to civil rights, and this limitation is rein- 
 forced by the obligations of international comity. The Constitu- 
 tion itself provides that only a native-born citizen shall be 
 eligible to the Presidency, 5 or to the Vice-Presidency. l! 
 
 In the United States the granting of naturalization is held to 
 be a judicial act.' 
 
 1 See especially Collet v. Collet, 2 Ball. 294; 1 L. ed. 387. 
 
 2 2 Wh. 259 ; 4 L. ed. 234. 
 
 3 109 V. S. c,49; 18 Sup. Ct. Rep. 450; 42 L. ed. 890. 
 
 * For an excellent statement of the exclusiveness of the federal power, see 
 Taney's opinion in Scott v. Sandford. 19 How. 393; 15 L. ed. 691. 
 
 5 Art. II, Sec. 1, Cl. 5. 
 
 6 Twelfth Amendment. 
 
 -Spratt v. Sprutt, 4 Tot. 393; 7 L. ed. 897. Until 1S70 naturalization in 
 
 England was by special act of Parliament. Naturalization papers are now 
 
 granted by the Home Secretary. India and many of the other British 
 
 colonies have laws of their own fixing the terms on which they will grant 
 
 their own special citizenship to aliens a citizenship which, of course, does 
 
 not carry with it a general English citizenship. This practice is anomalous 
 
 i in that it makes the one so naturalized swear fealty to the English King and 
 
 5 repudiate all foreign allegiance, and yet dees not make him an English citizen 
 
 except for the particular colony. Thus the British Naturalization Act of 1870 
 
 (Section 16) provides: "All laws, statutes, and ordinances which may be
 
 282 UNITED STATES CONSTITUTIONAL LAW. 
 
 Congress by statute determines the courts which shall exercise 
 the right to naturalize, and to such courts the function is ex- 
 clusively confined. Congress may authorize, and for many years, 
 has authorized, state courts to entertain naturalization proceed- 
 ings, but there is, of course, no power on the part of the Federal 
 Government to compel the exercise by such state courts of the 
 power so granted. 8 
 
 duly made by the legislature of any British possession for imparting to any 
 person the privileges, or any of the privileges of naturalization, to be enjoyed 
 by such person within the limits of such possession, shall, within such limits, 
 have the authority of law." In an interesting note in the Juridical Kcricw 
 (XIV, 299) entitled "Naturalization in the Colonies," the question is raised 
 as to the status in foreign countries of a person who has been granted all 
 the rights of British citizenship within a particular colony, and has sworn 
 fealty to the British King and has foresworn all other allegiance: whether, 
 for example, such a one while in France plotting against the English King 
 would be guilty of treason, or what degree of British protection such a 
 naturalized colonial would be entitled to in other than British territory. The 
 author inclines to the belief that such a one would not, in the case supposed, 
 be guilty of treason, also that a naturalized colonial would not be entitled to 
 British protection while abroad. 
 
 In the report of the Inter-Departmental Committee on the Naturalization 
 Law, presented to the Houses of Parliament July 24, 1901, it was recom- 
 mended that "provision should be made by legislation enabling a Secretary 
 of State, or the Governor of a British possession, to confer the status of a 
 British subject upon persons who fulfil the requisite conditions in any part of 
 the British Dominions, and that the status so conferred should be recognized 
 by British law everywhere within and without His Majesty's dominions. This 
 provision should be without prejudice to the power of the legislature of any 
 British possession to provide for the conferring upon any persons under such 
 conditions as it might see fit, the whole or any of the rights of British sub- 
 jects within its own territory." 
 
 8 The question as to the power of the federal courts to set aside, upon the 
 ground of fraud, a decree of naturalization granted by a state court, or to 
 annul it by an injunction prohibiting giving effect to it, seems in doubt, 
 as appears from some decisions rendered prior to the Act of 1906 below 
 quoted: United States v. Norsch, 42 Fed. Rep. 417; United States v. Gleason, 
 78 Fed. Kep. 396. Cf. article by Judge Henry Stockbridge, " the Law of 
 Naturalization," in the Green Bag, XVII, 644. The Act of June 29, 1906, 
 Section 15, provides that " it shall be the duty of the United States district 
 attorneys for the respective districts, upon affidavit showing good cause 
 therefor, to institute proceedings in any court having jurisdiction to natural- 
 ize aliens in the judicial district in which the naturalized citizen may reside 
 at the time of bringing the suit, for the purpose of setting aside and cancel-
 
 NATURALIZATION. 283 
 
 It has been held that naturalization has a retroactive effect to 
 the extent of removing liability to forfeiture of lands held dur- 
 ing alienage. 9 
 
 The naturalization of a father operates as a naturalization of 
 his minor children if they are dwelling within the United States. 10 
 This same case holds that a declaration of a father of an 
 intention to become naturalized gives to his children who 
 attain their majority, before their father's naturalization is 
 completed, an inchoate citizenship which, upon majority may 
 be repudiated. " Clearly," say the court, " minors acquire 
 an inchoate status by the declaration of intention on the 
 part of their parents. If they attain their majority before the 
 parent completes his naturalization, then they have an election to 
 repudiate the status which they find impressed upon them, and 
 determine that they will accept allegiance to some foreign poten- 
 tate or power rather than hold fast to the citizenship which the 
 
 ing the certificate of citizenship on the ground of fraud or on the ground 
 that such certificate of citizenship was illegally procured. Whenever any 
 certificate of citizenship shall be set aside or cancelled, as herein provided 
 the Court in which such judgment or decree is rendered shall make an 
 order cancelling such certificate of citizenship and shall send a certified coy 
 of such order to the Bureau of Immigration and Naturalization; and in 
 case such certificate was not originally issued by the Court making such 
 order it shall direct the clerk of the court to transmit a copy of such order 
 and judgment to the court out of which such certificate of citizenship shall 
 have been originally issued. And it shall thereupon be the duty of the clerk 
 of the court receiving such certified copy of the order and judgment of the 
 Court to enter the same of record and to cancel such original certificate 
 of citizenship upon the records and to notify the Bureau of Immigration 
 and .Naturalization of such cancellation." This provision has been held con- 
 stitutional in United States v. Simon, 170 Fed. 680. This section further 
 provides that: "If any alien who shall have secured a certificate of citi- 
 zenship under the provisions of this act shall, within five years after the 
 issuance of such certificate, return to the country of his nativity, or go to any 
 other foreign country and take permanent residence therein, it shall be con- 
 sidered a prima facie evidence of a lack of intention on the part of such 
 alien to become a permanent citizen of the United States at the time of filing 
 his application for citizenship, and, in the absence of countervailing evidence, 
 it shall be sufficient in the proper proceedings to authorize the cancellation 
 of his certificate of citizenship as fraudulent." 
 
 9 Manuel v. Wulff, 152 U. S. 505; 14 Sup. Ct. Rep. 651; 38 L. ed. 532; 
 Governor's Heirs v. Robertson. 11 Wh. 332; 6 L. ed. 488. 
 
 lOBoyd v. Nebraska, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103.
 
 284 UNITED STATES CONSTITUTIOXAL LAW. 
 
 act of the parent lias initiated for them. Ordinarily this is de- 
 termined by application on their own behalf, but it does not fol- 
 low that an actual equivalent may not be accepted in lieu, of a 
 technical compliance." 
 
 134. Naturalization by Annexation of Territory and by 
 Treaty. 
 
 Where territories are annexed either by treaty or by conquest, 
 the status of their inhabitants is determined at the will of the 
 annexing States. In all cases, however, in the absence of any 
 treaty stipulations to the contrary, the annexation of a territory 
 transfers to the annexing State the allegiance of its inhabitants, 
 and makes them, from the viewpoint of other nations, the citi- 
 zens of that State. Whether or not, however, they become. its 
 citizens in the stricter constitutional sense depends upon the mu- 
 nicipal will of that country. This branch of the subject will be 
 treated in, the chapter dealing with " Citizenship in the Terri- 
 tories and Dependencies." 
 
 Besides naturalization by general acts, by treaty, and by con- 
 gest, there have been many instances in the United States of 
 naturalization of specific individuals or groups of individuals by 
 special acts of Congress. 11 
 
 By statute it is provided that " all children heretofore born out 
 of the limits and jurisdiction of the United States, whose fathers 
 were or may be at the time of their birth citizens thereof, are de- 
 clared to be citizens of the United States ; but the rights of citizen- 
 ship shall not descend to children whose fathers never resided in 
 the United States. 12 
 
 The application of this principle to persons born in countries 
 which, like the United States, claim as their own citizens all per- 
 sons born within their limits, is to create a double citizenship. 
 This is true, especially, of course, with reference to England. 
 
 11 Cf. Van Dyne, Citizenship of the United States, Chapter VI. See the 
 same work, chapter VI, for questions of citizenship connected with the admis- 
 sion of Territories as States. 
 
 " Rev. Stat., 1993.
 
 NATURALIZATION. 286 
 
 Most European countries apply the doctrine of jus sanguinis 
 in fixing citizenship. That is, they treat as their own citizens 
 persons wherever born, whose parents are their citizens. In some 
 cases also, they apply the jus soli as well, claiming as their own 
 citizens persons born upon their soil of alien parents. This, for 
 example, is the practice of France. Many States permit after 
 majority an election to one born in one country of jDarents who are 
 citizens of another ; for example, France, Spain, Belgium, Greece, 
 Bolivia, Italy, Portugal, Mexico, and Great Britain. The British 
 Act of 1870 declares that " any person who is born out of Her 
 Majesty's dominions, of a father being a British subject, may, if 
 of full age, and not under any disability, make a declaration of 
 alienage, . . . "and, from and after the making of such decla- 
 ration, shall cease to be a British subject." In default of such 
 declaration he remains, by birth, a British subject. 
 
 Double citizenship is also created, as we shall see in those cases 
 in which one country naturalizes the citizens of another country 
 which does not admit the right of the individual to expatriate 
 himself without the consent of the State of his natural allegiance. 
 
 The difficulties and conflicting claims arising out of these cases 
 of double allegiance have been numerous, and have usually l>een 
 settled, each case upon its own merits, by way of compromise and 
 upon doctrines of comity, rather than by the establishment of any 
 very general principles. Thus it has been held upon numerous 
 occasions by the executive branch of our government thatr our law 
 cannot operate to relieve such persons from their allegiance to 
 the countries in which they are born so long as they remain in 
 such countries. It has also been generally held that where a 
 naturalized American citizen returns to his native country, he may 
 be held bound by such obligations, as, for example, the rendition of 
 military service, as may have been due by him at the time of his 
 departure from his native country. 13 
 
 " Cf. W. S. Tingle, Germany's Claims Upon German Americans in Germany, 
 Philadelphia, 1903.
 
 CHAPTER XIX. 
 
 EXPATRIATION.! 
 
 135. Denial of Right of Expatriation. 
 
 Until comparatively recent times, except in the United States, 
 the right of a citizen to cast off his natural allegiance, the 
 allegiance into which he is born, was generally denied by the 
 States of the world. 
 
 This denial was made, but not always enforced in practice, 
 in England down to the time of her Naturalization Act of 1870. 
 Blackstone in his Commentaries declared : u It is a principle of 
 universal law that the natural-born subject of one prince cannot, 
 by any act of his own, no, not by swearing allegiance to another, 
 put off or discharge his natural allegiance to the former ; for this 
 natural allegiance is intrinsic, and primitive, and antecedent to 
 the other, and cannot be divested without the concurrent act of 
 that prince to whom it was first due. Indeed, the natural-born 
 subject of one prince, to whom he owes allegiance, may be en- 
 tangled by subjecting himself absolutely to another ; but it is his 
 own act that brings him into these straits and difficulties, of owing 
 service to two masters ; and it is unreasonable that, by such volun- 
 tary act of his own, he should be able at pleasure to unloose those 
 bands by which he is connected to his natural prince." 
 
 The statute 3 Jac. 1, chap. 4, provided that promising obedience 
 to any other prince, State, or potentate, subjected the person so 
 doing to be adjudged a traitor, and to suffer the penalty of high 
 treason. 
 
 In respect to the naturalization law of the United States, passed 
 in 1795, Lord Grenville wrote to our minister, Rufus King: " Xo 
 British subject can, by such a form of renunciation as that'which 
 
 i In addition to the general authorities on citizenship, see chapter VII of 
 Moore's American Diplomacy, and the address of Hon. Oscar S. Straus en- 
 titled " The United States Doctrine of Citizenship and Expatriation " before 
 the American Social Science Association. 1901. 
 
 [286]
 
 EXPATRIATION. 287 
 
 is prescribed in the American law of naturalization, divest himself 
 of his allegiance to his sovereign. Such a declaration of renuncia- 
 tion made by any of the King's subjects would, instead of operat- 
 ing as a protection to them, be considered an act highly criminal 
 on their part. 2 
 
 The assertion by England of this principle with reference to her 
 subjects who had become naturalized American citizens was one 
 of the causes of the War of 1812. 3 
 
 In a proclamation issued in 1807, the King declared: "Now 
 we do hereby warn all mariners, seafaring men, and others our 
 natural-born subjects, that no such letters of naturalization or 
 certificates of citizenship do or can in any manner divest our 
 natural-born subjects of the allegiance or in any degree alter the 
 duty which they owe to us, their lawful sovereign." 
 
 In the treaty of Ghent which marked the conclusion of this 
 war no mention, one way or the other, was made of this English 
 doctrine; but in future England ceased to enforce her claims in 
 an arbitrary manner against English born, but American natural- 
 ized, citizens. 
 
 By the act of 1870 England definitely abandoned the doctrine, 
 l!y that statute it is recognized that by voluntarily assuming 
 citizenship in another State, British citizenship is lost, though 
 such change of allegiance is not to operate to discharge the ex- 
 patriated one from liability for acts or defaults committed prior 
 
 22 Am. State Tap., p. 149; Fitch v. Weber, 6 Hare, p. 51. 
 
 3 Moore (Op. Cit., p. 173) calls attention to the fact that the dispute over 
 impressment as a whole did not involve the crucial point of the later con- 
 troversies as to expatriation. " The burden of the complaint in regard to 
 impressment," writes Moore, "as defined in Madison's war message of June 
 1. 1812, was that Great Britain sought, under cover of belligerent right, to 
 execute her municipal law of allegiance on board the ships of other countries 
 on the high seas, where no laws could operate ' but the laws of the country to 
 \\hhh the vi -sols belong.' Precisely the same position was maintained by 
 Webster in his correspondence with Lord Ashburton in 1842. Ships on the 
 high seas are treated, for purposes of jurisdiction, as if they were part of 
 the territory of the nation to which they belong. The complaint that the 
 British Government enforced the. English law of allegiance on board of 
 American vessels on the high seas was manifestly a different theory from 
 objecting to her enforcement of the same law within British jurisdiction."
 
 288 UNITED STATES CONSTITUTIONAL LAW. 
 
 to expatriation. The act also provides for tlie naturalization of 
 resident aliens of countries whose laws or treaties permit expatria- 
 tion, and declares such naturalized citizens entitled to the protec- 
 tion of Great Britain everywhere except in the respective countries 
 of 'their original allegiance. 
 
 By a number of foreign States, among them Turkey and 
 Russia, the doctrine of inalienable allegiance is still asserted. In 
 many others it is partially upheld. With most of these countries 
 the United States has entered into special treaties governing the 
 subject of naturalization. 4 
 
 136. Right Recognized by United States. 
 
 Since 1868 the right of expatriation has been uniformly asserted 
 by all the departments of the United States Government. Prior to 
 that time, the executive, judicial, and legislative branches were 
 not always in harmony upon this point During the early years, 
 the executive branch of the government, while asserting the right 
 of aliens to become naturalized citizens of the United States, did 
 not affirm that this change in political status should be recognized 
 by the States of their respective original allegiance. Mr. Jeffer- 
 son as Secretary of State in 1793 wrote: " Our citizens are cer- 
 tainly free to divest themselves of that character by emigrating, 
 and other acts manifesting their intention, and may then become 
 the subjects of another power, and free to do whatever the sub- 
 jects of that power may do." 5 A little later, Marshall, as Secretary 
 of State, while affirming the right of an alien without the consent 
 of his native State to seek naturalization, observed that other 
 States should recognize such naturalization " unless it be one 
 which may have a conflicting title to the person adopted." At 
 various times the Executive Department of the United States Gov- 
 ernment asserted that a naturalized American citizen was entitled. 
 
 * For the various attitudes of, and treaty relations with, foreign States, 
 see Moore, Digest of International Laic, Vol. Ill; Van Dyne, Citizenship, 
 Pt. IV, Chap. II; The American Passport, pp. 127 et seq.; and Report on 
 Citizenship of the United States, Expatriation, and Protection Abroad, 59th 
 Cong., 2d Sess., Doc. 324. 
 
 6 Jefferson's Works (Washington ed.), IV, 37.
 
 KXPATRIATIOX. 
 
 while abroad, to the same protection at the hands of the American 
 Government as that to which a native-born citizen was entitled. 
 Mr. Buchanan was, however, the first Secretary of State to declare 
 in unqualified terms that the naturalized American citizen was en- 
 titled to the full protection of the American Government while 
 abroad, and even in the State of his original allegiance, whatever 
 might be the doctrines and laws of that country with reference to 
 expatriation. 6 
 
 Later Secretaries of State did not continue to state the Ameri- 
 can doctrine as absolutely as had Buchanan. Since 1808, how- 
 ever, an express legislative declaration has prevented the Executive 
 Department from qualifying the doctrine in words, but in fact, it 
 has not been rigorously applied in cases where neither justice nor 
 expediency has demanded it. 
 
 Since the lirst years of the Constitution the legislation of Con- 
 gress upon the subject of naturalization lias implied the right of 
 expatriation. By the act of 1868 which is still in force, the right 
 of expatriation was explicitly declared in the most unqualified 
 manner. " Whereas," the act reads, " the right of expatriation 
 is a natural and inherent right of all people, indispensable to the 
 enjoyment of the rights of life, liberty, and the pursuit of happi- 
 ness ; and whereas, in the recognition of this principle the govern- 
 ment has freely received emigrants from all nations, and invested 
 tl*em with the rights of citizenship ; and whereas, it is claimed that 
 
 6 .Moore (.-l/i. Dip., p. 174) writes: "A comprehensive examination of our 
 unpublished diplomatic records enables me to say that the first Secretary of 
 State to announce the doctrine of expatriation in its fullest extent the 
 doctrine that naturalization in the United States not only clothes the indi- 
 vidual with a new allegiance but also absolves him from the obligations to 
 the old was James Buchanan." 
 
 In 1843, writing to the American minister in London, Buchanan said: 
 " We can recognize no difference between the one and the other, nor can we 
 permit this to be done without protesting and remonstrating against it in tin- 
 strongest terms. The subjects of other countries who from choice have 
 abandoned their native land, and, accepting the invitation which our laws 
 present, have emigrated to the United States and become American citizens, 
 are entitled to the very same rights and privileges as if they had. been born 
 in the country. To treat them in a different manner would be a violation of 
 our plighted faith as well as our solemn duty." 
 
 19
 
 290 UNITED STATES CONSTITUTIONAL LAW. 
 
 such American citizens, with their descendants, are subjects of 
 foreign States, owing allegiance to the governments thereof; and 
 whereas, it is necessary to the maintenance of public peace that 
 this claim of foreign allegiance should be promptly and finally dis- 
 allowed : Therefore any declaration, instruction, opinion, order, ' 
 or decision of any officer of the United States which denies, re- 
 stricts, impairs, or questions the right of expatriation, is declared 
 inconsistent with the fundamental principles of the Republic. All 
 naturalized citizens of the United States, while in foreign 
 countries, are entitled to and shall receive from this government 
 the same protection of persons and property which is accorded to 
 native-born citizens. 7 
 
 The enforcement, or rather the attempted enforcement, of this 
 legislative declaration has led the diplomatic branch of our gov- 
 ernment into many difficulties. With reference to a considerable 
 number of countries these difficulties have in a great measure been 
 obviated by the negotiation with them of naturalization treaties. 
 
 Judicial decisions in the United States as to the existence of 
 a right of expatriation in the absence of statutes creating it have 
 not been uniform. In Talbot v. Janson, 8 decided in 1795, Justice 
 Iredell denied that the individual had a right of expatriation at 
 will. So also in Murray v. The Charming Betsey, 9 The Santissima 
 Trinidad; 10 Inglis v. Sailor's Snug Harbor, 11 Shanks v. Du- 
 pont, 12 the court, while not in each instance passing directly upon 
 the point, showed an inclination to accept the common-law princi- 
 ple which denied the existence of an individual right of expatria- 
 tion. This same ground was taken by Chancellor Kent in his 
 Commentaries. In M'llvaine v. Coxe, 14 however, it was held 
 that persons born in the colonies and remaining in the country 
 and giving their allegiance to the new governments after the 
 
 7 Rev. Stat., 1999, 2000. 
 
 83 Ball. 133; 1 L. ed. 540. 
 
 92 Cr. 64; 2 L. ed. 208. 
 
 107 Wh. 283; 5 L. ed. 454. 
 
 "3 Pet. 99; 7 L. ed. 617. 
 
 12 3 Pet. 242 ; 7 L. ed. 666. 
 
 Lecture XXV. 
 
 " 2 Cr. 280; 2 L. ed. 279; 4 Cr. 209; 2 L. ed. 598.
 
 EXPATRIATION. :>'.L 
 
 Declaration of Independence were released from their British 
 allegiance and came under the protection of and bound in alle- 
 giance to the newly established American governments. Since 
 1808 the courts have not questioned the right of the citizen volun- 
 tarily to expatriate himself and become a citizen of another 
 country. 15 
 
 15 See Moore, Digest of International Law, III, 433, and authorities there 
 cited. See also article by Slaymaker entitled " The Right of the American 
 Citizen to Expatriate" in The American Law Revieic, XXXVII, 191. 
 
 The following convenient summary of the attitudes of various foreign 
 governments with reference to the subject of expatriation is given in the 
 Report of the Citizenship Commission. (H. R. Doc. 326, 59th Cong., 2d 
 Sess., p. 12.) 
 
 "A. The right of voluntary expatriation is wholly denied. A subject has no 
 right to leave the territory of his origin without the express permission of 
 his sovereign; he may not renounce his original allegiance or assume another, 
 and upon his return to the jurisdiction of his origin he is liable to arrest and 
 punishment. (For example, this is the attitude of Russia and Turkey.) 
 
 B. The right of expatriation is admitted, provided there exists at the time 
 no unperformed obligation to military service ; but, in case this obligation 
 exists, naturalization in a foreign country obtained before it is discharged is 
 considered as void. (For example, this is the attitude of France.) 
 
 C. The right of expatriation is admitted, but naturalization in a foreign 
 country does not become valid from the point of view of the country of origin 
 without an express and formal renunciation of the original citizenship made 
 in the country of origin and in accordance with its forms of law. (For 
 example, this is the attitude of Switzerland.) 
 
 D. The right of expatriation is admitted, but, while naturalization abroad 
 is freely allowed, in case of a return to the country of origin the person thus 
 naturalized is not denied the rights of citizenship in that country, but is 
 permitted without further formality to retain his rights as a citizen as if he 
 had never departed from the country. (For example, this is the attitude of 
 Venezuela. ) 
 
 E. The right of expatriation is admitted, and citizenship absolutely ceases 
 (although it may afterward be legally recovered) at the moment when the 
 act of naturalization in a foreign country is performed. (This is the attitude 
 of the majority of foreign governments.) 
 
 F. The right of expatriation is admitted and is assumed to have been 
 accomplished when a citizen absents himself from the parent country for a 
 prolonged period of years. (For example, this is the attitude of the Nether- 
 lands.)"
 
 CHAPTER XX. 
 
 THE LEGAL STATUS OF INDIANS. 
 
 The question of the legal status of Indians, which for many 
 years, and especially during the last quarter of the nineteenth 
 century, decreased in practical importance, has, since the annexa- 
 tion of the Philippine Islands,, gained a new constitutional value 
 for tiie reason that upon the islands there are many tribes which 
 for years to come it may be necessary to govern in ways analogous 
 to, if not identical with, those which, in the past, we have em- 
 ployed in the control of the red men in the United States proper. 
 It" will, therefore, be well to treat this subject rather more par- 
 ticularly than we should otherwise have done. 
 
 Tha legal, relations of the Indians to various governments, estab- 
 lished by their white conquerors, have had reference, broadly 
 speaking: (1) to their rights to the lands occupied by them; and 
 (2) to tlieir political status either as tribes or as individuals. 
 
 ^ TST. Indian Lands. 
 
 With reference to the title possessed by Indians in the lando 
 occupied, or hunted over by them, the principle was from the first 
 applied" by the white settlers that by discovery and occupation the 
 title in fee to all the lands thus taken possession of became vested 
 in the sovereign othe State under whose authority the conquest 
 was made. 1 
 
 This: principle that the original title to all the land within a 
 State is- in the sovereign of that State, and that by grant from 
 him all individual titles are obtained, was the feudal one which 
 
 i In earlier years the attempt was made to establish in international law 
 the principle that mere discovery of unoccupied, land, or land inhabited by 
 uncivilized tribes, is sufficient to give title to the sovereign by whose subjects 
 the discovery was made. This principle, however, never obtained general 
 recognition, and the present doctrine was established that in order to give a 
 national title which other States are bound to respect, discovery must be 
 followed, within a reasonable time, by effective occupation. 
 
 [292]
 
 TILE LEGAL STATUS OF IXDIAXB. 293 
 
 the crown lawyers of England bad developed ; and, after the sep- 
 aration from that country, the American Commonwealths 'con- 
 tinued to apply the doctrine, substituting, however, df course, the 
 re-pective States for the English Crown. With the formation of 
 the present Union* and the transfer to it by the -several 'States -or* 
 their respective claims to public lands, the United States was sub- 
 stituted as the owner of all lands to which private titles -had not 
 hvn obtained. This grant to the Federal Government carried 'with 
 it whatever interest or title the several "States had 'had in the 
 Indian lands. 
 
 The rirst discus-ion in the Supreme Court of the United "States 
 of the title or interest still retained by the Indians in the lands oc- 
 cupied by them, was in the case of Fletcher v. Peck. 2 This case 
 involved the question whether the State of Georgia had been seized 
 in fee of certain lands which it had sold, but later resumed pos- 
 
 ion of. Marshall in his opinion, without attempting any argu- 
 ment, said : "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 amount "to a de- 
 ci-ion that their grantee might maintain an ejectment *f or them, 
 notwithstanding that title. The majority of the .court is of opinion 
 that the nature of the Indian title, which is certainly to be "re- 
 spected by all courts, until it be legitimately extinguished, is not 
 such as to be absolutely repugnant to seizin in fee on the part of 
 the State," 3 
 
 = r, Cr. 87; 3 L. ed. 162. 
 
 3. Justice Johnson dis-ented from this doctrine, holding that the : fce was in 
 the Indians, and that tin- interest of the United States consisted in a ripht 
 df pre-emption. He said: "What, then, practically, is the interest of the 
 States in the soil of the Indians within their boundaries? Unaffected by 
 particular treaties, it is nothing more than what was assumed at 'the 'first 
 a ttlement of the country, to wit. a rijrht of conquest or of purchase, exelu- 
 .-ivcly of all competitors within certain definite limits. All restrictions upon 
 the rifjht of soil in the Indians amount only to an exclusion of all com- 
 p-titnrs from their markets; and the limitation upon their sovereignty 
 a nu. nuts to the riirlit nf pnverninp every person within their limits except 
 t-icm-vlves. If the interest of Georgia was nothing more than a pre-emptive 
 rijrht, how could that he railed a fee simple, which was nothing more than a 
 power to acquire a fee simple by purchase, when the proprietors should be
 
 294 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Johnson v. M'Intosh 4 the question of titles to Indian lands 
 was thoroughly examined and a conclusion reached which was 
 substantially the same as that boldly stated without argument by 
 Marshall in the Fletcher v. Peck case. In substance it was held 
 that while the fee to Indian lands is in the United States, and, 
 therefore, that the Indians are not able to grant titles to the same 
 which will be recognized in the courts of the United States, never- 
 theless these Indians have certain possessory rights from which 
 they may be dispossessed by the United States only with their con- 
 sent, and upon compensation therefor. 
 
 The doctrines thus laid down in 1823 by Marshall in Johnson 
 v. M'Intosh have never been changed, and the practice of the 
 United States government uniformly throughout its history has 
 been in acordance with it. That is to say, where Indians have 
 been dispossessed of their lands their consent, in form at least, has 
 been obtained, and compensation made either in the form of money 
 or other lands. Where tribal relations have been maintained these 
 possessory rights have been held to be vested in the tribes re- 
 spectively, and not severally in the individual Indians. From 
 time to time, however, as we shall see, the United States Govern- 
 ment has provided for the dividing up of these tribal lands and 
 their apportionment in severalty among the individual Indians. 
 
 138. The Legal Status of Indians. 
 
 From the earliest times the Indians, though treated as subject 
 to the sovereignty first of the foreign colonizing powers, then of 
 the colonies or States, and, finally, of the United States, have been 
 considered not as citizens or subjects, that is, as members of the 
 various bodies politic within whose midst they have lived, but,, 
 from the constitutional viewpoint, as aliens, and their tribes as 
 foreign nations to be dealt with as such, namely, by treaties and 
 
 pleased to sell? And if this was anything more than a mere possibility, it 
 certainly was reduced to that state when the State of Georgia ceded to the 
 United States, by the Constitution, both the power of pre-emption and of 
 conquest, retaining for itself only a resulting right dependent on a purchase 
 or conquest to be made by the United States." 
 48 Wh. 543; 5 L. ed. 081.
 
 THE LEGAL STATUS OF INDIANS. 295 
 
 agreements rather than by statutes. As alien nations, their mem- 
 bers have not, in default of express provisions to the contrary, been 
 held subject to the general laws of the States in which they have 
 resided or to the statutes of the General Government. The rela- 
 tions of Indians to one another have been held to be a matter for 
 the several tribal authorities to regulate, and when these tribal 
 authorities have been impotent, the Indians have lived practically 
 without law. 
 
 At the same time, however, that these Indians have thus en- 
 joyed tribal autonomy, and their relations to the States and the 
 Federal Government regulated by treaties and agreements rather 
 than by statute, and their tribes spoken of as foreign nations, there 
 has never been any question but that, in reality, the sovereignty 
 over them after the Revolution and prior to 1789 was in the in- 
 dividual States, and since that time in the United States. From 
 the point of view of general international relations the Indians 
 have ever been subjects of the American States or the United 
 States, and, consequently, foreign States have never been recog- 
 nized to have a right to deal directly with them. Furthermore, 
 from the point of view of American constitutional law, such at- 
 tributes of independence and sovereignty as they have enjoyed have 
 been derived by concession from the States, or, since 1789, from 
 the Federal Government. Hence these rights have been at all 
 limes subject to withdrawal without the Indians' consent. This 
 was conspicuously shown by the Act of Congress of 1871. This 
 law for the enactment of which the consent of the Indians was 
 neither sought nor obtained declared: " Xo Indian nation or 
 tribe within the territory of the United States shall be acknowl- 
 edged or recognized as an independent nation, tribe or power with 
 whom the United States may contract by treaty." 5 
 
 Since this act of 1871 the legal supremacy of the United States 
 has been further shown by a number of legislative acts, some of 
 them extending the authority of federal laws and the jurisdiction 
 of the federal courts over acts previously subject exclusively to the 
 authority of the tribes; others providing for the apportionment in 
 
 5 Rev. Stat., 2079.
 
 296 UNITED STATES CONSTITUTIONAL LAW. 
 
 severally of the tribal lands and the naturalization of Indians with- 
 out their request or consent. 
 
 From the first settlement of the American colonies the Indians 
 were treated as alien peoples outside of the control of domestic 
 laws. Xo attempt was made to interfere with their domestic affairs 
 or systems of self-government, except to endeavor to keep out the 
 accents of other European powers who might engage them in 
 foreign alliance. When their lands were desired, they were pur- 
 chased and not confiscated. Purchases by individuals, however, 
 were not permitted except with governmental permission. Thus, 
 typical is the proclamation of the King of England in 1763 after 
 the ratification of the Articles of Peace with Prance, in which it 
 was declared: "And we .do further declare it to be our royal will 
 and pleasure, for the present, as aforesaid, to reserve under 
 dominion, for the use of the said Indians, all the lands and terri- 
 tory lying to the westward of the sources of the rivers which fall 
 into the sea, from the west and northwest as aforesaid: and we do 
 hereby strictly forbid, in pain of our displeasure, all our loving 
 subjects from making any purchases or settlements whatever, or 
 taking possession of any of the lands above reserved, without our 
 special leave and license for that purpose first obtained. And we 
 do further strictly enjoin and require all persons whatsoever, who 
 have, either wilfully or inadvertently, seated themselves upon any 
 lands within the countries above described, or upon any other 
 lands which, not having'been ceded to, or purchased by us, are still 
 reserved to the said Indians, as aforesaid, forthwith to remove 
 themselves from such settlements/' 
 
 In July. 1775. the first action looking to a national, that is, 
 inter-colonial management of Indian affairs was taken when the 
 Continental Congress resolved " that the securing and preserving 
 the friendship of Indian nations appears to be a subject of the 
 utmost moment to these colonies," and provided for three Indian 
 departments with commissions in each " to treat with the Indians 
 in their respective departments, in the name and on the behalf of 
 the United Colonies, in order to preserve pence and friendship 
 with the said Indians, and to prevent their taking any part in the 
 present commotions."
 
 THE LDC.AI. STATUS OF IM>IA. B, 297 
 
 In the Declaration of Independence the Indian question figures, 
 it being' charged against the Uriti?h King that he had endeavored 
 " to bring on the inhabitants of our frontiers the merciless Indian 
 savages, whose known rule of warfare is .an undistinguished de- 
 struction of all ages, sexes, and conditions." 
 
 In the Articles of Confederation the Congress of the United 
 States was given u the sole and exclusive right and power . . . 
 of regulating the trade and managing all fcffairs with the Indians, 
 nor members of any of the States; provided that the legislative 
 right of any State within its own .limits be not infringed or 
 violated." 
 
 The phrase '' not members of any of the States," here used, had 
 reference to those Indians who had separated from their tribes and 
 become mixed in the general citizen populations of the several 
 States. It was intended also to except from national control those 
 Indians who, though still in tribes, had become surrounded by the 
 whites. The exception, indeed, from federal control of these 
 ted and surrounded Indian tribes, and their absolute subjec- 
 tion to state authority continued under the Constitution of 1789, 
 and when, in l^t^, a general statute was passed for the govern- 
 ment of the Indians, it was provided that '' nothing in this act 
 shall be construed to prevent any trade or intercourse with Indians 
 living; on lands surrounded by settlements of the citizens of the 
 United States and being within the ordinary jurisdiction of any of 
 the individual States." Thus States like Kew York, Mafifachu- 
 . and Maine were permitted to continue to deal according to 
 th'-ir discretion with Indian tribes within their borders. "As a dry 
 matter of power," observes Thayer, " Congress might at any time 
 have taken control of them [for as we shall see, the 'Constitutiorf 
 gives to the Federal Government full authority over the Indians 
 po long as they remain distinct from the citizen bodies of the -sev- 
 eral State- 1 . Hut while Congn--; \v:i- -faying its hand, it might 
 happen and has happened in Massachusetts, that the tribal rela- 
 tion had been dissolved." c 
 
 6.4 People Wit limit Lair. T\vn articles in the Atlnntin Monthly for October 
 and November, 18!U. The author is much indebted to these articles of this
 
 298 UNITED STATES CONSTITUTIONAL LAW. 
 
 139. Federal Power over Indians. 
 
 The only direct references to the Indians in the present Con- 
 stitution are in the provisions that " Indians not taxed " shall not 
 be counted in determining the number of representatives in Con- 
 gress to which a State is to be entitled, 7 and that Congress shall 
 have power " to regulate commerce . . . with the Indian 
 tribes." 8 
 
 The powers conferred upon the General Government by the 
 Commerce Clause will be discussed in another chapter. It may 
 here be observed, however, that the federal authority over com- 
 merce with the Indians is much broader than that over commerce 
 between the States. As Prentice and Egan observe : " The pur- 
 pose with which this power [commerce with the Indians] was 
 given to Congress was not merely to prevent burdensome, con- 
 flicting or discriminating state legislation, but to prevent fraud 
 and injustice upon the frontier, to protect an uncivilized people 
 from wrongs by unscrupulous whites, and to guard the white popu- 
 lation from the danger of savage outbreaks. A grant made with 
 such a purpose must convey a different power from one whose pur- 
 pose was to insure the freedom of commerce. Congress has, in 
 the case of Indians, prohibited trade in certain articles, it has 
 limited the right to trade to persons licensed under federal laws, 
 and in many ways asserted a greater control than would be possible 
 over other branches of commerce." 
 
 " Commerce with foreign nations and among several States is 
 that commerce which involves transportation across state lines, and 
 is put within federal control to avoid discriminating, conflicting, 
 and burdensome state legislation. Commerce with the Indian 
 tribes frequently involves no such transportation. It may be car- 
 ried on wholly within the limits of a single State. ... In 
 this case . . . the power of Congress is not determined by 
 
 eminent jurist. The reference to Massachusetts has in mind the law of that 
 State enacted in 1869 whereby every Indian in that State was made a citizen 
 of the State. 
 
 7 Art. I, Sec. 3. 
 
 8 Art. I, Sec. 8, Cl. 3. 
 
 9 The Commerce Clause of the Federal Constitution, p. 342.
 
 THE LEGAL STATUS OF INDIANS. 299 
 
 the locality of the traffic, but extends wherever intercourse with 
 Indian tribes, or with any member of an Indian tribe, is found, 
 although it may originate and end within the limits of a single 
 State. The jurisdiction is, therefore, personal rather than eco- 
 nomic in its nature." 10 
 
 In United States v. Holliday 11 the court held that Congress had 
 the power to forbid the sale of liquor to an Indian in charge of an 
 agent, in a State and outside of an Indian reservation. The 
 opinion declared : " The locality of the traffic [with Indians] can 
 have nothing to do with this power. The right to exercise it with 
 reference to any Indian tribe, or any person who is a member of 
 such tribe, is absolute, without reference to the locality of the 
 traffic, or the locality of the tribe, or of the member of the tribe 
 with whom it is carried on." 
 
 And in United States v. 43 Gallons of Whiskey 12 was upheld the 
 power of Congress to exclude spirituous liquors not only from ex- 
 isting Indian country but from that which had ceased to be so by 
 reason of its cession to the United States, but was adjacent to the 
 Indian settlements. The same regulation, the court declared, could 
 be provided by the treaty-making power. 
 
 It has been held by the Supreme Court that the General Gov- 
 ernment has an authority over the Indians not springing from 
 these specific grants of power, but from the practical necessity of 
 protecting the Indians and the non-existence of a power to do so 
 in the States. Thus in United States v. Kagama 13 the courts re- 
 fused to derive the power of the United States to enact a criminal 
 code for the Indians from its power to regulate commerce with 
 them, but rested it upon the broader basis that has been mentioned. 
 The Indian tribes, the court declared in that case, " 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 
 weakness and helplessness, so largely due to the dealing of the Fed- 
 
 10 Prentice & Epan, Op. cit., p. 346. 
 
 113 Wall. 407: 18 L. ed. 182. 
 
 1203 U. S. 188; 23 L. ed. 846. 
 
 is 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.
 
 300 UNITED STATES CONSTITUTIONAL, LAW. 
 
 eral 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. 
 The power of the General Government over these rem- 
 nants of. a race onoe 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 Govern- 
 ment, because it has never existed anywhere else, because the 
 theatre 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." 
 
 140. Congressional Legislation. 
 
 By the Act of March 30, 1802, consolidating, revising, and re- 
 enacting various prior laws, and entitled "An act to regulate trade 
 and intercourse with the Indian tribes, and to preserve peace on 
 the frontiers," a system of regulation was established which re- 
 mained largely in force for many years. By Section 1, the bound- 
 ary lines between the United States and the various Indian 
 tribes according to treaties entered into with them are laid down. 
 By following sections it is provided that no citizen of or other 
 person resident in the United States shall, under penalty of one 
 hundred dollars, or imprisonment for six months, enter the Indian 
 territory without, a passport; that robbery, larceny, trespass, or 
 other crime, against the person or property of any friendly Indian, 
 "which would be punishable, if committed within the jurisdiction 
 of any State against a citizen of the United States/' is to subject 
 the offender to fine and imprisonment; that when Indian property 
 is taken or destroyed, the offender shall be liable in a sum double 
 its value; that no settlements by citizens or other persons shall be 
 made on any lands belonging to the Indians ; that no traders shall 
 reside in Indian settlements without a license ; that " no purchase, 
 grant, lease, or other conveyance fff lands, or of any title of claim 
 thereto, from any Indian, or nation, or tribe of Indians, within 
 the bounds of the United States, shall be of any validity, in law or
 
 THE LEGAL STATUS OF INDIANS. 301 
 
 equity, unless the same be made by treaty or convention entered 
 into pursuant to the Constitution." 
 
 " In order to promote civilization among the friendly Indian 
 tribes^ and to secure the continuance of their friendship," Section 
 13 declares it lawful for the President of the United States " to 
 cause them to be furnished with useful domestic animals, and im- 
 plements of husbandry, and with goods- or money, as- he may judge 
 proper, and to appoint sudi persons, from time to time, as tempo- 
 rary agents, to reside among the Indians, as he shall think fit: 
 provided, that the whole amount of such presents and allowance to 
 such agents shall not exceed $15,000 per annum." 
 
 In the event of Indians crossing the boundaries of their lands 
 into the States and Territories of the United States and their 
 committing crimes of violence or stealing or destroying property, 
 report is to be made to the tribes to which the offenders- belong, 
 and, in case the tribes refuse to make satisfaction, the President 
 of the United States is to be notified and he is to take such steps- 
 to compel satisfaction as may be necessary. In no case are the 
 individuals who are injured to attempt redress by private war- 
 fare. The superior courts in each territorial district and other 
 federal courts are given, full jurisdiction to hear and determine 
 all offenses against the act. Offenders found within any State or 
 territorial district may be apprehended. The vending or dis- 
 tributing spirituous liquors among the Indiana is forbidden. 
 And, finally, as quoted above, it is declared that " nothing in this 
 act shall be construed to prevent any trade or intercourse with 
 Indians living <>n lands surrounded by settlements of the citizens 
 of the United States, and being within the ordinary jurisdiction 
 of any of the individual States." u 
 
 From this- act it will be seen that the tribal Indians are treated 
 as peoples not within the citizen bodies of the States and Terri- 
 tories, and that no attempt is made to regulate anything but the 
 relations between them and outsiders. The relations of indi- 
 vidual Indians to one another and to their respective tribal au- 
 thorities are left untouched. 
 
 "2 Stat. at L. 139.
 
 302 UNITED STATES CONSTITUTIONAL LAW. 
 
 In 1817 an act was passed by Congress declaring criminal the 
 committing of any act within Indian territories under the exclu- 
 sive jurisdiction of the United States. But offenses of Indians 
 upon Indians were expressly excluded. 
 
 From time to time additional acts of Congress were passed for 
 the regulation of the Indians, all of them predicated upon the idea 
 that the Indians living upon Indian lands 15 constitute a class 
 apart with a peculiar status, jurisdiction over whom is exclu- 
 sively in the General Government. 
 
 141. Federal Jurisdiction Exclusive. Cherokee Nation v. 
 Georgia. 
 
 The exclusiveness of this federal jurisdiction, and, conse- 
 quently, the lack of constitutional power of the States in this 
 field first came up for serious discussion in the Supreme Court 
 of the United States in the case of The Cherokee Nation v, 
 Georgia, 16 decided in 1831. This case came before the court on 
 a motion on behalf of the Cherokee Nation of Indians for a sub- 
 poena and for an injunction to restrain the authorities of the 
 State of Georgia from, executing the laws of the State within the 
 Cherokee territory as designated by a treaty between the United 
 States and the Cherokee Nation. The case, however, was not 
 decided on its merits, the majority of the court, including Chief 
 Justice Marshall, holding that the Cherokee Nation was not a 
 foreign State within the meaning of the clause of the Constitu- 
 tion which extends the federal judicial power over controversies 
 " between a State or the citizens thereof, and foreign States, citi- 
 zens, or subjects," and gives to the Supreme Courts original 
 jurisdiction in cases in which a State is a party. It was held, 
 therefore, that the court was without power to entertain the suit. 
 
 Upon this point, Marshall in his opinion said: "Though the 
 Indians are acknowledged to have an unquestionable, and here- 
 
 15 In Bates v. Clark (95 U. S. 204; 24 L. ed. 471) "Indian lands" are 
 defined by the Supreme Court to be " all the country to whjeh the Indian 
 title has not been extinguished anywhere within the limits of the United 
 States." 
 
 w 5 Pet. 1 ; 8 L. ed. 25.
 
 THE LEGAL STATUS OF INDIANS. 303 
 
 tofore, unquestioned right to the lands they occupy until that 
 right shall be extinguished by a voluntary cession to our govern- 
 ment, yet it may be well doubted whether those tribes which re- 
 side within the acknowledged boundaries of the United States 
 can, with strict accuracy, be denominated foreign nations. They 
 may, more correctly, perhaps, be denominated domestic inde- 
 pendent 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 pupilage. Their relation to the United States 
 resembles that of a ward to his guardian. They look to our gov- 
 ernment for protection; rely upon its kindness and its power; 
 appeal to it for relief to their wants; and address the President 
 as their father. They .and their country are considered by for- 
 eign nations, as well as by ourselves, as being so completely under 
 the sovereignty and dominion of the United States, that any at- 
 tempt 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." 37 
 
 i? Justices Johnson ami Baldwin delivered opinions concurring with that of 
 Marshall. Justice Thompson dissented, holding the Cherokee Nation to con- 
 stitute not only a sovereign State though under the protection of the United 
 States but a foreign State. He said: "They have never been, by conquest, 
 reduced to the situation of subjects to any conqueror, and thereby lost their 
 separate national existence and the rights of self-government, and become 
 subject to the laws of the conqueror. Whenever wars have taken place, they 
 have been followed by regular treaties of peace, containing stipulations on 
 each side according to existing circumstances; the Indian nation always pre- 
 serving its distinct and separate character. And notwithstanding we do not 
 recognize the right of the Indians to transfer the absolute titte of their lands 
 to any other than ourselves, the right of occupancy is still admitted to 
 remain in them, accompanied with the right of self-government, according to 
 their own usage and customs: and with the competency to act in a national 
 capacity, although placed under the protection of the whites, and owing a 
 qualified subjection so far as is requisite for public safety. But the principle 
 is universally admitted that this occupancy belongs to them as a matter of
 
 304 UNITED STATES CONSTITUTIONAL LAW. 
 
 / 
 
 142. Worcester v. Georgia. 
 
 In the great case of Worcester v. Georgia, 18 decided in 1832, 
 the question of the political status of the Indians again came 
 before the Supreme Court for discussion and the doctrine then 
 laid down has remained unquestioned to the present day. This 
 case, like Cherokee Xation v. Georgia, grew out of the attempt 
 of Georgia to exercise jurisdiction over Indian territories situated 
 within the State's limits. 
 
 After an historical review of the dealings of England and her 
 American colonies, and the dealings of the United States under 
 the Constitution with the Indians, Marshall says : " The treaties 
 and laws of the United States contemplate the Indian territory 
 as- completely separated from that of the States ; and provide that 
 all intercourse with them shall be .carried on exclusively by the 
 government of the Union. Is this the rightful exercise of power, 
 or is it usurpation ? . . . The Indian nations had always been 
 considered .as distinct, independent political communities, retain- 
 ing their original natural rights, as the undisputed possessors of 
 the soil from time immemorial, with the single exception of that 
 imposed by irresistible power, which excluded them from inter- 
 course with any other European potentate than the first discoverer 
 of the coast of the particular region claimed ; and this was a re- 
 striction which those European potentates imposed on themselves, 
 as well as on the Indians. The very term ' nation ' so generally 
 applied to them, means, ' a people distinct from others.' The Con- 
 stitution, by declaring treaties already made, as well as those to 
 be made, to- be the supreme law of the land, has adopted and sane- 
 right, and not by mere indulgence. They cannot .be disturbed in the enjoy- 
 ment of it, without their free consent; or unless a just and necessary war 
 should sanction their dispossession. In this view of their situation, there is 
 as full and complete recognition of their sovereignty, as if they were the 
 absolute owners of the soil. The progress made in civilization by the Cherokee 
 Indians cannot surely be considered as in any measure destroying their 
 national or foreign character, so long as they are permitted to maintain a 
 separate and distinct government; it is their political condition that con- 
 stitutes their foreign character, and in that sense must the term foreign be 
 understood as used in the Constitution." 
 
 "6 Pet. 515; 8 L. ed. 483.
 
 Tin-: LK,AL STATUS OF INDIANS. 305 
 
 tioned the previous treaties with the Indian Xations, and conse- 
 quently 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 under- 
 stood meaning. "We have applied them to Indians, as we have 
 applied dimi to the other nations of the earth. They are applied 
 to all in the same manner. 
 
 " Georgia, herself, has furnished conclusive evidence that her 
 former opinions on this subject concurred with those entertained 
 by her sister States, and by the government of the United States. 
 Various acts of her legislature have been cited in the argument, 
 including the contract of cession made in the year 1-802, all tend- 
 ing to prove her acquiescence in the universal conviction that the 
 Indian nations possess 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 who.-o chartered limits they might reside, by a 
 boundary 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. . . . The Cherokee 
 Nation, then, is a distinct community, occupying its own terri- 
 tory, with boundaries accurately described, in which the laws of 
 Georgia can have no force, and which the citizens of Georgia have 
 no right to enter but with the assent of the Cherokees themselves 
 or in conformity with treaties and with the acts of Congress. The 
 whole intern nr-e 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." 19 
 
 19 In the Dre<l S, .n BMB, Tanry descr !!.<- the political status of the Indians 
 as follows: "It is true," lie -ays. "that they formed no part of the local 
 communities and m-vtr amalgamated with them in social connections or in 
 government. But although they were uncivilized, they were yet a free and 
 independent people, associated together in nations or tribes, and governed by 
 
 20
 
 306 UNITED STATES CONSTITUTIONAL LAW. 
 
 The absolute power of the Federal Government over the tribal 
 Indians, derived not only from the Commerce Clause of the Con- 
 stitution, but from the obvious necessities of the case, has carried 
 with it, as we have seen in the Cherokee Nation v. Georgia, and 
 Worcester v. Georgia cases, an implied prohibition upon the State 
 to exercise authority over them. 
 
 In the Kansas Indians, 20 decided in 1867, the court, denying 
 to a State the constitutional power to tax the property of Indians 
 not incorporated into its citizen body, say : " If the tribal organi- 
 zation of the Shawnees [the Indians in question] is preserved 
 intact, and recognized by the political department of the Govern- 
 ment as existing they are a people distinct from the others, capable 
 of making treaties, separated from the jurisdiction of Kansas, 
 and to be governed exclusively by the Government of the Union. 
 If under the control of Congress from necessity there can be no 
 
 their own laws. Many of these political communities were situated in ter- 
 ritory to which the white race claimed the ultimate right of dominion. But 
 that claim was acknowledged to be subject to the right of the Indians to 
 occupy it as long as they thought proper, and neither the English nor 
 colonial governments claimed or exercised any dominion over the tribe or 
 nation by whom it was occupied, nor claimed the right to the possession of 
 the territory, until the tribe or nation consented to cede it. These Indian 
 governments were regarded and treated as foreign governments, as much so as 
 if an ocean had separated the red man from the white; and their freedom has 
 constantly been acknowledged, from the time of the first emigration to the 
 English colonies to the present day, by the different governments which suc- 
 ceeded each other. Treaties have been negotiated with them, and their 
 alliance sought for in war ; and the people who compose these Indian political 
 communities have always been treated as foreigners not living under our 
 government. It is true that the course of events has brought the Indian 
 tribes within the limits of the United States under subjection to the white 
 race; and it has been found necessary, for their sake as well as our own, to 
 regard them as in a state of pupilage, and to legislate to a certain extent 
 over them and the territory they occupy. But they may, without doubt, like 
 the subjects of any other foreign government, be naturalized by the authority 
 of Congress, and become citizens of a State, and of the United States ; and if 
 an individual should leave his nation or tribe, and take up his abode among 
 the white population, he would be entitled to all the rights and privileges 
 which would belong to an emigrant from any other foreign people." 
 205 Wall. 737; 18 L. ed. 667.
 
 THE LEGAL STATUS OF INDIANS. 307 
 
 divided authority." The doctrine in this case was affirmed by 
 the court at the same term in the case of the New York Indians, 21 
 
 It has been held, however, that the state courts have jurisdic- 
 tion over offenses committed by Indians off the reservation, and 
 within the State's territorial limits. 22 
 
 Because of the peculiar quasi-independent status ascribed to 
 the Indian tribes, and the exclusion of their individual members 
 from the general citizen body of the United States, the political 
 departments of the General Government in the control of them 
 have not been held bound by the constitutional limitations which 
 apply to the citizens of the United States. 23 
 
 143. Naturalization of Indians by Statute. 
 
 In 188-4, in the case of Elk v. Wilkins, 24 the question arose 
 whether an Indian, born a member of one of the Indian tribes 
 within the United States, became a citizen of the United States 
 under the Fourteenth Amendment, by reason of his birth within 
 the United States, and his afterward voluntarily separating him- 
 self from his tribe and taking up a. residence among white citi- 
 zens. In declaring that he did not and could not thus become a 
 citizen, the court said: " The alien and dependent condition of 
 the members of the Indian tribes could not be put off 'at their 
 own will, without the action or assent of the United States. 
 They were never deemed citizens of the United States, except 
 under explicit provisions of treaty or statute to that effect, either 
 declaring a certain tribe, or such members of it as chose to re- 
 main behind on the removal of the tribe westward, to be citizens, 
 or authorizing individuals of particular tribes to become citizens 
 on application to a court of the United States for naturalization, 
 and satisfactory proof of fitness for civilized life. . . . Indians 
 born within the territorial limits of the United 'States, members 
 
 21,1 Wall. 7fil ; 18 L. ed. 708. See post, p. 314, the case of United States 
 v. Rickert, 188 U. S. 432; 23 Sup. a. Rep. 478; 47 L. ed. 532. 
 
 22 People v. Antonio, 27 Cal. 404; Hunt v. State, 4 Kan. 60; United States 
 v. Yellow Sun, 1 Dill. 271. 
 
 23 For a discussion of the reasonableness of this doctrine based upon the 
 necessities of the case, see article in the American Law Review, XV, 21, 
 entitled " The l>ral Position of the Indians." hy Ceorge F. Canfield. 
 
 24 112 U. S. 94; 5 Sup. Ct. Rep. 41; 28 L. ed. 643.
 
 308 UNITED STATES CONSTITUTIONAL LAW. 
 
 of, and owing immediate allegiance to one of the Indian tribes 
 (an .alien, though dependent power), although in a geographical 
 sense born in the United States, are 110 more ' born in the United 
 States and -subject to the jurisdiction thereof within the mean- 
 ing of the first section of the fourteenth Amendment, than the 
 children of subjects of any foreign .government born within the 
 domain of .that .government, or the children, born within the 
 United States, of ambassadors or other public ministers of foreign 
 nations. . . . Such Indians, then, not being citizens by birth, 
 can only become citizens in the second way mentioned in the 
 Fourteenth Amendment, by being naturalized in the United 
 States by or under some treaty or statute." 25 
 
 .144. Disappearance of Indian Tribal Autonomy. 
 
 /Since the decision of the Supreme Court in Elk v. "Wilkins a 
 number of acts of Congress have been passed which have had the 
 effect of destroying', to a very considerable extent, the autonomous 
 tribal governments of the Indians and of subjecting them to the 
 immediate legislative control of Congress instead of to the treaty- 
 making power. The way had been opened to this change in a 
 "rider" attached to an appropriation bill in 1871 which pro 
 vided, as has been earlier stated, that " Xo 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 contract by treaty." 26 
 
 By an act passed March 3, 1885, the federal courts were for 
 the first time, given considerable jurisdiction over crimes com- 
 mitted within the reservations by Indians upon Indians. Section 
 
 * Justices Wood and Harlan dissented. 
 
 ** Notwithstanding this act. Congress lias continued to deal with the Indians, 
 in-many cases, by agreements. That is, their formal consent has been required 
 as a condition precedent to putting into force the legislation proposed. Some 
 question as to the constitutionality of this has been raised, it being allr-gcd 
 that the practice amounts to a delegation by Congress of its legislative power 
 in the premises. It would seem, however, that the objection is not of great 
 weight, as it is conceded that a legislative body may make a statute condi- 
 tional upon the consent of those to whom it applies, provided such assent 
 Affects merely the expediency of the statute (Cooley, Const. Lim., 7th ed., 
 p. 164).
 
 THE LEGAL STATUS OF LXDIAXS. 309 
 
 9 of this law provides : " That immediately upon and after the 
 date of the passing of this Act all Indians committing against 
 the person or property of another Indian or other person any of 
 the following crimes ; namely, murder, ma iisla tighter, rape, assault 
 with intent to kill, arson, burglary, and larceny, within any Ter- 
 ritory of the United States, and either within or without the 
 Indian lieservatiou, shall be subject therefor to the laws of said. 
 territory relating to said crimes, and shall fee tried therefor in tho 
 same courts and in the same manner, and shall be subject to the 
 same penalties, as are all other persons charged with the commis- 
 sion of said crimes respectively; and said courts- are hereby given 
 jurisdiction in all such cases; and all such Indians committing 
 any of the above described 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 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 erimea- 
 withiii the exclusive jurisdiction of the United States." 
 
 The constitutionality of this act was attacked upon the ground 
 that it was not within the legislative power of Congress thus to 
 interfere with the internal legal affairs of Indians still maintain- 
 ing, tribal governments. The Supreme Court, held, however, in 
 United States v. Kagama, 27 that whatever political and legal free- 
 dom was enjoyed by the Indians was by way of permission or 
 cession from the Federal Government, and was, therefore, subject 
 to curtailment or complete withdrawal by that power. " These 
 Indian tribes." it declared, " are the wards- of the Xation. They 
 are communities dependent on the United States, dependent 
 largely for their daily food, dependent for their political, rights. 
 They owe no allegiance to the States, and receive from them no 
 protection." 
 
 To this decision the objection was urged, and, it. would seem, 
 with considerable force, that since tho Indiana are no longer per- 
 mitted to enjoy tribal autonomy, and are no longer treated by the 
 
 27 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 Federal Government as independent communities which are to 
 be dealt with by treaties instead of statutes, there disappears the 
 constitutional justification for denying to the States the control 
 of such of them as live within their territorial limits. To this 
 the Supreme Court had no better answer to give than that of 
 expediency always a poor, if not an absolutely invalid argu- 
 ment. " The power of the General Government over these rem- 
 nants of a race once poVerf ul, now weak and diminished in num- 
 bers/' it said, " is necessary to their protection, as well as to the 
 safety of those among whom they dwell." Upon this argument 
 the exclusive jurisdiction of the Federal Government over the 
 negroes could, in a degree at least, be justified. 
 
 At various times during past years, Congress has declared as 
 to particular Indian tribes, that their lauds should be divided 
 and held in severally by their respective members, and that, there- 
 upon, such Indians should become citizens of the United States, 
 and pass immediately from the exclusive jurisdiction of the Fed- 
 eral Government to that of the States in which they reside. By 
 the General Land in Severalty Law, known as the " Dawes Act," 
 approved February 8, 1887, the President was given the power 
 to apply this process to practically every Indian reservation in 
 the country. The peculiarity of these acts is, it will be observed, 
 that it makes citizens of Indians against their will. The action 
 is taken at the discretion of the President and citizenship is the 
 result 28 
 
 28 The following are the provisions of this act upon the points under dis- 
 cussion : 
 
 " That in all cases where any tribe or band of Indians has been, or shall 
 hereafter be, located upon any reservation created for their use, either by 
 treaty stipulation or by virtue of an act of Congress or executive order setting 
 apart the same for their use, the President of the United States be, and he 
 hereby is, authorized, whenever in his opinion any reservation or any part 
 thereof of such Indians is advantageous for agricultural and grazing purposes, 
 to cause said reservation, or any part thereof, to be surveyed, or resurveyed 
 if necessary, and to allot the lands in said reservation in severalty to any 
 Indian located thereon in quantities as follows: 
 
 " Sec. 5. That upon the approval of the allotments provided for in this act 
 by the Secretary of the Interior, he shall cause patents to issue therefor in 
 the name of the allottees, which patents shall be of the legal effect, and
 
 THE LEGAL STATUS OF INDIANS. 311 
 
 The declaration of 1871, and the acts of 1885 and 1887, and 
 the sustaining of their constitutionality by the Supreme Court, 
 illustrate the legal power of the United States to govern the 
 tribal Indians at will as bodies of individuals completely subject 
 to its legal control, despite the status of ^wasi-independence that 
 has been accorded them. This absolute power of control has been 
 conspicuously exhibited in more recent legislation which has been 
 enacted in pursuance of a policy decided upon to abolish, as 
 rapidly as possible, the tribal relations and governments, to ex- 
 tinguish the Indian titles to lands, and to incorporate the indi- 
 vidual Indians in the general citizen bodies of the States and 
 Territories in which they live. 
 
 declare that the United States does and will hold the land thus allotted for 
 the period of twenty-five years, in trust for the sole use and benefit of the 
 Indian to whom such allotment shall have been made, or, in case of his 
 dec-ease, of his heirs, according to the laws of the State or Territory where 
 such land is located, ami that at the expiration of said period the United 
 States will convey the same by patent to said Indian, or his heirs as afore- 
 said, in fee, discharged of said trust and free of all charge or incumbrance 
 whatsoever: Provided, That the President of the United States may in any 
 case in his discretion extend the period.- . 
 
 " Sec. 6. That upon the completion of said allotments and the patenting of 
 the lands to said allottees, each and every member of the respective bands or 
 tribes of Indians to whom allotments have been made shall have the benefit 
 of and be subject to the laws, both civil and criminal, of the State or Terri- 
 tory, in which they may reside; and no Territory shall pass or enforce any 
 law denying any such Indian within its jurisdiction the equal protection of 
 the law. And every Indian born within the territorial limits of the United 
 States to whom allotments shall have been made under the provisions of this 
 act, or under law or treaty, and every Indian born within the territorial 
 liniits of the United States who has voluntarily taken up. within said limits, 
 his residence separate and apart from any tribe of Indians therein, and has 
 adopted the habits of civilized life, is hereby declared to be a citizen of the 
 United States, and is entitled to'all the rights, privileges, and immunities ot 
 such citixcns whether said Indian has been or not. by birth or otherwise, a 
 member of any tribe of Indians within the territorial limits of the United 
 States without in any manner impairing or otherwise affecting the right of 
 any such Indian to tribal or other property. 
 
 " Sec. 8. That the provision of this act shall not extend to the territory 
 occupied by the Cherokees, Creeks. Choctaws, Chickasaws. Seminoles, and 
 Osage. Miamies and Peorias. and Sacs and Foxes, in the Indian Territory, 
 nor to any of the reservations of the Senaca Nation of Xew York Indians in 
 the State of Xew York, nor to that strip of territory in the State of Nebraska
 
 312 UXITED STATES CONSTITUTIONAL LAW. 
 
 The new policy was based upon the facts found by the so-called 
 " Daw ea- Commission," which was created by the acts of March 3 ; 
 1S93, 28 and March 2, 1895. 30 
 
 The constitutionality of thus- summarily dealing with the In- 
 dians by statute, has been questioned in a number of cases before 
 the Supreme Court, but has always been sustained. 
 
 In Stephens v. Cherokee Xation, 31 decided in 1S99, it was held 
 that because such legislation might be in violation of previous 
 treaties with the Cherokees was no ground for holding it invalid. 32 
 As to the general legislative powers of Congress over the Indians, 
 the court said : " We need not review the decisions- on the subject, 
 as they are sufficiently referred to by Mr. Justice Harlan in 
 Cherokee Xation v. Southern. Kan. Ky. Co. (135 U. S. 641; 10 
 Sup. Ct. Bep. 965; 3-t L. ed. 295), from whose opinion we quote 
 as follows : i The proposition that the Cherokee Xation is sover- 
 eign in the sense that the United States is sovereign, or in the 
 sense that the several States- are sovereign, and that that nation 
 
 adjoining the Sioux. Nation on the south added by executive order." (Kev. 
 Stat., 2316.) 
 
 The " Dawes " Act of 1887 also provides for allotments of land and citizen- 
 ship to Indians who may wish to settle upon the public lands of the United 
 States. It also declares that all Indians forsaking their tribal life and 
 adopting the habits of civilized life shall become citizens. Without this 
 express statutory provision, as was decided in Elk v. YVilkins, citizenship 
 could not thus be obtained. 
 
 The peculiar status of those Indians who have not become citizens is illus- 
 trated in the form of a letter of protection issued in lieu of a passport, to 
 those traveling abroad. The following is a letter issued by our consul at 
 Odessa, the form of which has been approved by the State Department: 
 
 " To whom it may concern : 
 
 " The bearer of this document is a North American Indian whose name is 
 Hampa. This Indian is a ward of the United States, and is entitled to the 
 protection of its consular and other officials. He is not, however, entitled to 
 a passport, as he is not a citizen of the United States. This consulate has 
 the honor to request the Russian authorities to grant Hampa all necessary 
 protection during his stay in Russia, and to grant him permission to depart 
 when he requires it." 
 
 29 27 Stat. at L. c. 209. 
 
 3028 Stat. at L. c. 189. 
 
 31 174 U. S. 445; 19 Sup. Ct. Rep. 722; 43 L. ed. 1041. 
 
 32 Quoting Thomas v. Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 
 740.
 
 THE LEGAL STATUS OF IXDIA 313 
 
 alone can exercise the power of eminent domain within its limits, 
 finds uo support in the numerous treaties with the Cherokee 
 Indians, or in the decisions of this court, or in the acts of Con- 
 gress denning the relations of that people with the United States/ 
 . . . It is true, as declared in Worcester v. Georgia (0 Pet. 
 515 ; 8 L. ed. 4S>), that the treaties and laws of the United States 
 contemplate the Indian Territory as completely separated from 
 the States and the Cherokee Nation as a distinct community, and 
 (in the language of Mr. Justice McLean in the same case, p. 583), 
 that ' in the executive, legislative, and judical branches of our 
 government we have admitted, by the most solemn sanction, the 
 existence of the Indians as a separate and distinct people, and as 
 being vested with rights which constitute them a State, or a sepa- 
 rate community.' But that falls far short of saying that they 
 are a sovereign State, with no superior within the limits of its 
 territory." 
 
 In Cherokee Xation v. Hitchcock, 33 decided in 1902, the pro- 
 visions of the Act of 1898, authorizing the Secretary of the In- 
 terior to prescribe regulations for the leasing of mineral lands 
 in the tribal districts of the plaintiffs for the purpose of making 
 these lands productive and of securing therefrom an income for 
 the benefit of the tribe, was held valid. 
 
 In Lone Wulf v. Hitchcock,"* decided in 1903, was questioned 
 the constitutionality of an act of Congress- of 190 providing l'<>r 
 allotment in severally of lands held in common within certain 
 Indian reservations and purporting to give an adequate considera- 
 tion for the ^urplus lands not allotted or reserved for their benefit. 
 In its opinion, upholding the validity of the act, notwithstanding 
 its alleged incongruity with previous treaties, the court say: 
 " Plenary authority over the tribal relations of the Indians has 
 been exercised by Congress from the beginning, and the power 
 has always born deemed a political one, and not subject to be con- 
 trolled by the judicial department, of the government. . . 
 The power exists to abrogate the provisions of an Indian treaty, 
 
 i : . . 
 
 33187 U. S. 204: 23 Sup. ft. Rep. 115; 47 L. ed. 183. 
 34197 U. S. 553; 23 Sup. ft. Rep. 21G; 47 L. ed. 299.
 
 314 UNITED STATES CONSTITUTIONAL LAW. 
 
 though presumably such power will be exercised only when cir- 
 cumstances arise which will not only justify the government in 
 disregarding the stipulations of the treaty, but may demand, in 
 the interest of the country and the Indians themselves, that it 
 should do so." 
 
 / In United States v. Rickert, 35 decided in 1903, it was held that 
 lands allotted in severalty to Indians under the Act of 1887, and 
 held in trust for them by the United States for twenty-five years, 
 are not taxable by the State in which situated, nor are the im- 
 provements upon them, or the cattle or other property furnished 
 the allottees by the United States. The court in its opinion say: 
 " To tax these lands is to tax an instrumentality employed by the 
 United States for the benefit and control of this dependent race, 
 and to accomplish beneficent objects with reference to a race of 
 which this court has said that i from their very weakness 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.' 
 United States v. Kagama, 118 U. S. 375 ; 6 Sup. Ct. Rep. 1109 ; 
 30 L. ed. 228." 
 
 With reference to the permanent improvements on the lands in 
 question, the court say: "Looking at the object to be accom- 
 plished by allotting Indian lands in severalty, it is evident that 
 Congress expected that the lands so allotted would be improved 
 and cultivated by the allottee. But that object would be defeated 
 if the improvements could be assessed and sold for taxes. The 
 improvements to which the question refers were of a permanent 
 kind. While the title to the land remained in the United States, 
 the permanent improvements could no more be sold for local 
 taxes than could the land to which they belonged. Every reason 
 that can be urged to show that the land was not subject to local 
 taxation applies to the assessment and taxation of the permanent 
 improvements. It is true that the statutes of South Dakota, for 
 the purpose of taxation, classify ' all improvements made by per- 
 
 35 188 U. S. 432; 23 Sup. Ct. Rep. 478; 47 L. ed. 532.
 
 THE LEGAL STATUS OF INDIANS. 315 
 
 sons upon lands held by them under the laws of the United 
 States/ as personal property. But that classification cannot apply 
 to permanent improvements upon lands allotted to and occupied 
 by Indians, the title to which remains with the United States, 
 the occupants still being wards of the nation, and as such under 
 its complete authority and protection. The fact remains that the 
 improvements here in question are essentially a part of the lands, 
 and their use by the Indians is necessary to effectuate the policy 
 of the United States." 
 
 With reference to the personal property provided the allottees, 
 the court declare: " The answer to this question is indicated by 
 what has been said in reference to the assessment and taxation 
 of the land and in the permanent improvements thereon. The 
 personal property in question was purchased with the money of 
 the government, and was furnished to the Indians in order to 
 maintain them on the land allotted during the period of the trust 
 estate, and to induce them to adopt the habits of civilized life. 
 It was, in fact, the property of the United States, and was put 
 into the hands of the Indians to be used in execution of the pur- 
 pose of the government in reference to them. The assessment 
 and taxation of the personal property would necessarily have the 
 effect to defeat that purpose." 
 
 Finally, with reference to the question whether the United 
 States had a sufficient interest in the matter to entitle it to bring 
 suit, the opinion declares: "In view of the relation of the 
 United States to the real and personal property in question, as 
 well as to these dependent Indians still under national control, 
 and in view of the injurious effect of the assessment and taxation 
 complained of upon the plans of the government with reference 
 to the Indians it is clear that the United States is entitled to 
 maintain this suit. Xo argument to establish that proposition is 
 necessary." 
 
 In Re Hoff, 36 decided in 1905, however, the court held that an 
 Indian to whom an allotment under the Act of 1887 had been 
 made, and who, by that act, had been granted the privilege of 
 citizenship, and given the benefit of, and subjected to, the civil 
 
 86 197 U. S. 488; 25 Sup. Ct. Rep. 506; 49 L.-ed. 848.
 
 316 UNITED STATES CONSTITUTIONAL LAW. 
 
 and criminal laws of the State in which lie resided, was a mem- 
 ber of the citizen body of that State, and. no longer under such 
 federal control as- to empower Congress, under the Commerce 
 Clause, to penalize the sale within the State of liquor to him. 3 ' 
 
 37 After a review of the recent legislation of Congress dealing with the 
 Indian, and a consideration of the police powers reserved to the States, the 
 court say: "But it contended that, although the United States may not 
 punish under the police power the sale of liquor within a State by one citizen 
 to another, it has power to punish such sale if the purchaser is an Indian. 
 And the power to do this is traced to that clause of 8, Art. 1, of the Con- 
 stitution, which empowers Congress 'to regulate commerce with foreign nations, 
 and among the several States, and with the Indian tribes.' It is said that 
 commerce with the Indian tribes includes commerce with the members thereof, 
 and Congress, having power to regulate commerce between the white men and 
 the Indians, continues to retain that power, although it has provided that the 
 Indian shall have the benefit of and be subject to the civil and criminal laws 
 of the State, and shall be a citizen of the United States, and therefore a 
 citizen of the State. But the logic of this argument implies that the United 
 States can never release itself from the obligations of guardianship; that, so 
 long as an individual is an Indian by descent, Congress, although .it may 
 have granted all the rights and privileges of national, and therefore <=tate, 
 citizenship, the benefits and burdens of the laws of the State, may at anv' 
 time repudiate this action and reassuine its guardianship, and. prevent the 
 Indian from enjoying the benefit of the laws of the State and release him 
 from obligations of obedience thereto. Can it be that because one has Indian, 
 and only Indian, blood in his veins, he is to be forever one of a special class 
 over whom the General Government may. in its discretion, assume the rights 
 of guardianship which it has once abandoned, and this whether the State or 
 the individual himself consents? We think the reach to which this argument 
 goes demonstrates that it is unsound. But it is said that the government 
 has provided that the Indian's title shall not be alienated or encumbered for 
 twenty-five years, and has also stipulated that the grant of citizenship shall 
 not deprive the Indian of his interest in tribal or other property; but these 
 are mere property rights, and do not affect the civil or political status of the 
 allottees. . . . But the fact that property is held subject to a condition 
 against alienation does not affect the civil or political status of the holder of 
 the title. Many a tract of land is conveyed with conditions subsequent. 
 But it is unnecessary to pursue this discussion further. We are of 
 the opinion that, when the United States grants the privileges of citizenship 
 to an Indian, gives to him the benefit of, and requires him to be subject to, 
 the laws, both civil and criminal, of the State, it places him outside of police 
 regulations on the part of Congress; that the emancipation from federal con- 
 trol is not affected by the fact that the lands it has granted to the Indian 
 are granted subject to a condition against alienation and encumbrance, or the 
 further fact that it guarantees to him an interest in tribal or other property."
 
 THE LEGAL STATUS OE IXDIAXS. 317 
 
 The last acts of Congress in' this history of its purpose to assimi- 
 late the tribal Indians into the general citizen body of the nation 
 are two statutes enacted in 1906. 
 
 By an act approved April 26, 1906, provision is made "for the 
 final disposition of the affairs of the Five Civilized Tribes in the 
 Indian Territory. In this statute rules are laid do\m 'for deter- 
 mining tribal membership; the removal of chiefs for non-per- 
 formance of duties prescribed by the act; the "transfer of "tribal 
 schools to the control of the Secretary of Interior; for the collec- 
 tion of tribal revenues by officers appointed by the Secretary; 
 the abolishment of tribal taxes ; the disposition of tribal buildings 
 and other property ; the sale of unallotted lands ; the per capita 
 distribution of tribal funds; the prohibition for a period of 
 twenty-five years of the sale or encumbering by Indians of lands 
 allotted to them (though leases may be entered into, except home- 
 steads, with the approval of the Secretary of the Interior) ; that 
 all lands, thus restricted, shall be exempt from taxation as long 
 ;H the title remains in the original allottee. 28 
 
 33 Sections 27 and 28 provide as follows : 
 
 " Sec. 27. That the lands belonging to the Choctaw, Chickasaw, Cherokee, 
 Cretk, or -Seminole tribes, upon the dissolution of said tribes, shall not become 
 public lands nor proiterty of the United States, but shall be held in trust by 
 the United States for the use and benefit of the Indians respectively com- 
 prising each of said tribes, and their heirs as the same shall appear by the 
 r- Us as finally concluded as heretofore and hereinafter provided for: Pro- 
 vided, That nothing herein contained shall interfere with any allotments 
 heretofore or hereafter made or to be made under the provisions of this or 
 any other Act of Congress. 
 
 ^ec. 28. That the tribal existence and present "tribal governments of the 
 Choctaw, Chk-kasaw, Cherckee, Creek, and Seminole tribes or nations are 
 luiciiy continued in full force and effect for all purposes authorized by law, 
 ' until otherwise provided by law, but the tribal council or legislature in any 
 ;id tribes or nations shall net be in session for a longer period than 
 thirty days in any i.ne year: Provided, That no act, ordinance, or resolution 
 (v.\rept resolutions of adjournment) of the tribal council or legislature of 
 i-ny <>f said tribes or nations shall be of any validity ur.til approved by the 
 I'M sident of the United States: Provided further, That no contract involving 
 tin- payment or expenditure of any in; n.'v or allivting any property belonging 
 t .my c/f .-ai.' tri. - <,r nations by them or any of them or by any officer 
 thereof, shall be of any validity until approved by the President of the United 
 State*."
 
 318 UNITED STATES CONSTITUTIONAL LAW. 
 
 By an act approved May 8, 1906, Section 6 of the Act of 1887 
 is amended so as to read as follows : " Sec. 6. That at the expira- 
 tion of the trust period and when the lands have been conveyed 
 to the Indians by patent in fee, as provided in section five of this 
 Act, then each and every allottee shall have the benefit of and be 
 subject to the laws, both civil and criminal, of the State or Terri- 
 tory in which they may reside; and no Territory shall pass or 
 enforce any law denying any such Indian within its jurisdiction 
 the equal protection of the law. And every Indian born within 
 the territorial limits of the United States to whom allotments 
 shall have been made and who has received a patent in fee simple 
 under the provisions of this Act, or under any law or treaty, and 
 every Indian born within the territorial limits of the United 
 States who has voluntarily taken up within said limits his resi- 
 dence separate and apart from any tribe of Indians therein, and 
 has adopted the habits of civilized life, is hereby declared to be 
 a citizen of the United States, and is entitled to all the rights, 
 privileges, and immunities of such citizens, whether said Indian 
 has been or not, by birth or otherwise, a member of any tribe of 
 Indians within the territorial limits of the United States without 
 in any manner impairing or otherwise affecting the right of any 
 such Indian to tribal or other property: Provided, That the Sec- 
 retary of the Interior may, in his discretion, and he is hereby au- 
 thorized, whenever he shall be satisfied that any Indian allottee 
 is competent and capable of managing his or her affairs at any 
 time to cause to be issued to such allottee a patent in fee simple, 
 and thereafter all restrictions as to sale, incumbrance, or taxation 
 of said land shall -be removed and said land shall not be liable to 
 the satisfaction of any debt contracted prior to the issuing of such 
 patent: Provided further, That until the issuance of fee-simple 
 patents all allottees to whom trust patents shall hereafter be issued 
 shall be subjected to the exclusive jurisdiction of the Unite^. 
 States: And provided further, That the provisions of this Act 
 shall not extend to any Indians in the Indian Territory." 39 
 
 The Enabling Act of June 6, 1906, providing for the admission 
 of the Territories of Oklahoma and Indian Territory as the State 
 
 3934 Stat. at L. 182.
 
 THE LEGAL STATUS OF INDIANS. 319 
 
 of Oklahoma, provided : " That nothing contained in the said Con- 
 stitution [of Oklahoma] shall be construed to limit or impair the 
 rights of person or property pertaining to the Indians of said 
 Territories (so long as such rights shall remain unextinguished) 
 or to limit or affect the authority of the Government of the 
 United States to make any law or regulation respecting such 
 Indians, their lands, property, or other rights by treaties, agree- 
 ment, law, or otherwise, which it would have been competent to 
 make if this act had never been passed."
 
 CHAPTER 
 
 THE ADMISSION OF NEW STATES. 
 
 145. The Admission of New States. 
 
 The process of admitting new States to the American Union 
 is a comparatively simple process and but few constitutional 
 questions have arisen in connection with it. The constitutional 
 clause governing the subject reads as follows : " Xew 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 legis- 
 latures of the States concerned as well as of the Congress." 1 It 
 fall thus be seen that nothing is said as to the conditions that 
 must be met by a given territory before it may claim, or Congress 
 be obligated to grant, admission to the Union as a State. The 
 whole matter is left absolutely to the discretion of Congress. There 
 can be no question but that at the time of the adoption of the 
 Constitution the idea was generally held that all non-state terri- 
 tory held or to be held by the United States was to be regarded 
 as material from which new States were to be created as soon as 
 population and material development should warrant. But no 
 attempt was made to force the hand of Congress under circum- 
 stances that could not be foreseen by denning in the Constitution 
 itself the conditions under which statehood should be accorded. 
 But one limitation is laid down, and that impliedly, and this 
 relates rather to the status of new States after admission, than 
 to the process of admission itself. This is that the new Common- 
 wealths, when received into constitutional fellowship with the 
 older members of the Union, shall stand upon an exactly equal 
 footing with them. 
 
 As has been seen, the Constitution does not attempt to fix the 
 modus operandi in which new members are to be admitted into 
 the Union. It does not even say whether they are to be formed 
 from territory already under its sovereignty, and in one instance, 
 
 i Art. IV, Sec. 3.
 
 THE ADMISSION OF XKW STATES. 321 
 
 that of Texas, a new State was received by the direct process of 
 incorporating, by a joint resolution of Congress, a foreign inde- 
 pendent State. In all other cases, however, new States have been 
 formed from areas already belonging to the United States and 
 organized as territories. 
 
 -f The usual process by which these territories have obtained 
 statehood is as follows: The people of a territory petition Con- 
 gress to grant them statehood. If that body is favorably disposed, 
 a so-called " enabling act " is passed, authorizing the framing of 
 a state Constitution, prescribing the manner in which it shall be 
 framed, and laying down certain requirements that must be met. 
 All these conditions having been met, a resolution reciting this 
 fact is passed by Congress, and the Territory declared a State 
 and admitted as such into the Union. In some cases the final 
 step in the process has been a proclamation issued by the Presi- 
 dent in obedience to the direction of Congress. 
 
 The above has been the usual and regular process. In not a 
 few instance?, however, the inhabitants of Territories have met 
 in conventions and framed Constitutions without first obtaining 
 the authorization of Congress. The acceptance, however, by that 
 body, of the instrument framed has been considered sufficient to 
 validate the proceeding. 
 
 There has been some little constitutional speculation as to 
 whether the decisive, creative act in the bringing into existence 
 of a now State is the Resolution of Congress approving the con- 
 stitution that has been draro-n up and declaring the former Terri- 
 tory one of the States of the Union : or whether the vivifying force 
 is derived from the constituent act of the people of the Territory 
 in framing and adopting their state Constitution. The latter is 
 the view most acceptable to the States' Right? school 2 It would 
 
 2 In Brownson'* American Republic, premising that the entrance of Ter- 
 ritories into tlie Union as State- is the free act of the peoples of the respective 
 Territories, the argument is made that the States of the- Southern Con- 
 federacy, by their ordinances of secession, in effect annulled these acts, and 
 thus, ipso facto, rel<^ate<l themselves to the status of Territories, swd as such 
 came under the complete control of Congress for that body to " reconstruct " 
 their governments as it should see fit, and readmit them as States, and upon 
 such terms, as it should approve. 
 
 21
 
 322 UNITED STATES CONSTITUTIONAL LAW. 
 
 seem to be sufficently plain, however, that the former is the cor- 
 rect doctrine; for there can be no question but that it lies within 
 the power of Congress arbitrarily to refuse its approval to a con- 
 stitution that has been framed by the people of a Territory 
 strictly in accordance with the requirements of the Enabling AcL 
 The final, and therefore decisive step, has thus to be taken by the 
 Federal Government. 
 
 This doctrine has, indeed, received implied judicial sanction 
 at the hands of the United States Supreme Court in its decision 
 in the case of Scott v. Jones. 3 
 
 In this case was involved the validity of an act of a legislature 
 of a Territory passed prior to the admission of the Territory into 
 the Union as "a State. The Supreme Court dismissed the case for 
 lack of jurisdiction on the grounds that the law in question was 
 not passed by a legislature of a State and did not, therefore, come 
 within the express terms of the Judiciary Act, which provided the 
 court with its appellate jurisdiction. Referring to the fact that 
 the jurisdiction conferred by the twenty-fifth section of the Judi- 
 ciary Act had been granted lest a State might legislate against 
 some part of the Constitution, or trench upon matters not within 
 its province, the court said : " Such being the evil or danger, it 
 precludes the idea that this clause in the Judiciary Act had any 
 reference to the fact that public bodies which had not been duly 
 organized, and not been admitted into the Union, would, as States, 
 undertake to pass laws, without being empowered to do it, which 
 might encroach on the Union or its granted powers, and hence 
 should be thus guarded against. Such conduct by such bodies, 
 if not situated within the territory of the Union, would be a for- 
 eign affair, and not within the cognizance of any of the depart- 
 ments of this government, unless so interfering with its rights as 
 to call for the political exercise of the executive and legislative 
 authority over our foreign relations. Again, such conduct by 
 bodies situated within our limits, unless by States duly admitted 
 into the Union, would have to be reached either by the power of 
 
 35 How. 343; 12 L. ed. 181. Cf, Jameson, Constitutional Convention, 
 Sec. 207.
 
 THE ADMISSION OF XEW STATES. 323 
 
 the Union to put down insurrections, or by the ordinary penal 
 laws of the States or Territories within which these bodies unlaw- 
 fully organized are situated and acting. While in that condition 
 their measures are not examinable at all by a writ of error to 
 this court, as not being statutes by a State, or a member of the 
 Union. And after such bodies are recognized as having been 
 duly organized, and are admitted into the Union, if they ever 
 be, the judicial tribunals of the General Government, which 
 acquiesces in the political organization that has been professing 
 to pass statutes, and which admits it as a legal and competent 
 State, must treat its statutes passed under that organization as 
 they would the statutes of any other State, within the meaning 
 and spirit of the Judiciary Act. And if so, we must inquire only 
 into the validity of their subject-matter, and not as to the new, 
 any more than the old, States, ever suppose that the question of 
 their political competency or power to pass statutes at all was an 
 inquiry intended to be placed under our consideration and de- 
 cision by the twenty-fifth section of the Judiciary Act. It fol- 
 lows, then, that a statute, passed by a political body before its 
 admission into the Union, seems either not to be one, under the 
 cognizance of the Union or its judicial tribunals, by means of 
 Sec. 25 of the Judiciary Act, unless re-enacted or adopted after 
 becoming a State ; then it is treated like the statute of any State ; 
 or the admission of the State into the Union by Congress, subse- 
 quently with the constitutional and political organization under 
 which the statute was passed by the State a competent State 
 leaving, as in other cases, merely its subject-matter to be ex- 
 amined in order to see if it violates or not any acts or provisions 
 of the General Government."
 
 CHAPTER XXII. 
 
 THE POWER OF THE UNITED STATES TO ACQUIRE TERRITORY. 
 
 In the chapters that hare gone before the effort has been made 
 to set forth the constitutional relations subsisting between the 
 Union and its commonwealth members. From the very beginning, 
 however, the American constitutional system has included other 
 political units than the States. These units are Territories, De- 
 pendencies, and a Federal District or seat of Xational Govern- 
 ment. 1 To a consideration of the constitutional questions incident 
 to the annexation and government by the Xational Government 
 of the territories and peoples of which these political elements 
 are composed, we shall now turn. This will involve a discussion 
 of the following points. (1) The constitutional power of the 
 United States to acquire territories; (2) the modes or purposes 
 for which they may be acquired; and (3) their constitutional 
 status. First then as to the power to acquire. 2 
 
 !N^o express power is given to the United States by the Constitu- 
 tion to acquire additional territory. In 1803, however, the vast 
 Louisiana Territory was purchased from France and annexed to 
 the Union; in 1819 Florida was obtained from Spain; in 1846 
 the Oregon Territory was obtained through discovery, occupation, 
 and convention with England; in 1845 the State of Texas was 
 annexed; in 1848 and 1853 additional territory was obtained by 
 cession from ^fexico; in 1856 the annexation of the Guano Islands 
 was authorised by a congressional statute; in 1867, Alaska, the 
 first territory non-contiguous to the United States, was obtained 
 from Russia; in the same year Midway Island was taken poses- 
 
 1 The term " Dependency " can hardly be said to have been as yet accepted 
 as a technically correct term, and possibly never may be. In default, how- 
 ever, of a better word the term will be here provisionally employed. 
 
 2 In this chapter there is considered simply the question as to the power 
 of the United States to extend its sovereignty over additional territory. The 
 question whether territory when thus broiight under the dominion of the 
 United States is necessarily " incorporated " in it, in a peculiar constitutional 
 sense, is discussed in a later chapter (Chapter XXX). 
 
 [324]
 
 POWER OF UNITED STATES TO ACQUIRE TERRITORY. 325 
 
 sion of by the President; in 1898 the Hawaiian Islands were 
 annexed; in 1>9 S , as a result of the Spanish-American War, the 
 islands of Porto Rico, the Philippines, and Guam came under the 
 sovereignty of the United States; and in 1900, three of the 
 Samoan Islands were acquired. 3 
 
 The constitutional power of the United States thus to annex 
 foreign territory has been, at various times, and by various 
 writers, derived from the following sources: 
 
 1. The power to admit new States into the Union. 4 
 
 2. The power to declare and carry on war. 5 
 
 3. The power to make treaties. 6 
 
 4. The power, as a Sovereign State, to acquire territory by dis- 
 covery and occupation or by any other methods recognized as 
 proper by international usage. 
 
 These various sources will be considered seriatim. 
 
 146. The Right to Annex Based on the Right to Admit New 
 
 States. 
 
 At the time of the adoption of tjie Constitution, the territory 
 subject to the sovereignty of the United States consisted of the 
 respective territories of the thirteen original States, and the vast 
 reaches of land to the west, that to the north and west of the 
 Ohio river being known as the Xorthwest Territory. These areas 
 had been ceded to the old Confederation of the 'States and gov- 
 erned according to the provisions of the famous Xorthwest Ordi- 
 nance of 1787; which provisions were re-enacted upon the estab- 
 lishment of the new government in 1789. 7 
 
 3 The term ''Insular Possessions" has been officially applied to the islands 
 owned by the United States. 
 
 4 Art. IV. Sec. 3, Cl. 1. 
 -'Art. I. Sec. 8, Cl. 11. 
 
 6 Art. IT. Sec. 2. Cl. 2. 
 
 7 To this government Georgia and Xorth Carolina later ceded their western 
 lands. 
 
 The act of Aupu>t 7. 17$0. was a- follows: 
 
 -An A'-t to I'r'n-irle for the Government of the Territory yorthieest of **e 
 Hirer Ohio: 
 
 "Whereas, in order that the ordinance of tho Fnit'-il States in Conprrww 
 assembled for the government of the territory northwest of the River Obio
 
 326 UNITED STATES CONSTITUTIONAL LAW. 
 
 It is not necessary in this place to trace the history of the part 
 played during the period preceding 1787 by the conflicting claims 
 of the colonies or States to the " back lands," and how Maryland 
 refused to sign the Articles of Confederation until all the States 
 should surrender these lands to the Congress for the joint benefit 
 of all the people of the States to be in proper time " parcelled out 
 by Congress into free convenient and independent States and 
 Governments," and how, finally, this was substantially done. 
 
 That the Congress of the Confederation had no constitutional 
 power to accept these cessions of territory is sufficiently plain, 8 
 but this was not questioned at the time, and in 1787 the ordi- 
 nance for the government of the Northwest Territories was 
 enacted. The Articles of Confederation did, however, provide 
 for the admission of new States, Article XI declaring that, 
 " Canada, acceding to this Confederation, and joining in the 
 measures of the United States, shall be admitted into, and entitled 
 to all the advantages of the Union; but no other colony shall be 
 admitted into the same, unless such "admission be agreed to by 
 nine States." 
 
 may continue to have full effect, it is requisite that certain provisions should 
 be made so as to adapt the same to the present Constitution of the United 
 States. 
 
 "Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That in all cases in 
 which by the said ordinance any information is to be given or communication 
 made by the Governor of said Territory to the United States in Congress 
 assembled, or to any of their officers, it shall be the duty of said Governor 
 to give such information and to make such communication to the President 
 of the United States, and the President shall nominate, and, by and with the 
 advice and consent of the Senate, shall appoint all officers which by said 
 ordinance were to have been appointed by the United States in Congress 
 assembled, and all officers so appointed shall be commissioned by him, and in 
 all cases where the United' States in Congress assembled might by the said 
 ordinance revoke any commission or remove from any office, the President i3 
 hereby declared to have the same power of revocation and removal. 
 
 " Section 2. And it is further enacted. That in case of the death, removal, 
 resignation or necessary absence of the Governor of said Territory, the secre- 
 tary thereof shall be and is hereby authorized and required to execute all the 
 powers and perform all the duties of the Governor during the vacancy 
 occasioned by the removal, resignation or necessary absence of said Governor." 
 
 8C/. Taney in Scott v. Sandford, 19 How. 393; 15 L. ed. 691.
 
 POWER OF UNITED STATES TO ACQUIRE TERRITORY. 327 
 
 In the Convention which framed the present Constitution the 
 Virginia resolutions declared ' that provision ought to be made 
 for the admission of States lawfully arising within the limits of 
 the United States whether from a voluntary juncture of govern- 
 ment, transitory or otherwise, with the consent of a number of 
 voices in the national legislature less than the whole." This was 
 agreed to without debate in the committee of the whole. As 
 reported by the Committee of Detail, the draft of the Constitu- 
 tion provided 9 that " new States lawfully constituted or estab- 
 lished within the limits of the United States may be admitted, by 
 the legislature into the government; but to such admission the 
 consent of two-thirds of the members present in each House shall 
 be necessary." 
 
 In the Convention, in order to cover certain conditions then 
 existing, especially the status of Vermont, this clause, after 
 repeated amendments, was finally made to read : " New States 
 may be admitted by the legislature into the Union; but no new 
 States shall be hereafter founded or erected within the jurisdic- 
 tion of any of the present States, without the consent of the legis- 
 lature of such State as well as of the general legislature." 
 
 As finally phrased by the Committee on Style and adopted by 
 the Convention the clause reads : " !New States may be admitted 
 by the Congress into this Union; but no new State shall be 
 founded 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." 
 
 During this course of evolution it will be seen that the limita- 
 tion " within the limits of the United States " disappeared. It 
 does not, however, appear from the debates just why these words 
 of limitation were omitted. From some expressions of opinion of 
 the time, there is, nevertheless, evidence that the possibility and 
 desirability of an expansion of the United States beyond the 
 limits fixed by the treaty of 1783, was early recognized by men 
 active in the framing and adoption of our present Constitution. 
 
 9 Art. XVII.
 
 328 UNITED STATES CONSTITUTIONAL LAW. 
 
 Alexander Hamilton, in a letter to Washington, wrote: " "We 
 must remain in a position to take advantage of circumstances, 
 we must be prepared to acquire Florida, and to annex Louisiana 
 and we must even wink further South." 
 
 And Gouverneur Morris, the author of that clause of the Con- 
 
 
 
 stitution which confers upon Congress the power to make rules 
 and regulations respecting territory and other property of the 
 United States, writing in 1803 to Livingston said : " I am 
 very certain that I had it not in contemplation to insert a decree 
 de coercendo imperio in the Constitution of America. Without 
 examining whether a limitation of territory be or be not essential 
 to the preservation of republican government, I am certain that 
 the country between the Mississippi and the Atlantic exceeds by 
 far the limits which prudence would assign, if in effect any limi- 
 tation be required. Another reason of equal weight must have 
 prevented me from thinking of such a clause. I knew as well 
 then as I do now that all Xorth America must at length be 
 annexed to us. Happy, indeed, if the lust of dominion stop 
 there." Writing again to Livingston., however, Morris said that 
 while he held that the L'nited States might acquire additional 
 territory, it could not create new States of the Ionian out of it. 
 He said.: " I perceive I mistook the drift of your inquiry, which 
 substantially is, whether Congress can admit, as a new State, 
 territory which did not belong to the Ignited States when the Con- 
 stitution was made. In my opinion they cannot. I .always 
 thought, when we should acquire Canada and Louisiana, it would 
 be proper to govern them as provinces and allow them no voice 
 in our councils. In Avording the third section of the fourth 
 article, I went as far as circumstances would permit to establish 
 the exclusion. Candor obliges me to add my belief that had it 
 been more pointedly expressed, a strong opposition would have 
 been made." 10 
 
 147. Annexation of Louisiana. Views of Jefferson. 
 
 When, in 1790, Xorth Carolina made a cession to the United 
 States of its title to western territory, this was accepted by Con- 
 
 10 Life and Writings (Sparks), III, 185, 192.
 
 i OF UNITED STATKS T> Ar^rnn-: TKKIUTORY. 329 
 
 gress iu the Act of April 2, 1790, without constitutional question. 
 This it will be observed, however, involved only a transfer of 
 title from a State to the Nation and not an annexation of terri- 
 tory foreign to the United States. The acquisition of the 
 Louisiana Territory was, however, of this latter character, and 
 Jetferson, then President, felt, and expressed, as we know, most 
 serious doubts as to the constitutionality of the act, though, irpon 
 grounds of political expediency, he urged that the treaty provid- 
 ing for it be ratified, and if necessary, a constitutional amend- 
 ment giving to the National Government the necessary power 
 IK. adopted. 11 
 
 11 Before the ratification of the treaty Jefferson wrote to John Dickinson as 
 follows : "The General Government has no powers but such as the Constitu- 
 tion gives it: ami it has not given it power of holding foreign territory, and 
 still less of incorporating it into the Union. An amendment of the Constitu- 
 tion seems necessary for this. In the meantime we must ratify and pay our 
 money, as we have treated for a thing beyond the Constitution and rely on 
 the. natun to sanction an act done for its great good without its previous 
 authority." 
 
 To John C. Breckenridge he wrote : " The Constitution has made no pro- 
 vision fi r holding foreign territory, still less for incorporating foreign nations 
 into our Union. The Executive, in seizing "the fugitive occurrence which so 
 much advances tin- good of their country, has done an act beyond the Con- 
 stitution. The Legislature, in casting behind them metaphysical subtleties 
 and risking themselves like faithful servants, must ratify and pay for it and 
 throw themselves on their country for doing for them unauthorized what we 
 know they would have done for themselves had they been in a situation to do 
 it. It is a case of a guardian investing the money of the ward in purchasing 
 an important adjacent turrit. >ry. ami saving to him when of age: 'I did this 
 for your good; I pretend to n<> right to bind you; you may disavow me and T 
 must get out of the scrape as best I can; I thought it my duty to risk myself 
 for you.' But we shall not be disavowed by the nation, and their act of 
 indemnity will confirm and not weaken the Constitution by more strongly 
 marking its lines." 
 
 Writing to William C'. Nicholson before the ratification of the Louisiana 
 treaty he said: "Whatever Congress shall think beet to do should be done 
 with as little debate a~ pu-sible. and particularly a< far as respects the con 
 stitutional difficulty. I am aware of the force of the observations you make 
 on the power giv^n by the Constitution to Congress to admit new States into 
 the Union without retraining the subject to the territory then constituting 
 the United State-. I'.nt when T consider that the limits of the United States 
 are precisely fixed by the treaty of 1783: that the Constitution expressly 
 declares itself to be made for the United States, I cannot help believing that
 
 330 UNITED STATES CONSTITUTIONAL LAW. 
 
 Though not perfectly clear upon the point, it would seem that 
 Jefferson drew a distinction between the constitutional power of 
 the touted States to extend its sovereignty over additional terri- 
 tory and to " incorporate " it in the United States as a part 
 thereof; and that his constitutional qualms were excited rather 
 by the exercise of the latter power than of the former. In answer 
 to a letter of Gallatin he wrote (January, 1803) : " There is no 
 constitutional difficulty as to the acquisition of territory, and 
 whether when acquired it may be taken into the Union by the 
 Constitution as it now stands will become a question of expe- 
 diency. I think it will be safer not to permit the enlargement 
 of the Union but by the amendment of the Constitution." 
 
 In the first of the drafts of a constitutional amendment which, 
 for this purpose, Jefferson drew up, it was provided that, " The 
 Province of Louisiana is incorporated with the United States 
 and made a part thereof." The second draft provided that, 
 " Louisiana as ceded by France to the United States is made a 
 part of the United States. Its white inhabitants shall be citizens 
 and stand, as to their rights and -obligations, on the same footing 
 with the citizens of the United States in analogous situations." 
 
 The question of the annexation of territory without " incor- 
 poration " into the United States will be discussed in Chapters 
 XXIX and XXX. 
 
 Jefferson stood by no means alone in his doubts as to the con- 
 stitutional power of the United States to annex and incorporate 
 
 the- intention was to permit 'Congress to admit into the Union new States 
 which should be formed out of the territory for which and under whose 
 authority alone they were acting. I do not believe it was meant that they 
 might receive England, Holland, Ireland, etc., into it, \vhich would be the 
 case in your construction. When an instrument admits of two constructions, 
 one safe and the other dangerous, the one precise, the other indefinite, I prefer 
 that which is safe and precise. I had rather risk enlargement of power from 
 the nation where it is found necessary than to assume it by a construction 
 which makes our powers boundless." 
 
 12 For other declarations of Jefferson upon this point, and a review of the 
 debates in Congress concerning the Louisiana purchase, see Downes v. Bidwell, 
 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 108S, and the argument of 
 the Attorney-General in Goetze v. United States, The Insular Cases, H. R. 
 Doc., 509, 56th Cong., 2d Sess., pp. 152 et seq.
 
 POWER OF UNITED STATES TO ACQUIRE TERRITORY. 331 
 
 Louisiana, but these doubts were not sufficiently general to lead 
 the people to give expressly by constitutional amendment that 
 right, the implied existence of which was questioned. 13 
 
 With regard to deriving the power to annex from the power to 
 admit new States, it may be observed that not only is reference 
 to this source for authority unnecessary, but, when appealed to, 
 would not seem to yield to the Xational Government as ample 
 powers as are furnished it when the treaty and war powers are 
 relied upon. 14 
 
 It may further be observed that when recourse is had to the 
 power to admit new States for the authority to annex foreign 
 
 is In the debates attendant upon the annexation of Texas, Choate in the 
 Senate and Winthrop, Brangle, and Barnard in the House argued that the 
 United States was without constitutional authority to annex foreign territory 
 (Cong. Globe, 23th Cong., 2d Sess.). In 1838 when the annexation of Texas 
 tvas being agitated, J. Q. Adams in the House of Representatives offered the 
 following resolution : " Resolved, that the power of annexing the people of 
 any independent foreign State to the Union is a power not delegated by the 
 Constitution of the United States to their Congress, or to any department of 
 the government, but reserved by the people. That any attempt by act of 
 Congress or by treaty would be a usurpation of power, unlawful and void, 
 and which it would be the right and the duty of the free people of the Union 
 to resist and avoid." 
 
 Continuing, he declared, that, if annexed, it would be such a violation of 
 the national compact as " not only inevitably to result in a dissolution 
 of the Union, but fully to justify it, and we not only assert that the people 
 of the free States ought not to submit to it, but we say with confidence that 
 they would not submit to it." Many Southerners, on the other hand, asserted 
 that if Texas were not admitted, they would destroy the Union. 
 
 i* " If it [the power of annexation] is to be implied only from the latter 
 power [the right to admit new States], it would seem quite reasonable to 
 hold that it could be exercised in any case only for the purpose of creating 
 a new State out of the acquired territory, and there would be no power to 
 govern it except for that purpose, but the right of Congress to admit the 
 acquired territory as a State or States, or to refuse to do so, according 
 to its own judgment and discretion, is universally admitted, and, therefore, 
 it would seem to follow that the power to acquire and govern cannot be 
 derived from the power to admit, for, if it did, all territory acquired by either 
 of the methods stated would have to be converted into a State or States. It 
 may lie said that no territory ought to be acquired which cannot be ultimately 
 fitted for admission as a State or States but this is a political and not a 
 judicial question." Address of John G. Carlisle before the American Bar 
 Association, 1902.
 
 332 UNITED STATES CONSTITUTIONAL LAW. 
 
 territory considerable support is given to the position that, in 
 exercising it, the consent of the other States should be obtained. 
 Thus at the time of the debate in Congress over the purchase of 
 Louisiana, Pickering, who did not deny the right of the United 
 States to acquire new territory by conquest or purchase to ba held 
 and governed as dependent territory, denied that territory could 
 be annexed with the pledge that it should be divided up and 
 admitted as States into the Union, unless the consent of the 
 copartner States were obtained. Griswold took much the same 
 view. He contended that " the L^nion of the States was- formed 
 on the principles of a copartnership, and it would be absurd to 
 suppose that the agents of the parties who have been appointed to 
 execute the business of the compact, could admit a new partner 
 without the consent of the parties themselves." Io 
 
 148. Territories as Embryo States. 
 
 There can be no question but that it was the general intention 
 at the time that the Constitution was adopted that all the terri- 
 tory then under the sovereignty of the United States and not 
 included within the limits of any one of the then several States 
 should ultimately be divided up and admitted as States into the 
 Union. 
 
 It will be remembered that the Ordinance for the government 
 of the Northwest Territory provided that " There shall be 
 formed in the said territory not less than three nor more than 
 five States. . . . And . . . such State shall be admitted 
 . . . on an equal footing with the original States, in all respects 
 whatever; and shall be at liberty to form a permanent Constitu- 
 tion and state government. 16 
 
 The treaty which provided for the cession of Louisiana to the 
 United States declared that " The inhabitants of the ceded 
 territory shall be incorporated into the Union of the United 
 States and admitted as soon as possible according to the principles 
 of the federal Constitution to the enjoyment of all the rights, 
 
 is Annals of Cong. 1803-4, p. 461. 
 is Art. 5.
 
 POWER OF UXITED STATES TO ACQUIRE TERRITORY. 333 
 
 advantages, and immunities of the citizens of the United 
 States." 1T 
 
 In the treaty with. Spain which confirmed the title of the United 
 States to the Floridas the United States promised that " The 
 inhabitants of the territories . . . shall be incorporated in 
 the Union of the United States as soon as it may be consistent 
 with the principles of the Federal Constitution and admitted to 
 the enjoyment of all the privileges, rights, and immunities of the 
 citizens of the United States." 18 
 
 In the treaty of 1848 with Mexico whereby Mexico relinquished 
 its rights to Upper California and Xew Mexico the United States 
 promised that " The Mexicans who, in the territories afore- 
 said, shall not preserve the character of citizens of the Mexican 
 Republic conformably with what is stipulated in the preceding 
 article, shall be incorporated in the Union of the United States 
 and to be admitted at the proper time (to be judged of by the 
 Congress of the United States) to the enjoyment of all the rights 
 of citizens of the United States according to the principles of the 
 Constitution." 10 
 
 In the treaty with Russia for the cession of Alaska the United 
 States agreed that "The inhabitants of the ceded territory 
 . . . should be admitted to the enjoyment of all the rights, 
 advantages and immunities -of citizens of the United States." 20 
 
 In the provisions of all of these several treaties there is thus 
 to be recognized the presence of the idea in the minds of those 
 who framed and ratified them that the territories thus acquired 
 were to be incorporated as integral elements in the United States 
 and ultimately to be erected into States and admitted into the 
 Union in full and equal fellowship with the original States. The 
 consideration which led the ceding nations to have these promises 
 inserted in the treaties of cession was the same which urges all 
 nations in parting with portions of their territories and their 
 inhabitants to provide, as far as possible, that their former citi- 
 
 n S Stat. at L. 202. 
 188 Stat. at L. 25(1. 
 199 Stat. at L. 030. 
 20 15 Stat. at L. 542.
 
 334 UNITED STATES CONSTITUTIONAL LAW. 
 
 zens thus handed over to the control of a foreign power, shall not 
 be oppressed but be treated on an equality with the other citizens 
 of the annexing State. 
 
 Down to the time of the war of 1898 with Spain we find 
 repeated utterances of .public men and of the courts that all of 
 the territories of the United States, originally owned and acquired, 
 not already States, were destined for that status. 21 Senator Hoar, 
 indeed, declared in the Senate when the future of the Philippine 
 Islands was being discussed, " I have been unable to find a single 
 reputable authority more than twelve months old, for the power 
 now claimed for Congress to govern dependent nations or terri- 
 tories not expected to become States. The contrary, until this 
 war broke out, has been taken as too clear for reasonable ques- 
 tion." 
 
 In support of the view that the holding permanently of terri- 
 tory not destined for statehood is foreign to, and not compatible 
 with, our principles of government, the declarations of Jefferson, 
 Madison, Monroe, J. Q. Adams, Webster, Calhoun, Clay, Keverdy 
 Johnson, Berrien, Edward Everett, Seward, and Sumner have 
 been quoted ; and, of course, if Senator Hoar's statement be cor- 
 rect, this list might be almost indefinitely extended. 
 
 149. Judicial Dicta. Taney's Views. 
 
 A certain number of dicta of the Supreme Court of the United 
 States may also be found in which the language indicates an 
 accepted assumption that the territories held by the United States 
 were all ultimately to be erected into States. Thus in Lough- 
 borough v. Blake, 22 Marshall, after referring to the attempt of 
 Great Britain to tax her American colonies, said : " The differ- 
 ence between requiring a continent with an immense population 
 to submit to be taxed by a government having no common interest 
 with it, separated from it by a vast ocean and associated with it 
 by no common feelings, and permitting the representatives of the 
 
 21 Alaska may be treated as an exception. This area, at the time of its 
 annexation, had a very small population and it was not expected that this 
 population would increase. 
 
 225 Wh. 317; 5 L. ed. 98.
 
 POWER OF UNITED STATES TO ACQUIRE TERRITORY. 335 
 
 American people, under the restrictions of our Constitution, to 
 tax a part of the society, which is in a state of infancy, advancing 
 to manhood, looking forward to complete equality as soon as that 
 state of manhood shall be attained, as is the case with the Terri- 
 tories, is too obvious not to present itself to the minds of all." 
 
 Thus also, in Shively v. Bowlby, 23 the court said, " The Terri- 
 tories acquired by Congress whether by deed or cession from the 
 original States, or by treaty with a foreign country, are held with 
 the object, as soon as their population and condition justify, of 
 being admitted into the Union as States upon an equal footing 
 with the original States in all respects ; and the title and dominion 
 of the tidewaters and the lands under them are held by the United 
 States for the benefit of the whole people, and, as this Court has 
 often said, in trust for the future States. . . . Upon the 
 acquisition of a Territory by the United States, whether by ces- 
 sion from one of the States or by treaty with a foreign country, 
 or by discovery and settlement, the same title and dominion passed 
 to the United States for the benefit of the whole people and in 
 trust for the several States to be ultimately created out of the 
 Territory/' 
 
 Chief Justice Taney has often been cited as holding in his 
 opinion in the Dred Scott case that foreign territory might be 
 acquired by the United States only under its power to admit new 
 States. This is not correct. In Fleming v. Page,- 4 he had already 
 expressly declared that foreign territory might be acquired under 
 the treaty and war-making powers, and in the Dred Scott 
 case, approves, upon this point, the decision of Marshall 
 in American Insurance Co. v. Canter. 25 He asserts, however, 
 that these powers are to be exercised only for the purpose 
 of acquiring territories that ultimately may become States, 
 and that, when acquired, they are to be governed with this end 
 in view, namely, of preparing them for this status. It is thus 
 apparent that the constitutional limitation which, in this case, 
 Taney is intent upon emphasizing, is rather one upon the con- 
 
 23152 U. S. 1; 14 Sup. Ct. Rep. 548; 38 L. ed. 331. 
 
 2*9 How. 603. 
 
 1 Pet. 511; 7 L. ed. 242.
 
 336 UNITED STATES CONSTITUTIONAL LAW. 
 
 trol of Congress over territories that have been annexed, than 
 upon the power of the General Government to acquire them. In 
 his opinion he says : " There is certainly no power given by the 
 Constitution to the Federal Government, to establish or maintain 
 colonies bordering on the United States or at a distance, to be ruled 
 and governed at its own pleasure, nor to enlarge its territorial 
 limits in any way except by the admission of new States. That 
 .power is plainly given, and if a new State is admitted it needs no 
 further legislation by Congress, because the Constitution itself 
 defines the relative rights and powers and duties of the State and 
 the citizens of the State and the Federal Government. But no 
 power is given to acquire a territory to be held and governed 
 permanently in that character. And, indeed, the power exercised 
 by Congress to acquire territory and establish a government there 
 according to its own unlimited discretion was viewed with great 
 jealousy by the leading statesmen of the da>p. . . . We do not 
 mean, however, to question the power of Congress in this respect. 
 The power to expand the territory of the United States by the 
 admission of new States is plainly given, and in the construction 
 of this power by all the departments of the Government it has 
 been held to authorize' the acquisition of a territory not fit for 
 admission at the time, but to be admitted as soon as its popula- 
 tion would entitle it to admission. It is acquired to become a 
 State, and not to be held as a colony and governed by Congress 
 with absolute authority; and as the propriety of admitting a new 
 State is committed to the sound discretion of Congress, the power 
 to acquire territory for that purpose, to be held by the United 
 States until it is- in a suitable condition to become a State upon 
 an equal footing with the other States, must rest upon the same 
 discretion." 
 
 So, likewise, it will be found that the various opinions delivered 
 in this case by the other members of the court, concurring and 
 dissenting, are concerned rather with the limitations of the powers 
 of government of annexed territory, than with the extent of the 
 power to acquire. We shall consider this phase of the question 
 in another chapter.
 
 POWER OF UNITED STATES TO Aoji'iiiK TEBHITORY. GOT 
 
 150. Conclusions. 
 
 Concerning the validity of this claim that tlie Constitution 
 looks to a Union composed only of States and potential States, 
 this much may be granted: Beyond all reasonable doubt those 
 who framed and adopted rhe federal Constitution did not antici- 
 pate, and therefore cannot be said deliberately to have provided 
 for, the time when the United States should extend its sovereignty 
 over territories not intended ultimately for statehood. Xor can 
 it be said that a. different view was held upon this point by 
 practically any one until comparatively recent times. But in 
 admitting this, the conclusion that the annexation of such terri- 
 tory was an unconstitutional act does not follow. For in the 
 first place, as has been repeatedly declared by the Supreme Court, 
 it is not enough to say that a particular case was not in the minds 
 of those who framed and adopted the Constitution in order to 
 hold an act unconstitutional. One must go further and show that 
 had the particular case been suggested to those framers and 
 adopters of the Constitution, they would so have modified its 
 language as to exclude it. 26 In the second place, even were this 
 principle of constitutional construction not sufficiently broad to 
 uphold the federal power in question, there would be applicable 
 two principles, each of which would prevent the Supreme Court 
 from pacing upon this point. The first of these principles is the 
 one el K> where mentioned that the question of de facto and de jure 
 reignty is one regarding which the courts hold themselves 
 1). und by the determination of the executive and legislative 
 branches of government; the second is that the motive of an act, 
 except for the purpose of solving an ambiguity in its application, 
 is not a .proper subject for judicial examination, and that, there- 
 fore, in the case of an annexation of territory, it would not be 
 proper for the court to seek to leani whether or not ultimate 
 
 -> " The case being within the words of the rale, must be within its opera- 
 tions likewise, unless there be something within its literal construction 
 io obviously absurd or mischievous, or repugnant to the general spirit of 
 that instrument as to justify those who expounded the Constitution in 
 making it an exception." Dartmouth College v. Woodward, 4 \Vh. 518; 4 
 1,. i-d. 02U. 
 
 22
 
 338 UNITED STATES CONSTITUTIONAL LAW. 
 
 statehood was intended to be granted the lands and peoples ob- 
 tained. Indeed, as we have seen, as regards the contiguous con- 
 tinental territories of the United States, it has been uniformly 
 held that the grant to them of statehood lies wholly within the 
 discretion of Congress, and that no legal means exist for com- 
 pelling action should that body arbitrarily refuse for an indefinite 
 length of time to grant this privilege to a deserving territory. 
 
 The question whether or not territory not contiguous to the 
 other territory of the United 'States may be annexed is very 
 similar to the one just discussed and may be answered in much 
 the same manner. For this purpose we may borrow the words of 
 the report of the Committee favoring the annexation of Hawaii: 
 " The fact that territory is contiguous or noncontiguous is to be 
 considered in reference to the policy or expediency of annexation, 
 but it is submitted that both on principle and precedent there is 
 all the constitutional power necessary to accomplish annexation 
 in any case where annexation is deemed to be to the interest of this 
 country. The fact that territory is contiguous or noncontiguous 
 can have no bearing upon the constitutionality of its acquisition ; 
 but simply goes to affect the value of the territory proposed to be 
 annexed. On general principles, if it is contiguous, it is more 
 easily governed and defended. But whether this is so or not 
 depends upon circumstances. In these days distance is not a 
 matter of miles, but of hours. When California was annexed it 
 was two months distant from the centre of civilization in the 
 United States. Honolulu to-day lies only ten and a half days 
 from Washington. As to the arguments presented in favor of 
 the unconstitutionality of the annexation of noncontiguous terri- 
 tory, it is submitted that because our forefathers of 1776 did not 
 discuss or contemplate any given proposition is no reason, con- 
 stitutional or otherwise, why their children should not discuss 
 and contemplate any and every problem which is presented to 
 them in 1897 upon its merits, whether their ancestors ever heard 
 of such subject or not. It is further submitted that the precedents 
 in United States history are all against the unconstitutionality of 
 the annexation of noncontiguous territory. Alaska is separated
 
 POWER OF UNITED STATES TO ACQUIRE TERRITORY. 339 
 
 from the United States by a vast foreign territory. Midway 
 Island is approximately three thousand miles from the American 
 coast The Aleutian Islands, reaching almost to the Asiatic coast, 
 extend twelve hundred miles west of Alaska, and the guano 
 islands are scattered all over the Pacific and the Caribbean 
 Sea." 27 
 
 151. The Right to Annex Based on the Treaty and War- 
 Making Powers. 
 
 As has been incidentally indicated in the preceding pages, the 
 Supreme Court has held that whether or not the right to admit 
 States into the Union carries with it the power to acquire new 
 territory, this power is derivable from the authority of the Gen- 
 eral Government to declare and carry on war, and to enter into 
 treaties. This it has repeatedly declared, both in earlier cases 
 and in the recent so-called Insular Cases. 
 
 In American Insurance Co. v. Canter 28 Marshall says, without, 
 apparently, deeming an argument necessary : " The Constitution 
 confers absolutely upon the government of the Union the power 
 of making war and of making treaties ; consequently that govern- 
 ment possesses the power of acquiring territory, either by conquest 
 or treaty." In Fleming v. Page 29 Taney says : " The United 
 States . . . may extend its boundaries by conquest or treaty, 
 and may demand the cession of territory as the condition of 
 peace, in order to indemnify its citizens for the injuries they 
 have suffered, or to reimburse the government for the expenses 
 of the war."" In Stewart v. Kahn, 30 the court say: "The war 
 power and the treaty-making power each carries with it authority 
 to acquire new territory." And in United States v. Huckabee 31 
 it is declared : " Power to acquire territory either by conquest 
 or treaty is vested by the Constitution in the United States." 
 
 27 Sen. Rpt. 681. 55th Cong., 2d Sess., pp. 47, 48. 
 281 Pet. 511; 7 L. ed. 242. 
 209 How. 603; 13 L. ed. 276. 
 3011 Wall. 403; 20 L. ed. 176. 
 31 16 Wall. 414; 21 L. ed. 4f>7.
 
 340 UNITED STATES CONSTITUTIONAL LAW. 
 
 It ia to be observed that in none of these cases is there any 
 argument to show jiist why, and in what manner,, the acquiring 
 of the foreign territory ia a necessary or proper means by which 
 war may be carried on y or treaties entered into. In fact it will 
 be seen that the acquiring of foreign territory has been treated 
 as a result incidental to, rather than as a means for, the carrying 
 on of war and the conducting of foreign relations. 
 
 This leads us to the consideration of the doctrine which, con- 
 stitutionally speaking, appeals to the author as the soundest mode 
 of sustaining the power of the United States to acquire territory, 
 as well as the one which, in application, affords the freest scope 
 for its exercise. According to this doctrine, the right to acquire 
 territory is to be searched for not as implied in the power to 
 admit new States into the Union, or as dependent specifically 
 upon the war and treaty powers, but as derived from the fact 
 that in all relations governed by the principles of International 
 Law the General Government may properly be construed to have, 
 in the absence of express prohibitions, all the powers possessed 
 generally by States of the World. This doctrine thus is that the 
 control of foreign relations being exclusively vested in the United 
 States, that government has in the exercise of this jurisdiction 
 the same power to annex foreign territory that is possessed by 
 other sovereign States. The argument in support of this doc- 
 trine has already been given in Section 36 of this treatise. 
 
 In one instance at least, the L^iiited States has acquired terri- 
 tory under an authority which could not be, and was not alleged 
 to be, derived from the treaty-making power or from any other 
 specific express power, --but was upheld by the Supreme Court as 
 based upon the general sovereignty of the nation in all that falls 
 within the field governed by international law. 
 
 In 1856 Congress, by a statute which was re-enacted in the 
 Revised Statutes, declares that whenever any citizen of the United 
 States shall discover a deposit of guano on any island, rock, or 
 key not within the lawful jurisdiction of any other government, 
 and shall take possession thereof, such island, rock, or key may, 
 at the discretion of the President, " be considered as appertaining
 
 POWEK OF UNITED STATES TO ACQUIRE TEKRITORY. 
 
 to the United States.'' Furthermore, the act goes on to declare 
 all crimes committed 011 such island, rock, or key to be punishable 
 according to United States law in the federal courts. Upon one 
 J<>nes being convicted of murder under the provisions of lire 
 statute he took an appeal to the Supreme Court upon the ground 
 that the federal law and federal court could not take cognizance 
 of acts committed on the island in question, because that island 
 was not constitutionally a part of the United States. In over- 
 ruling this plea the Supreme Court spoke as follows: "By the 
 law of nations, recognized by all civilized States, dominion of 
 new territory may be acquired by discovery and occupation, as 
 well as by cession or conquest; and when citizens or subjects of 
 one nation, in its name and by its authority or with its assent, 
 take and hold actual, continuous, and useful possession (although 
 only for the purpose of carrying on a particular business, as catch- 
 ing and curing fish, .or working mines) of territory unoccupied 
 by any other government or its citizens, the nation to -which they 
 belong may exercise such jurisdiction and for such period as it 
 fit over territory so acquired. This principle affords ample 
 warrant for the legislation of Congress concerning Guano Island. 
 . . . Who is the sovereign, de jure or dc f f <rio } of a territory 
 is not a judicial, but a political question, the determination of 
 which by the legislative and executive departments of any gwern- 
 ment conclusively binds the judges, as well as all other <*ffkers, 
 citizens, and subjects of that government. This principle has 
 always been upheld by this court, and has been affirmed undex 
 a great variety of circumstances." " 2 
 
 This case thus not only practically upheld the right of the 
 United States to acquire territory by discovery and occupation, 
 but applied the principle that the United States may exercise * 
 power not enumer:it< <\ in the Constitution, provided it bo an inter- 
 national powi r generally possessed by -ovrrcign Sia 
 
 v. United States. 137 V. S. 20-2: 11 Snp. ft. "Rep. SO : 34 T,. ed. 691. 
 A clear statement of the power erf the United States to annex territory 
 because of it national s.nvivijmty \v- made by Senator Foraker, in the 
 United Statr* Senate July 1. 1898. in a donate with reference to the an- 
 nexation of Hawaii. Speaking of the original thirteen States before they
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 152. Power of the United States to Alienate Territory. 
 
 The subject will be discussed in Chapter XXXV of this treatise. 
 
 came into the Union, he said: "Each one of those sovereign States had 
 every power that sovereignty enjoys ordinarily, and among the powers so 
 enjoyed by each one of the sovereign States was the power to make treaties 
 with foreign nations, and any kind of a treaty it might choose to make, 
 because there was no restriction unless by itself upon the exercise of that 
 power. It could make war; it could make a treaty for the acquisition of 
 territory; it could annex in any way it saw fit to annex. But, Mr. President, 
 no Senator will contend here that any State in this Union has that power 
 now.* That power has been lost to each and every State of the Union. As 
 the price for coming into the Union, it was required to surrender it. The 
 Constitution of the United States prohibits to the States the exercise of the 
 treaty-making power with foreign nations. It prohibits all kinds of trans- 
 actions on the part of States with foreign nations. No State could acquire 
 territory by treaty in any other manner. Therefore each one of the States 
 in the Union has surrendered that power of sovereignty. No one of them 
 has it. Are we to be told that that inherent power of sovereignty, which 
 every State enjoyed before it came into the Union, has been lest to the States 
 and has not been given to any other power? What has become of it? Where 
 has it gone? Our contention is that when to the States was denied this 
 power, which they had a right to exercise as a sovereign power, it went by 
 implication to the General Government among the implied powers, and it 
 is not any " higher law." It seems to me it is but the necessary and legiti- 
 mate result of a fair construction of the provisions of the Constitution." 
 
 This theory has been declared by several publicists, and in a number of 
 obiter dicta, of the Supreme Court. Thus Magoon in his Report to the 
 War Department on the " Legal Status of the Territory and Inhabitants of 
 the Islands Acquired by the United States During the War with Spain," says: 
 "The United States derives the right to acquire territory from the fact that 
 it is a nation; to speak more definitely, a sovereign nation. Such a nation 
 has an inherent right to acquire territory, similar to the inherent right of 
 a person to acquire property." So also Mr. Charles A. Gardner declares: 
 " The nation needs no express grant of power for any international act. . . . 
 The right to acquire territory irrespective of its situs, contiguous or foreign, 
 by conquest, treaty, purchase or discovery, is an acknowledged and well 
 established attribute of sovereignty and has been exercised by sovereigns from 
 the beginning of recorded history. No one pretends that the right is specifi- 
 cally enumerated in the Constitution. Hence it remains an attribute of the 
 sovereign people, and Congress and the President, the sole agents and trus- 
 tees of that sovereignty, have exclusive and unrestricted power to exercise 
 it. I advance the proposition with deference that this right is itself a 
 primary and substantive attribute of sovereignty, as is the right of national 
 existence or self-defence; and I shall regard it in this discussion as the 
 primary and fundamental authority for territorial expansion." (Pamphlet 
 entitled " Our Right to Acquire and Hold Foreign Territory." Published 1899.)
 
 POWER OF UNITED STATES TO ACQUIRE TERRITORY. 343 
 
 For an excellent argument for the support of the position here taken see 
 also the prize essay of Mr. \V. H. Bikle, entitled '' The Constitutional Power 
 of Congress Over the Territory of the United States," and published as a 
 supplement to the American Law Register for August, 1901. See also Butler, 
 " The Treaty -Making Power of the United States." Butler declares his 
 opinion to be: ''That the treaty-making power of the United States, as 
 vested in the Central Government, is derived not only from the powers ex- 
 pressly conferred by the Constitution, but that it is also possessed by that 
 g.veinnu'iit as an attribute of sovereignty, and that it extends to every 
 subject which can be made the basis of negotiation and contract between 
 ar.y of the sovereign powers of the world, or in regard to which the several 
 States of the Union themselves could have negotiated and contracted if the 
 C( n-titution had not expressly prohibited the States from exercising the 
 treaty-making power in any matter whatever and vested that power ex- 
 clusively in, and expressly delegated it to, the Federal Government."
 
 CHAPTER XXIII. 
 
 THE MODES IX WHICH, AXD PURPOSES FOR WHICH, TERRITORY 
 MAY BE ACQLTRED BY THE UNITED STATES. 
 
 153. Constitutional Modes of Acquiring Territory. 
 
 Having shown the constitutional power of the United States 
 to acquire territory whether by treaty, conquest, or discovery and 
 occupation, we now approach the question as to the modes by 
 which this federal authority may be exercised. 
 
 A history of the territorial expansion of the United States 
 shows that territories have been annexed in three different ways: 
 (1) by statute, (2) by treaty, and (3) by joint resolution. 
 
 The process of extending American sovereignty by simple 
 statute and executive action authorized thereby was illustrated, 
 as we have just seen, in the case of the Guano Islands. The 
 annexation of territory by treaty has been the method most usually 
 employed. The Louisiana Territory, Florida, Alaska, the Mexi- 
 can cessions, the Samoan Islands, Porto Rico, and the Philippines 
 were obtained in this manner. The constitutionality of this mode 
 of acquisition has already been discussed. 
 
 154. Annexation by Joint Resolution. 
 
 In two instances, that of Texas in 1845, and Hawaii in 1898, 
 the sovereignty of the United States has been extended over new 
 territory by means of a Joint Resolution of the Houses of Con- 
 gress. In the case of Texas an attempt had been made to annex 
 the State by treaty, but this effort, requiring a two-thirds favor- 
 able vote in the Senate, had failed. Thereupon the same end 
 was secured by a Joint Resolution which needed but a simple 
 majority vote in each of the two branches of the national legis- 
 lature, with, of course, the approval of the President. This reso- 
 lution provided that " Congress doth consent that the territory 
 properly included within and rightfully belonging to the Republic 
 of Texas may be erected into a new State to be called the State 
 
 [344]
 
 MODES AXD PURPOSES FOE ACQUIRING TERRITORY. 34:5 
 
 of Texas with a republican form of government to be adopted by 
 the people of said republic, by deputies in convention assembled, 
 with, the consent of the existing 1 government, in order that the 
 same may be admitted as one of the States of tlie Union." Upon 
 Tt'xa.-5 taking the action called for by this clause, Congress latex 
 by .Joint Resolution declared Texas one of .the States of the Ameri- 
 can Union. 
 
 The peculiarity of the annexation of this State was not simply 
 that it came under American sovereignty by Joint Resolution 
 but that it became at once one of the States of the Union, and 
 thus never had the transitional territorial status. This fact, 
 indeed, gave additional constitutional support to the action of 
 Congress in the matter, for to that body is given by the Constitu- 
 tion the right to admit new States into the Union, and, therefore, 
 its admission of Texas to fellowship with other American com- 
 monwealths might easily be construed as a legitimate exercise of 
 that power. 
 
 The acquisition of the Hawaiian Islands was another instance 
 of the extension of the United States sovereignty by a simple 
 Joint Resolution of the two branches of Congress. In this case, 
 however, the islands were not, as was Texas, admitted as a State 
 or States of the Union, but .were simply annexed as a territory. 
 
 The constitutionality of the annexation of Hawaii, by a simple 
 legislative act, was strenuously contested at the time both in Con- 
 gress and by the press. The right to annex by treaty was not 
 denied, but it was denied that thi* might be done by a simple 
 legislative act. The incorporation of one sovereign State, such as 
 was Hawaii prior to annexation, in the territory of another, is, 
 it was argued, essentially a matter falling within the domain of 
 international relations, and. therefore, beyond the reach of legis- 
 lative acts. Only by means" of treaties, it was asserted, can the 
 relations between Stale- be -rovenu !, for a legislative act is neces- 
 sarily without extraterritorial force confined in its operation 
 to the territory of the State by whose legislature it is enacted. To 
 meet this point Senator Furaki-r argued that though a treaty 
 may be the proper mode for annexing a portion of the territory
 
 346 UNITED STATES CONSTITUTIONAL LAW. 
 
 of another State, it is inappropriate when an entire Slate is 
 annexed by another. . " I agree," he said, " with Senators on the 
 other side that a treaty is a contract that has been your con- 
 tention throughout until the treaty has been signed on both 
 sides. The very minute that is done one of the parties is gone, 
 and there is no continuing contract. Therefore it is simply a 
 cession on their part and an acceptance on ours, and it might be 
 done just as well by legislation as otherwise." 
 
 In the report made March 16, 1898, by the Senate Committee 
 on Foreign Relations 1 in favor of the Joint Resolution of Annexa- 
 tion, the annexation of Texas was cited as a precedent and in 
 addition the assertion made that for annexation the consent of 
 the government of the annexed territory is needed but not, neces- 
 sarily, that of its populace. 2 
 
 1 Senate Report 681, 55th Cong., 2d Sess. 
 
 2 " This Joint Resolution [annexing Texas]," the Committee declare " clearly 
 establishes the precedent that Congress has the power to annex a foreign 
 State to the territory of the United States, either by assenting to a treaty 
 of annexation or by agreeing to articles of annexation or by act of Congress 
 based upon the consent of such foreign government obtained in any au- 
 thentic way. No exercise of power could be more supreme than that under 
 which Texas was annexed to the United States, either as to its scope or 
 the manner of the annexation or the choice of conditions upon which Congress 
 would merge the sovereignty of an independent republic into the supremacy 
 of the United States. The act also establishes the fact that a treaty with 
 a foreign State which declares the consent of such State to be annexed tc 
 the United States, although it is rejected by the Senate of the United States, 
 is a sufficient expression and authentication of the consent of such foreign 
 State to authorize Congress to enact a law providing for annexation, which, 
 when complied with, is effectual without further legislation, to merge the 
 sovereignty of such independent State into a new and different relation to 
 the United States and toward its own people. It further establishes the 
 fact that Congress, in legislating upon the question of the annexation of a 
 foreign State, rightfully acts upon the consent of such State, as the sovereign 
 representative of its people, and that the power of Congress to complete 
 the annexation of such foreign State depends alone upon the sovereign will and 
 consent of such State, given and expressed through its organized tribunals. 
 It further establishes the fact that Congress cannot acquire the right or 
 jurisdiction to annex a foreign and independent State through a vote of a 
 majority of its people, in opposition to the will of its constituted au- 
 thorities. It is the constitutional power of Congress that operates to annex 
 foreign territory. Such a proceeding on the part of Congress as the sub-
 
 MODES AXD PUBPOSES FOR ACQUIRING TERRITORY. 347 
 
 The assertions here made by the Committee that the annexation^, 
 of Texas constituted a precedent for annexation by legislative act, 
 the consent of the constituted governmental authorities of the 
 annexed territory being obtained, is open to question. For it 
 it will be remembered that Texas was admitted directly into the 
 Union as a State, and, therefore, its admission could be upheld 
 as an exercise of the power given to Congress and the President 
 to admit new States into the Union. 
 
 155. Consent of Inhabitants of Annexed Territory not Re- 
 quired. 
 
 As to the question whether it be necessary to obtain the con- 
 sent of the inhabitants of the territories to be annexed, it may 
 be said that this is, or may be, a matter of justice and political 
 expediency but not of legal necessity. The act of annexation 
 being, ex hypothesi, legislative, its legal force is derived from 
 the body which enacts it, and it would be an error to hold its legal 
 force necessarily dependent upon a consent obtained from some 
 other source. There would, of course, be no legal objection to 
 Congress providing, should it see fit, that the going into effect of 
 an act of annexation should be dependent upon its approval by 
 the inhabitants of the territory to be annexed, just as in its 
 " enabling acts " for the admission of Territories as States, or 
 in many of its acts with reference to the Indians, it provides that 
 t^e consent of those directly concerned shall be obtained. But 
 this is not a matter of legal necessity. It is not a division or a 
 delegation of legislative power, either of which would be neces- 
 sarily unconstitutional. 
 
 mission of the question to vote of the people of such a State would only 
 create disorder and revolution in a foreign State applying through its con- 
 stituted authorities for admission into ttfe United States. This important, 
 clear, and far-reaching precedent established in the annexation of the 
 Republic of Texas is a sufficient guide for the action of Congress in the 
 passage of the Joint Resolution herewith reported. If, in the judgment of 
 Congress, such a measure is supported by a safe and wise policy, or is baaed 
 upon a national duty that we owe to the people of Hawaii, or is necessary 
 for our national development and security, that is enough to justify annexa- 
 tion, with the consent of the recognized government of the country to be 
 annexed."
 
 348 UXITED STATES CONSTITUTIONAL LAW. 
 
 Xor is there any principle of public law, or general precedent 
 from our own practice that requires the consent of the population 
 of an annexed territory to be obtained. In none of the instances, 
 except that of Texas, has the United States deemed this consent 
 necessary. 3 
 
 As we shall later see, it is quite usual to provide in treaties of 
 annexation that the people of the territories transferred shall have 
 an election whether they shall become citizens of the annexing 
 State or retain their old national status. But this, of course, is 
 a. question quite distinct from the transfer of the sovereignty over 
 the territory in question. 
 
 Though it thus appears that territory may be annexed with- 
 out the consent of the people, it has not yet been shown that, 
 in fact, a legislative act is constitutionally adequate for the 
 purpose. It has been shown that the admission of Texas 
 by a Joint Resolution of Congress directly into the Union as a 
 State could be justified as an exercise of the power given to 
 Congress by the Constitution to admit new States into the Union, 
 and did not, therefore, establish a precedent for the annexation 
 of Hawaii. To the author's mind the annexation of Hawaii by 
 legislative act, was constitutionally justified upon the same ground 
 that the extension of American sovereignty by statute over the 
 Guano Islands was justified; namely, as an exercise of a right 
 springing from the fact that, in the absence of express constitu- 
 tional .prohibition, the United States as a sovereign nation has all 
 the power that any sovereign nation is recognized by international 
 law and practice to have with reference to such political questions 
 as the annexation of territory. 
 
 In addition to this source of authority, it would also be quite 
 reasonable to argue that the annexation of the Hawaiian Islands 
 
 3 Hawaii was annexed at the request of the Hawaiian Government Tint it 
 cannot be said that the United States made a favoring popular vote a 
 condition precedent to annexation. Upon the general international practice, 
 see Snlire, Le plebiscite dans Vannexntion. 1901. Hall, International Late, 
 4th ed., p. 49. says: "The principle that the wi=hes of a population are 
 to be consulted when the territory they inhabit is ceded has not been adopted 
 in international law. and cannot be adopted into it until title by conquest 
 has disappeared." Cf. Moore, Dirjcst of Int. Lair, 83.
 
 MODES AXD Puifi'osKs I-OR AC^UIKIXG TKKKITOKY. 
 
 by act of Congress was a '' necessary and proper " measure for 
 the military defense of the nation, and for the protection and 
 increase of our foreign commerce; for there can be no question 
 but that a conceived military and commercial need was one of 
 the strongest of the motives that operated ta bring about the 
 annexation. 4 
 
 The question as to the constitutionality of the annexation of 
 Texas or of Hawaii has never been directly raised and passed 
 upon by the Supreme Court of the United States. In fact, how- 
 ever, the court has of course impliedly recognized the validity of 
 the annexation both of Texas and Hawaii in every case in which 
 it has enforced the laws of, or federal laws relating to, these terri- 
 tories. That the point has not been directly raised is due to the 
 principle uniformly declared by the court, when the point has, 
 in other instances, been raised, that the territorial limits of sov- 
 ereignty is a question the decision of which by the political 
 branches of the government is absolutely binding upon its 
 judiciary. 
 
 < The Committee (Senate Report 681, 55th Cong., 2d Sess.) in its report 
 favoring annexation of Hawaii, say: "As the place the only one in the 
 North Pacific Ocean for the concentration of cable lines; for obtaining coal, 
 water, or provisions for ships; for the repair of vessels; or for the storage 
 of goods in bond, or otherwise, from all countries for the purposes of trade 
 around the whole circuit of the coasts of the Pacific Ocean; and with its 
 numerous inlands, the Hawaiian Islands are the central point of distribution 
 which can have no possible competitor. This enormous advantage to our 
 trade in the islands and across the Pacific Ocean must be felt by every in- 
 dustry in the United States. Their separation by a distance of 2,000 miles 
 from all other lands, and their central location as to every point on the 
 great arc of the circle that extends from the Mexican border almost to the 
 coast of Siberia, the Pacific frontier of Alaska, Washington, Oregon, and 
 California, makes the Hawaiian Islands the most important point in the 
 seas of the Western Hemisphere for the fostering and protection of our 
 coastwise and foreign commerce. As ships of war are the necessary com- 
 plement of ships of commerce, these great advantages belonging to the 
 po-'igraphical location of the Hawaiian Islands are equally indispensable to 
 our Xavy. a- the protector of our commerce, coming from both the Atlantic 
 find Pacific Oceans. On the commercial and military views of these questions 
 the opinions of merchants and navigators, and of our naval officers, as to 
 1 1 o developments and necessities of the future as yet unknown are our 
 mrst intelligent and saft?=t gui-les. The Committee can appeal to these sources 
 of information and safe forecast with the confidence that comes from their 
 almost unanimous agreement."
 
 350 UNITED STATES CONSTITUTIONAL LAW. 
 
 With reference to the annexation of the Philippine Islands, 
 the point was raised by certain "Anti-Imperialists " that the 
 United States did not get a valid title for the reason that Spain 
 had never reduced some of them to possession; and that, as to 
 others, at the time of transfer neither she nor the United States 
 was in effective occupation. This, however, is not a question of 
 constitutional, but of international law one, that is, that a 
 foreign power might possibly raise, but which could not be con- 
 sidered in our courts.
 
 CHAPTER XXIV. 
 
 THE CONSTITUTIONAL SOURCES OF THE POWER OF CONGRESS TO 
 GOVERN THE TERRITORIES. 
 
 156. Power to Govern Territories not Questioned. 
 
 There has never been any question as to the power of the United 
 States to govern the territories .possessed or acquired by it and 
 not included within the limits of any of the individual States. 
 The only question has been as to the source and extent of this 
 power. This federal authority to govern has been derived from 
 three sources: (1) The express power given to Congress " to dis- 
 pose of and make all needful rules and regulations respecting the 
 territory or other property belonging to the United States;'' 
 (2) The implied power to govern derived from the right to 
 acquire territory; and (3) The power implied from the fact that 
 the States admittedly not having the power, and the power having 
 to exist somewhere, it must rest in the Federal Government 
 
 All three of these sources of authority have been, at different 
 times, recognized by the Supreme Court. 
 
 The earliest case is that of Sere v. Pitot, 1 decided in 1810, with 
 reference to the Territory of Orleans. In his opinion Marshall 
 says : " The power of governing and legislating for a territory is 
 the inevitable consequence of the right to acquire and hold prop- 
 erty. Could this position be contested, the Constitution of the 
 United States declares that ' Congress shall have the power to 
 dispose of and make all needful rules and regulations respecting 
 the territory and other property belonging to the United States.' 
 Accordingly, we find Congress possessing and exercising the abso- 
 lute and undisputed power of governing and legislating for the 
 Territory of Orleans. Congress has given them a legislature, an 
 executive, and a judiciary, with such powers as it has been their 
 will to assign to those departments respectively." 
 
 i 6 Cr. 332 ; 3 L. ed. 240. 
 
 [351]
 
 352 UNITED STATES CONSTITUTIONAL LAW. 
 
 From this it will be seen that both the first and second sources 
 of authority mentioned above are relied upon. Marshall himself 
 is plainly of the opinion that the power to govern is a necessary 
 incident to the power to acquire,, hut indicates that this view may. 
 possibly be contested. 
 
 In American Insurance Co. v. Canter, 2 decided in 1828, with 
 reference to the government of Florida, Marshall uses the follow- 
 ing language: '' In the meantime [until it is admitted as a State] 
 Florida continues to be a Territory of the United States; gov- 
 erned by virtue of that clause which empowers Congress ' to make 
 all needful rules and regulations, respecting the territory, or other 
 property belonging to the United States.' ' He adds, however : 
 " 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." 
 
 Here, then, all three of the possible sources of the authority of 
 Congress to govern acquired territory are referred to, though the 
 two latter are only suggested as possible sources. 
 
 In United States v. Gratiot, 3 decided in 1840, it is declared: 
 " The term territory as here used [Art. IV, Section III] is 
 merely descriptive of one kind of property; and is equivalent to 
 the word lands. And Congress has the same power over it as 
 over any other property belonging to the United States ; and this 
 power is vested in Congress without limitation ; and has been con- 
 sidered the foundation upon which the territorial governments 
 rest." 
 
 In Cross v. Harrison,^ decided in 1853, with reference to terri- 
 tory acquired from Mexico, the court say: " The territory had 
 been ceded as a conquest, and was to be preserved and governed 
 
 *1 Pet 511; 7 L. ed. 242. 
 814 Pet. 526: 10 L. ed. 573. 
 416 How. 164; 14 L. ed. 889.
 
 SOURCES OF POWER OF CONGRESS TO GOVERN TERRITORIES. 353 
 
 as siifh until the sovereignty to which it had passed had legislated 
 for it. That sovereignty was the United States, under the Con- 
 j-tiiution, by which power had been given to Congress to dispose 
 of and make all needful rules and regulations respecting territory 
 and other property belonging to the United States." 
 
 In United States v. Guthrie, 5 decided in 185-i, Justice McLean, 
 in a dissenting opinion declared: "The power raider which the 
 territorial governments are organized is a matter of some con- 
 troversy. ... It seems to me that the power to govern a 
 territory is a necessary consequence of the power given ' to make 
 all needful rules and regulations respecting the territory or other 
 property belonging to the United States.' Xo one doubts the 
 power of Congress to sell the public lands beyond the limits of 
 any State; and this renders necessary the organization of a gov- 
 ernment for the protection of the persons and property of the 
 purchasers. This is an implied power, but it necessarily results 
 from the power to sell the public lands." 6 
 
 157. Doctrines of the Dred Scott Case. 
 
 This review of decisions brings us chronologically to the Dred 
 Seott case. Up to this time, it must be observed, that the chief 
 rr-iiance for the power to govern the territories had been the grant 
 of authority contained in Article IV, Section III. It is further 
 to be observed that recourse to this source of authority is subject 
 to the possible limitation that it applies only to territories pos- 
 d by the United States at the time the Constitution was 
 adopted, and, therefore, that it cannot be appealed to for authority 
 to govern areas acquired since that time; also that, over such 
 territories as it is applicable to, it does not grant to the Govern- 
 ment general governing powers, but only such as are necessary and 
 proper for disposing of and regulating the public lands as prop- 
 
 517 How. 2*4; 15 L. eel. 102. 
 
 It is worthy of note, that, though McLean relies upon an express grant 
 of power given Congress in Article IV, Section III, he construes this to he 
 not a direct grant of governing power, but of a power to dispose of lands 
 which carries with it the implied power to govern. 
 
 23
 
 354 UNITED STATES CONSTITUTIONAL LAW. 
 
 erty, and preparing them and their inhabitants for admission to 
 the Union as States. 
 
 This was the position assumed by the majority of the court in 
 the great case of 'Scott v. Sandford, 7 decided in 1857. 
 
 This case we have already discussed with reference to its bear- 
 ing upon citizenship in the United States. We have now to ex- 
 amine it in its bearing upon the status of territories. 
 
 This suit, it will be remembered, was one brought by Dred Scott, 
 a negro, who had been owned and held as a slave in the State of 
 Missouri, had been carried by his master first to the State of 
 Illinois, where slavery did not exist, where he remained for two 
 years ; then to the Territory then known as Upper Louisiana, from 
 which slavery had been excluded by the Missouri Compromise 
 Act of 1820; and finally brought back to Missouri. Scott alleged 
 that by being carried by his master voluntarily into the free State 
 of Illinois and the free Territory he became a free man. He 
 thereupon brought suit in the nature of an action of trespass 
 against his master for restraining his liberty. The suit was 
 brought in a federal court, the jurisdiction of the federal court 
 being based upon a diversity of citizenship, Scott claiming to be 
 a citizen of the State of Missouri, and Sandford, the defendant, 
 being a citizen of the State of Xew York. The plea in abatement 
 that Scott was not a citizen of a State within the constitutional 
 sense, has already been considered in Chapter XVII. 
 
 A plea in bar was filed which set up that Scott was still a 
 slave, and that, therefore, no legal injury had been done him by 
 the defendant ; that when he was taken into Illinois as a slave and 
 held there as such, and brought back by his master to Missouri, 
 his status as fixed by the laws of Missouri was not changed ; and 
 that, as for his being carried into the free Territory of Upper 
 Louisiana, Congress had had no constitutional power to exclude 
 slavery therefrom, as it had attempted to do by the Act of 1820. 
 It was in passing upon this last point that the court found it- 
 necessary to examine as to the constitutional power of the United 
 States to acquire foreign territory and to govern it when acquired. 
 
 719 How. 393; 15 L. ed. 691.
 
 SOURCES OF POWER OF CONGRESS TO GOVERN TERRITORIES. 355 
 
 The case was first argued in 1856 and at that time the majority 
 of the court were of the opinion that it would not be necessary to 
 consider the question whether or not Scott was a citizen, but 
 that the case could be decided upon its merits, namely, that Scott, 
 being originally *a slave, his being carried into Illinois and Upper 
 Louisiana did not affect his status after his return to Missouri ; 
 that, in other words, the law of Missouri as determined by the 
 highest courts of that State should govern the Supreme Court in 
 its disposition of the case. This decision, it will be observed, made 
 it unnecessary for the court to pass upon either the question as to 
 whether a free negro could become a citizen of -a State in the con- 
 stitutional sense of the term, or the question as to the power of 
 Congress to prohibit slavery in the Territories. To Justice Xelson 
 was assigned the preparation, upon this basis, of the opinion of 
 the court, and the individual opinion which he finally read was the 
 one prepared for this purpose. In this opinion he said: "In 
 the view we have taken of the case, it will not be necessary to 
 pass upon this question [of citizenship], and we shall therefore 
 pass at once to an examination of the case on its merits." Justice 
 Xelson does later say, however : " It is perhaps not unfit to 
 notice in this connection that many of the most eminent states- 
 men and jurists of the country entertain the opinion that this 
 provision of the Act of Congress [of 1820], even within the Terri- 
 tory to which it relates, was not authorized by any power under 
 the Constitution." But he goes on to say that whether it was 
 valid or not, the act could have no operation or effect within the 
 limits of the State of Missouri, and could not, therefore, affect 
 the status of the plaintiff after his return thither. 
 
 A second argument of the case having been asked for and had, 
 five justices agreed that the plea in abatement was not properly 
 before the court and that, therefore, the case would have to be 
 decided upon the merits. 
 
 With the judgment of the court as to the effect of the laws of 
 Congress governing the Territory of Upper Louisiana and of the 
 State of Illinois upon the status of Scott after his return to 
 Missouri we are not here concerned. That which does concern
 
 3,">f) UXITED STATES CONSTITUTIONAL LAW. 
 
 HS is that six of the nine justices held that the power of Congress 
 over the Territories was of such a limited character as to render 
 unconstitutional an attempt to exclude slavery from them. 
 
 The Chief Justice, who was among those who took this .position, 
 argued as follows : " The counsel for the plaintiff has laid much 
 stress upon that article in the Constitution which confers on Con- 
 gress 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 pro- 
 vision 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 
 a* settled by the Treaty with Great Britain, and can have no in- 
 uence upon a territory afterwards acquired from a foreign gov- 
 ernment. It was a special provision for a known and particular 
 Territory, and to meet a present emergency, and nothing more. 
 A brief summary of the history of the times, as well as the care- 
 ful and measured terms in which the article is framed, will show 
 the correctness of this proposition." 8 
 
 reviewing the circumstances leading up to the cession by the in- 
 dividual States to the Confederacy of their claims to western lands, and 
 after adverting to the fact that the Confederacy had no constitutional power 
 to accept the grant or to enact the Xorthwest Ordinance of 1787 for its 
 gBwrnment, he snys: "This was the state of things when the Constitution 
 of the- United States was formed. The territory ceded by Virginia belonged 
 to the several confederated States as common property, and they had united 
 rh establishing in it a system of government and jurisprudence, in order to 
 prepare it for admission as States, according to thr terms of the cession. 
 They were about to dissolve this federative Union, and to surrender a portion 
 of their independent sovereignty to a new government, which, for certain pur- 
 poses, would make the people of the several States one people, and which 
 was to be supreme and controlling Avithin its sphere of action throughout 
 the United States: but this government was to be carefully limited in its 
 powers, and to exercise no authority beyond those expressly granted by the 
 Constitution, or necessarily to be implied from the language of the instru- 
 ment, and the objects it was intended to accomplish ; and as this league of 
 States would, upon the adoption of the new governmont, cease to have any 
 power over the territory, and the ordinance they had agreed upon be incapable 
 of execution, and a mere nullity, it was obvious that some provision was 
 JWiewwi v to give the new government sufficient power to enable it to carry
 
 SOURCES OF POWEJS. OF COXGKESS TO GOVEJJX TFJBJKITOKIES. 
 
 It has often been stated that in this case Chief Justice Taney 
 and all those Justices who agreed with him, held that the United 
 States might increase its territory only by the admission of new 
 States. This is not quite correct. These justices did, indeed, Jiold 
 that foreign territory might be acquired only for the purpose of 
 admitting new States; but its annexation of areas with this eud 
 in view they agreed might be effected by an exercise of the treaty 
 
 into effect the objects for which it was ceded, and the compacts and agree- 
 ments which the butt's had made each other in the exercise of their power 
 of sovereignty. It was necessary that the lands should be sold to pay the 
 wai debt; that a government and system of jurisprudence should be main- 
 tained in it; to protect the citizens of the United States, who would migrate 
 to the Territory, in their rights of person and of property. It was also 
 necessary that the new government, about to be adopted, should be author- 
 ized to maintain the claim of the United States to the unappropriated lands 
 in Xorth Carolina and Georgia, which had not then been ceded, but the 
 cession of which was confidently anticipated upon some terms that would be 
 arranged (between the General Government and these two States. And, 
 moreover, there were many articles of value besides this property in land, 
 such as arm?, military stores, munitions, and ships of war, which were the 
 common property of the States when acting in their independent characters 
 as confederates, which neither the new government nor any one else would 
 have a right to take possession of, or control, without authority from them.; 
 and it was to place these things under the guardianship and protection of 
 the new government, and to clothe it with the necessary powers, that the 
 clause was inserted in the Constitution which gives Congress the power 'to 
 dispose of and make all needful rules and regulations respecting the territory 
 or other property belonging to the United State;?.' 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 tlien 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 thfi 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. 
 The language u*ed in the clause, the arrangement and combination of i,he 
 powers, and the somewhat unusual phraseology it uses, when it speaks of 
 the political power to be exercised in the government of the Territory, all 
 indicate the design and meaning of the clause to be such as we have men- 
 tioned. It does not speak of any Territory, nor of Territories, but ii?t-< 
 l.'M-.uuagp which, according to its legitimate meaning, points to a particular 
 thing. The power i- given in relation only to the territory nf the United 
 States that is. to a Territory then in c-xistence. and t^r\ known or claimed 
 as the territory of the United States. It begins it~ enumeration of powers 
 by that of disposing in other words, making sale of lands, or raising money
 
 358 UNITED STATES CONSTITUTIONAL LAW. 
 
 making or other powers. Upon this point Taney declared: 
 " There is certainly no power given by the Constitution to the 
 Federal Government to establish or maintain colonies bordering 
 on the United States or at a distance, to be ruled and governed 
 at its own pleasure; nor to enlarge its territorial limits in any 
 way, except by the admission of ew States. That power is 
 plainly given ; and if a new State is admitted, it needs no further 
 legislation by Congress, because the Constitution itself defines 
 the relative rights and powers and duties of the State, and the 
 citizens of the State, and the Federal Government. But no 
 power is given to acquire a Territory to be held and governed per- 
 manently in that character. . . . The power to expand the 
 territory of the United States by the admission of new States is 
 plainly given; and in the construction of this power by all the 
 departments of the government, it has been held to authorize the 
 acquisition of territory not fit for admission at the time, but to 
 be admitted as soon as its population and situation would entitle 
 it to admission. It is acquired to become a State, and not to be 
 held as a colony and governed by Congress with absolute author- 
 ity; and as the propriety of admitting a new State is committed 
 to the sound discretion of Congress the power to acquire territory 
 for that purpose, to be held by the United States until it is in a 
 suitable condition to become a State upon an equal footing with 
 the other States, must rest upon the same discretion. It is a 
 question for the political department of the government, and not 
 
 from them, which, as we have already said, was the main object of the 
 cession, and which is accordingly the first thing provided for in the article. 
 It then gives the power which was necessarily associated with the disposition 
 and sale of the lands that is, the power of making needful rules and 
 regulations respecting the Territory. And whatsoever construction may now 
 be given to these words, every one, we think, must admit that they are not 
 the words usually employed by statesmen in giving supreme power of legis- 
 lation. They are certainly very unlike the words used in the power granted 
 to legislate over territory which the new government might afterwards itself 
 obtain by cession from a State, either for its seat of government, or for 
 forts, magazines, arsenals, dockyards, and other needful buildings. . . . This 
 view of the subject is confirmed by the manner in which the present Govern- 
 ment of the United States dealt with the subject as soon as it came into 
 existence."
 
 SOURCES OF POWER OF CONGRESS TO GOVERN TERRITORIES. 359 
 
 the judicial; and whatever the political department of the govern- 
 ment shall recognize as within the limits of the United States the 
 judicial department is also bound to recognize, and to administer 
 in it the laws of the United States, so far as they apply, and to 
 maintain in the territory the authority and rights of the govern- 
 ment ; and also the personal rights and rights of property of in- 
 dividual citizens, as secured by the Constitution. All we mean to 
 say on this point is, that, as there is no express regulation in the 
 Constitution defining the power which the General Government 
 may exercise over the person or property of a citizen in a territory 
 thus acquired, the court must necessarily look to the provisions 
 and principles of the Constitution, and its distribution of pow- 
 ers, for the rules and principles by which its decision must be 
 governed." 
 
 With the exception of Justice Curtis, none of the other justices 
 discussed at length the source of the power to acquire territory. 
 Five of the other justices, however, concurred with the Chief 
 Justice in holding the Act of 1820 unconstitutional, and, there- 
 fore, where they do not expressly say so, may be presumed to 
 have agreed with him as to the source whence and the purpose for 
 which foreign territory might be acquired, and as to the restric- 
 tion of the authority granted by Congress by Article IV, 'Section 
 III, to the territories possessed by the United States in 1787. 
 
 Justice Curtis in his dissenting opinion declared that whatever 
 doubt there may have been as to the power of the United States 
 to acquire additional territory, four precedents and several 
 judicial sanctions had established its existence beyond doubt. 9 
 The power to govern this acquired territory Curtis found in 
 Article IV, Section III. 10 
 
 9 Citing American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; and 
 Sere v. Pitot, 6 Cr. 332 ; 3 L. ed. 240. 
 
 10 He said: ' There was to be established by the Constitution a frame 
 of government, under which the people of the United States and their posterity 
 were to continue indefinitely. To take one of its provisions, the language 
 of which is broad enough to extend throughout the existence of the govern- 
 ment, and embrace all territory belonging to the United States throughout 
 all time, and the purposes and objects of which apply to all Territory of
 
 360 UNITED STATES CO^STITL'TIOXAL LAW. 
 
 The arguments and opinions in the Dred Scott case revealed the 
 difficulties involved in a jreeourse to Article IV, Section III, for 
 the power to govern acquired territories, and, accordingly, since 
 that date we find the Supreme Court emphasizing the doctrine 
 that the power is implied in the right to acquire, as well as argu- 
 able from the fact that inasmuch as the States have no authority in 
 the premises the Federal Government must have it. Thus in 
 United States v. Kagama 11 the court say: "The power of Con- 
 gress to organize territorial governments, and make laws for their 
 inhabitants, arises not so much from the clause in the Constitution 
 in regard to disposing of and making rules and regulations con- 
 
 the United States and narrow it down to territory belonging to the United 
 States when the Constitution was framed, while at the same time it is ad- 
 mitted that the Constitution contemplated and authorized the acquisition, 
 from time to time, of other and foreign territory, seems to me to be an 
 interpretation as inconsistent with the nature and purpose of the instrument, 
 as it is with its language, and I can kave DO hesitation in rejecting it. 
 I construe this clause, therefore, as if it had read, Congress shall have the 
 power to make all needful rules and regulations respecting those tracts of 
 country out of the limits of the several States, which the United States 
 have acquired, or may hereafter acquire, by cessions as well as of the juris- 
 dictions as of the soil, so far as the soil may be the property of the party 
 making the cession, at the time of making it. It has been argued that the 
 words ' rules and regulations ' are not appropriate terms in which to convey 
 authority to make laws for the government of the Territory. But it must 
 be remembered that this is a grant of power to the Congress that it is, 
 therefore, necessarily a grant of power to legislate and certainly, rules and 
 regulations respecting a particular subject, made by the legislative power 
 of a country, can be nothing but laws. Xor do the particular terms employed, 
 in my judgment, tend in any degree to restrict this legislative power. Power 
 granted to a legislature to make all needful rules and regulations respecting 
 the Territory, is a power to pass all needful laws respecting it ... With- 
 out government and social order there can be no property; for without law, 
 its ownership, its use and the power of disposing of it cease to exist, in the 
 sense in which those words are used and understood in all civilized -States. 
 Since, then, this power was manifestly conferred to enable the United States 
 to dispose of its public lands to settlers, and to admit them into the Union 
 as States, when in the judgment of Congress they should be fitted therefor, 
 since these were the needs provided for. since it is confessed that government 
 is indispensable to provide for those needs, and the power is, to make all 
 needful rules and regulations respecting the Territory. I cannot douht +hat 
 this is a power to govern the inhabitants of the Territory, by such laws as 
 Congress deems needful, until they obtain admission as States." 
 11 118 U. S. 375; 6 Sup. Ct. Pvep. 1109; SO L. ed. 228.
 
 SOURCES OF POWER or CONGRESS TO' GOVERN TERRITORIES. 361 
 
 cerning the territory and other property of the United States, as 
 from the ownership of the country in which its territories are, 
 and the right of exclusive sovereignty which must exist in the 
 National Government, and can be found nowhere else." In the 
 Late Corporation of the Church of Jesus Christ v. United States 12 
 the court say : " The power of Congress over the Territories of 
 the United States is ... general and plenary, arising from 
 and incidental to the right to acquire the territory itself, and from 
 the power given by the Constitution to make all needful rules and 
 regulations respecting the territory or other property of the 
 United States, it would be absurd to hold that the United States 
 has the power to acquire territory, and no power to govern it 
 when acquired." Here, though Section III of Article IV is 
 indeed referred to, the power to acquire is clearly einphasi2ed as 
 the source of the power to govern, Finally in De Lima v. Bid- 
 well, 13 one of the so-called " Insular Cases," the court say: " It 
 [the power to govern] is an authority which arises not necessarily 
 from the territorial clause of the Constitution, but from the neces- 
 sities of the case, .and from the inability of the States to act on 
 the subject." 
 
 12 130 U. 3. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478. 
 13182 U. 6. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.
 
 CHAPTER XXV. 
 
 THE EXTENT OF THE POWER OF CONGRESS TO GOVERN THE 
 
 TERRITORIES. 
 
 158. Power to Govern Absolute. 
 
 Since the time when the necessity for the exercise of the au- 
 thority arose, there has been almost no question as to the absolute 
 power of Congress to determine the form of political and admin- 
 istrative control to be erected over the Territories, and to fix the 
 extent to which their inhabitants shall be admitted to a participa- 
 tion in their own government. Both by legislative practice and by 
 judicial sanction, the principle has been from the first asserted 
 that upon this matter the judgment of Congress is absolute. This, 
 however, has not been construed to carry with it the absolute con- 
 trol of the federal legislature over the civil rights the private 
 rights of person and property of the inhabitants of the Terri- 
 tories. The extent of the power of Congress with respect to these 
 will be discussed in the next chapter. 
 
 The first act for the government of Territories, the " Ordinance 
 for the Government of the Territory of the United States North- 
 west of the Ohio River," implied the doctrine that to Congress is 
 given the complete discretion as to the form of government to be 
 supplied, 1 and that the inhabitants of this region are not, except 
 by congressional grant, entitled to local self-government. The act 
 provides that "as soon as there shall be five thousand free male 
 inhabitants, of full age, in the district" they shall receive au- 
 thority to elect a representative legislative assembly, and that as 
 soon " as may be consistent with the general interest," the terri- 
 tory is to be subdivided into States, which are to be admitted into 
 the Union on an equal footing with the original States. Until, 
 however, the Assembly is established, all governing power is 
 vested in a governor, a secretary and a court of three judges, all 
 nominated by the President and appointed by and with the consent 
 
 iBy Act of August 7, 1789, the first Congress under the Constitution re- 
 enacted the ordinance of 1787, with the necessary change that the officers 
 provided for by it should be nominated by the President and appointed by 
 and with the advice and consent of the Senate. 
 
 [362]
 
 EXTENT OF POWEK OF CONGRESS TO GOVERN TERRITORIES. 363 
 
 of the Senate. During this period, then, there was to be no local 
 self-government whatever. 
 
 By the Act of May 26, 1790, the Southwest Territory was given 
 a government in all respects the same as that erected for the North- 
 west Territory. 
 
 By the Act of October 31, 1803, passed for the government of 
 the Louisiana Territory purchased from France, the President 
 was given full power to take possession, using for this purpose 
 such force as might be necessary, and " that, until the expiration 
 of the present session of Congress, unless provision for the tem- 
 porary government of the said territories be sooner made by Con- 
 gress, all the military, civil, and judicial powers exercised by the 
 officers of the existing government of the same shall be vested in 
 such person and persons, and shall be exercised in such manner, 
 as the President of the United States shall direct, for maintaining 
 and protecting the inhabitants of Louisiana in the free enjoyment 
 of their liberty, property and religion." 
 
 A formal remonstrance against the autocratic regime thus estab- 
 lished, as being in violation of the rights guaranteed by the treaty 
 with France, was presented in behalf of the inhabitants of the 
 Territory to the United States Senate, but no question as to the 
 constitutionality of the action was raised. 
 
 The Act of March 3, 1819, for the taking possession and tem- 
 porary government of Florida, was almost identical with the 
 Louisiana Act of 1803. 
 
 Without attempting to trace further the legislation with refer- 
 ence to the government of the Territories it is sufficient to say 
 that Congress has continued to the present day uniformly to con- 
 sider this subject one to be dealt with absolutely at its own dis- 
 cretion. 2 
 
 2 For legislation of Congress with reference to the Territories, see W. F. Wil- 
 loughby, Territories and Dependencies of the United States: Their Govern- 
 ment <nul A'lniiniKtration ; Farrand, The Legislation of Congress for the Gov- 
 ernment of the Ttrrilories of the United States; Organic Acts for the Terri- 
 tories of the United States with 'Notes Thereon, Compiled from the Statutes 
 at Large of the United States; also Appendix Comprising Other M otters Re- 
 lating to the Corcrnment of the Territories. (Senate Document, No. 148, 
 56th Congress, 1st Sess.)
 
 364 UNITED STATES CONSTITUTIONAL LAW. 
 
 Acting in pursuance of its powers, Congress lias thus from 
 time to time, as new territories have been acquired, established 
 for them, by statutes, territorial governments. The latest of these 
 statutes are those establishing civil rule in Porto Hico and the 
 Philippines. 
 
 159. Classes of Territorial Governments. 
 
 Generally speaking, it may be said that the governments thus 
 created have been and are of four kinds. 
 
 First, there is the class of so-called Unorganized Territories, at 
 present consisting only of Alaska. These have no local self- 
 government but are governed by officials nominated by the Presi- 
 dent and confirmed by the Senate, and have for their laws such 
 as have been given them "by Congress. To this class of auto- 
 cratically governed territories should also possibly be added the 
 Samoan, Wake, Midway, and Guano Islands which are ruled by 
 officers of the military force of the United States. 
 
 Second, there is the whole class of Organized Territories that 
 has included all of the continental territories of the United States 
 except Indian Territory arid Alaska, and at the present time em- 
 braces Xew Mexico, Arizona, and Hawaii. The chief executive 
 and judicial officers of these governments are nominated hy the 
 President and confirmed by the Senate and hold office for four 
 years. Their legislatures consist of two Houses, each elected by 
 those inhabitants of the territories who have been given the suf- 
 frage by federal law. The law-making power of these bodies is 
 extended by Congress u to all rightful subjects of legislation not 
 inconsistent with the Constitution and laws of the United States." 
 The laws passed in pursuance of this legislative authority are, of 
 course, not only subject to scrutiny in the courts as to their con- 
 stitutionality, but may be amended or annulled at any time by an 
 act of Congress. 
 
 Third, there is the government of the island of Porto Rico 
 which stands in a class by itself. According to the Foraker Act 
 of April 12, 1900, its governor and chief executive officials and 
 judges are nominated by the President and coniirmed by the
 
 EXTENT OF POWER OF CONGBESS TO GOVEKX TERRITOKIES. 365 
 
 Senate, and its legislature ia composed of two houses, the upper 
 of which consists of the six chief executive officials and five native 
 Porto Kicans, and the lower of thirty-five members elected by 
 popular vote. 
 
 .Fourthly, and finally, there is the government of the Philip- 
 pine Islands by means of a Commission appointed by the Presi- 
 dent and confirmed by the Senate under authority granted by 
 act of Congress. Since 1907 there has been also a popularly 
 elected legislative chamber. 
 
 160. Constitutionality of These Governments. 
 
 The constitutionality of this legislation has never been 
 seriously questioned. 3 
 
 3 In the early cuse of Sere v. Pitot (6 Cr. 332; 3 L. ed. 240), decided in 
 1810, in. its first reference to the rower, the Supreme Court, without dissent, 
 speaking through Marshall, niter declaring the right of the United States to 
 acquire and govern territory say: "Accordingly we find Congress possessing 
 and exercising the absolute and undisputed right of governing and legislating 
 for the Territory of Orleans. Congress has given th<?m a legislature, an 
 executive, and a judiciary, with such powers as it has been their will to 
 assign to those departments respectively." 
 
 In American Insurance Co. v. Canter (IPet. 511; 7 L. ed. 242), decided in 
 1S2S. Marshall, after referring to certain provisions of the treaty by which 
 Florida was acquired from Spain, says: "This treaty is the law of the 
 land, and admits the inhabitants of Florida to the enjoyment of the privileges, 
 rights, and immunities of the citizens of the United States . . . They do 
 not, however, participate in political power; they do not share in the govern- 
 ment, till Florida shall become a State." 
 
 In Snow v. United States (13 Wall. 317; 21 L. ed. 784), decided in 1873. 
 the court say: "The government of the Territories of the United States 
 belongs primarily to Congress; and secondarily to such agencies as Congress 
 may establish for that purpose. During the term of their pupilage as 
 Territories, they are mere dependencies of the United States. Their people 
 do not constitute a sovereign power. All political authority exercised therein 
 is derived from the General Government. It is. indeed, the practice of the 
 < icivrriimeiit to invest these dependencies with a limited power of self-govern- 
 ment as soon as they hav<; sufficient population for the purpose. The extent 
 of the power thus granted depends entirely upon the organic act of Congress 
 in each case, and is at all times subject to such alterations as Congress 
 may see fit to adopt." 
 
 In the Dred Scott case, Taney, though otherwise emphasizing the limita- 
 tions upon the power of Congress over Territories, concedes that it has a full 
 discretion with reference to the form of governments it may establish over
 
 3C6 UNITED STATES CONSTITUTIONAL LAW. 
 
 The plenary character of the legislative power of Congress in 
 this respect is perhaps best stated in Xational Bank v. County of 
 Yankton. 4 Chief Justice Waite, speaking for the court, says: 
 " Congress may not only abrogate laws of the territorial legisla- 
 tures, but it may itself legislate directly for the local government 
 It may make a void act of the territorial legislature valid, and a 
 valid act void. In other words, it has full and complete legis- 
 lative authority over the people of the Territories and all the de- 
 partments of the territorial governments. It may do for the Terri- 
 tories what the people, under the Constitution of the United 
 States, may do for the States." Again, in Murphy v. Ramsay 5 
 the court declare: "The people of the United States, as sover- 
 eign owners of the National Territories, have supreme power over 
 them and their inhabitants. In the exercise of this sovereign 
 dominion, they are represented by the government of the United 
 States, to whom all the powers of government over that subject 
 have been delegated, subject only to such restrictions as are ex- 
 
 them. He says: "The power to acquire, necessarily carries with it the power 
 to preserve and apply to the purposes for which it was acquired. The form 
 of government to be established necessarily rested in the discretion of Congress. 
 It was their duty to establish the one that would be the best suited for the 
 protection and security of the citizens of the United States and other in- 
 habitants who might be authorized to take up their abode there, and that 
 must always depend upon the existing condition of the Territory, as to the 
 number and character of its inhabitants, and the situation in the Territory. 
 In some cases a government, consisting of persons appointed by the Federal 
 Government, would best subserve the interests of the Territory, when the 
 inhabitants were few and scattered, and new to one another. In other 
 instances, it would be more advisable to commit the powers of self-govern- 
 ment to the people who had settled in the Territory, as being the most com- 
 petent to determine what was best for their own interests. But some form of 
 civil authority would be absolutely necessary to organize and preserve civil- 
 ized society, and prepare it to become a State ; and what is the best form must 
 always depend on the condition of the Territory at the time, and the choice 
 of the mode must depend upon the exercise of a discretionary power by 
 Congress acting within the scope of its constitutional authority, and not in- 
 fringing upon the rights of person or rights of property of the citizen who 
 n.ight go there to reside or for any other lawful purpose. It was acquired 
 by the exercise of this discretion and it must be held and governed in like 
 manner, until it is fitted to be a State." 
 
 101 U. S. 129; 25 L. ed. 1046. 
 
 6 114 U. S. 15; 5 Sup. Ct. Rep. 747; 29 L. ed. 47.
 
 EXTENT OF POWER OF CONGRESS TO GOVERN TERRITORIES. 367 
 
 pressed in the Constitution, or are necessarily implied in its terms, 
 or in the purposes and objects of the power itself; for it may well 
 be admitted in respect to this, as to every power of society over 
 its members, that it is not absolute and unlimited. But in ordain- 
 ing government for the territories, and the people who inhabit 
 them, all the discretion which belongs to legislative power is vested 
 in Congress; and that extends, beyond all controversy, to deter- 
 mining by law, from time to time, the form of the local govern- 
 ment in a particular Territory, and the qualification of those who 
 shall administer it. It rests with Congress to say whether, in a 
 given case, any of the people resident in the Territory, shall par- 
 ticipate in the election of its officers or the making of its laws; 
 and it may, therefore, take from them any right of suffrage it may 
 previously have conferred, or at any time modify or abridge it, 
 as it may deem expedient. The right of local self-government, as 
 known to our system as a constitutional franchise, belongs, under 
 the Constitution, to the States, and to the people thereof, by whom 
 that Constitution was ordained, and to whom by its terms all power 
 not conferred by it upon the government of the United States was 
 expressly reserved." 
 
 In Late Corporation, etc., v. United States the foregoing de- 
 cisions are cited and unqualifiedly approved. 
 
 There is in fact an unbroken line of judicial dicta upon this 
 point. Even in the Dred Scott case, Taney, who would limit the 
 legislative power of Congress over the Territories in other re- 
 spects, does not deny that as to the form of government to be estab- 
 lished over them, Congress has full discretion. Upon this point 
 the preceding opinions which we have quoted are cited by Taney 
 with approval. He does, indeed, say that no power is given by 
 the Constitution to the Federal Government to acquire territory 
 to hold and maintain permanently as colonies, but admits, as we 
 have seen, that territory may be annexed which is not immediately 
 readv for statehood, and that until so fitted, the form of its gov- 
 ernment must necessarily lie in the discretion of Congress. 
 
 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478.
 
 368 ' UHTTED STATES CONSTITUTIONAL LAW. 
 
 In the opinion rendered by Justices White, Shiras, and 
 McKenna and concurred in by Gray, in Downes v. Bid- 
 well 7 it is intimated that there may be unexpressed but 
 inherent limitations upon the discretion, of Congress in the 
 establishment of governments for the Territories. After call- 
 ing attention, in illustration of the plenitude of power of 
 Congress in this respect, to the fact that Congress has estab- 
 lished in the District of Columbia " a local government 
 totally devoid of local representation in the elective sense, 
 administered solely by officers appointed by the President,. Con< 
 gress, in which the District has no representative, in effect acting 
 as the local legislature, the opinion nevertheless goes on to say: 
 " While, therefore, there is no express or implied limitation on 
 Congress in exercising its power to create local governments for 
 any or all of the Territories, by which that body is restrained 
 from the widest latitude of discretion, it does not follow that there 
 may not be inherent, although unexpressed, principles which are 
 the basis of all free governments which cannot be with impunity 
 transcended [Chuch of Jesus Christ v. United States, 136 U. S. 
 1, 10 Sup. Ct. Bep. 792; 34 L. ed. 478]. But this does not sug- 
 gest that every express limitation of the Constitution which is ap- 
 plicable has not force, but only signifies that even in cases where 
 there is no direct command of the Constitution which applies, 
 there may nevertheless be restrictions of so fundamental a nature 
 that they cannot be transgressed, although not expressed in so 
 many words in the Constitution." 
 
 It is difficult for the author to follow the reasoning of the 
 Justices as set forth in these sentences. It would seem that there 
 is some confusion of the authority of Congress to create govern- 
 ments for the Territory, and its power to legislate regarding the 
 private civil rights of their inhabitants. The reference to the 
 Mormon Church case shows this, for that case had nothing to do 
 with the- governing powers of Congress. These governing powers 
 aro absolute, without any express, implied, or " inherent " limi- 
 tations. 
 
 7182 U. S. 244; 21 Sup. Ct Rep. 770; 45 L. ed. 1088.
 
 EXTENT OF POWER OF COXGBESS TO GOVEBN TERRITORIES. 369 
 
 161. Territorial Governments are Congressional Governments. 
 
 The governments established in the Territories bj Congress act 
 as agencies of Congress, in the same sense that an administrative 
 board acts as the agent of the law-making body that creates it. 
 As such congressional agencies, the territorial governments are not 
 -idered to be parts of the General Government established or 
 directly provided for bj the Constitution. This point was early 
 determined in American Insurance Co. v. Canter. 8 In this gase 
 die point was- raised that the territorial judges in Florida had 
 been appointed for terms of but four years, whereas the Constitu- 
 tion provides that the judges of both the Supreme and inferior 
 federal courts shall hold office during good behavior. In sustain- 
 ing the validity of the territorial law in this matter, Marshall 
 said : '* These courts . . . are not constitutional courts in 
 which the judicial power conferred by the Constitution on the 
 General Government can be deposited. They are incapable of 
 receiving it. They are legislative courts, created in virtue of the 
 general right of sovereignty which exists in the government, or 
 in virtue of that clause which enables Congress to make all need- 
 ful rules and regulations respecting the territory belonging to the 
 United States. The jurisdiction with which they are invested is 
 not a .part of that judicial power which is denned in the third 
 article of the Constitution, but was conferred by Congress in 
 execution of those general powers which that body possesses over 
 the Territories of the United States." 
 
 In Benner v. Porter 9 the court say with reference to territorial 
 governments : " They are legislative governments, and their 
 courts legislative courts, Congress, in the exercise of its powers 
 m the organization and government of the territories, combining 
 the powers of both the federal and state authorities. There is but 
 one system of government or of laws operating within their limits, 
 as neither is subject to the constitutional provisions in respect to 
 state and federal jurisdiction. They are not organized under the 
 Constitution, nor subject to its complex distribution of the powers 
 
 1 Pet. 511; 7 L. ed. 242. 
 99 How. 235; 13 L. ed. 119. 
 
 24
 
 370 UNITED STATES CONSTITUTIONAL LAW. 
 
 of government, as the organic law; but are the creations, exclu- 
 sively, of the legislative department, and subject to its supervision 
 and control. Whether or not there are provisions in that instru- 
 ment which extend to and act upon these territorial governments, 
 it is not now material to examine." 10 
 
 In United States v. Pridgeon 15 it was held that the courts pro- 
 vided for the Territory of Oklahoma could be and had been au- 
 thorized by Congress to sit as territorial courts to administer the 
 laws of the Territory, and as courts of the United States to ad- 
 minister the laws of the United States. 
 
 In American Insurance Co. v. Canter 12 and in Re Cooper 13 it 
 was held that the territorial courts may be granted admiralty 
 jurisdiction. Also, though not " inferior " courts within the 
 meaning of Section 1 of Article III of the Constitution, an ap- 
 peal may be granted from them to the Supreme Court. In United 
 States v. Coe 34 the court say: "As wherever the United States 
 exercises the power of government, whether under specific grant, 
 or through the dominion and sovereignty of plenary authority as 
 over the Territories, that power includes the ultimate executive, 
 legislative, and judicial power, it follows that the judicial action of 
 all inferior courts established by Congress may in accordance with 
 
 10 In Clinton v. Englebrecht (13 Wall. 434; 20 L. ed. 659), the court say: 
 "There is no Supreme Court of the United States, nor is there any district 
 court of the United States in the sense of the Constitution, in the Territory 
 of Utah. The judges are not appointed for the same terms, nor is the 
 jurisdiction which they exercise part of the judicial power conferred by the 
 Constitution of the General Government. The courts are the legislative courts 
 of the Territories, created in virtue of that clause which authorizes Congress 
 to make all needful rules and regulations respecting the Territories belonging 
 to the United States." 
 
 To the same effect are the cases Hornbuckle v. Toombs, 18 Wall. 648. 21 
 L. ed. 966; Good v. Martin, 95 U. S. 90; 24 L. ed. 341; Reynolds v. United 
 States, 98 U. S. 145; 25 L. ed. 244; The City of Panama, 101 U. S. 453; 25 
 L. ed. 1061; McAllister v. United States, 141 U. S. 174, 11 Sup. Ct. Eep. 
 949; 35 L. ed. 693; United States v. Pridgeon, 153 U. S. 48; 14 Sup. Ct. Rep. 
 746; 38 L. ed. 631, and United States v. Coe, 155 U. S. 76; 15 Sup. Ct. Rep 
 16; 39 L. ed. 76. 
 
 H 153 U. S. 48; 14 Sup. Ct. Rep. 746; 38 L. ed. 631. 
 
 "I Pet. 511; 7 L. ed. 242. 
 
 143 IT. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232. 
 
 " 155 U. S. 76; 15 Sup. Ct. Rep. 16; 39 L. ed. 76.
 
 EXTENT or POWER OF CONGRESS TO GOVERN TERRITORIES. 371 
 
 the Constitution be subjected to the appellate jurisdiction of the 
 supreme judicial tribunal of the government There has never 
 been any question in regard to this as applied to territorial courts, 
 and no reason can be perceived for applying a different rule to the 
 adjudications of the court of private land claims over property in 
 the Territories." 
 
 Whether or- not the courts of the District of Columbia are 
 " inferior " federal courts within the meaning of Section 1 of 
 Article III of the Constitution has never been squarely settled. 
 In James v. United States 15 the court implies that is not de- 
 termined, but does not in that case find it necessary to pass upon 
 the point. 
 
 With reference to the District of Columbia it will be pointed 
 out 16 that Congress may not delegate to the local governing body 
 legislative powers, but only authority to issue local municipal 
 ordinances. This limitation does not apply with reference to the 
 Territories ; for whereas with regard to the District it is pro- 
 vided that Congress shall exercise exclusive legislation in all cases 
 whatsoever, with regard to the Territories it is provided simply 
 that Congress shall have the power " to dispose of and make all 
 needful rules and regulation." There has thus been no question 
 but that, under this grant of authority, Congress may provide for 
 the establishment in the Territories of legislatures exercising full 
 law-making powers, subject of course to the provisions of the Con- 
 stitution arid to subsisting or subsequent acts of Congress. Thus, 
 for example, in Leitensdorfer v. Webb, 17 with reference to the 
 establishment of courts, the court declare: " It was, undoubtedly, 
 within the competency of Congress either to define directly, by 
 their own act, the jurisdiction of the courts created by them or 
 to delegate the authority requisite for that purpose to the terri- 
 torial governments." 
 
 1--202 U. S. 401; 26 Sup. Ct. Rep. 685; 50 L. ed. 1079. 
 
 is Chapter XXVI. 
 
 "20 How. 176; 15 L. ed. 891.
 
 CHAPTER XXVI. 
 
 THE DISTRICT OF COLUMBIA. 
 
 162. The Government of the District of Columbia. 
 
 The constitutional status of the district used as the seat of 
 the Federal Government is almost the same as that of the Terri- 
 tories. Clause 17 of Section VIII of Article I of the Constitution 
 empowers Congress " to exercise exclusive legislation in all cases 
 whatsoever over such district (not exceeding ten miles square) 
 as may by cession of particular States, and the acceptance of Con- 
 gress, become the seat of the Government of the United States." 
 
 In Loughborough v. Blake 1 Marshall declared the District of 
 Columbia to be a part of the " United States " within the nar- 
 rower constitutional meaning of the term, 2 and as such Congress 
 to be restrained when legislating for it, by the limitations appli- 
 cable generally to the United States as thus narrowly defined. 3 
 
 In Loughborough v. Blake 4 the question was as to the power of 
 Congress under a general law to levy and collect a direct tax in 
 the District of Columbia. In denial of this power it was argued 
 that while Congress might, when acting simply as a local legis- 
 lature, levy and collect such a tax for local purposes, in the same 
 manner that the legislature of a State might do, it might not do 
 so under its general taxing power, for the reason that the Constitu- 
 tion provides that " Representatives and direct taxes shall be ap- 
 
 15 Wh. 317; 5 L. ed. 98. 
 
 2 See, post, the discussion of the term in the Insular Cases. 
 
 'This dictum of Marshall's was later held by the Supreme Court in Downes 
 v. Bidwell (182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088) to be an 
 erroneous one; but these limitations upon the legislative power of C'ongiv--;. 
 though thus not immediately applicable have been by statute (16 Stat. at L. 
 42, act of July 21, 1871) extended over the District. Justice Brown, IU:\V<".<M-. 
 held that the District was entitled to these rights by reason of the fact 
 that it was once a part of a State entitled to them, and that these rights 
 having once attached, they were not, and could not, by cession of the 
 District to the United States, be taken away. 
 
 <5 Wh. 317; 5 L. ed. 98. 
 
 [372]
 
 Tin-: DISTRICT OF COLUMBIA. 373 
 
 portioned among the States which may be included within the 
 Union, according to their respective numb. To this, how- 
 
 ever, Marshall replied: "The object of this regulation is, we 
 think, to furnish a standard by which taxes are to be apportioned, 
 not to exempt from their operation any part of our country. Had 
 the intention been to exempt from taxation those who were not 
 represented in Congress, that intention would have been expressed 
 in direct terms." The grant to Congress of the " power to levy 
 and collect tax< >. duties, imposts and excises," is, Marshall de- 
 clared, a general grant without limitation as to place. " If this 
 could be doubted/' he continues, " the doubt is removed by the 
 subsequent won Is which modify the grant. These words are l but 
 all duti< . -N and excises shall be uniform throughout the 
 
 United States.' It will not be contended that the modification of 
 the power extends to places to which the power itself does not ex- 
 tend. The power, then, to levy and collect duties, imposts, and 
 excises, may lie exercised and must be exercised throughout the 
 United States. Does this term designate the whole, or any par- 
 ticular portion of the American empire \ Certainly this question 
 can admit of but one answer. It is the name given to crur great 
 republic, which is composed of States and Territories. The Dis- 
 trict of Columbia, or the Territory west of the MUsouri is not 
 lees within the United States than Maryland or Pennsylvania; 
 and it is not less necessary, on the principle of our -Constitution, 
 that uniformity in the imposition of imposts, duties, and excises, 
 should be observed in the one than in the other." 
 
 Marshall, however, goes on to argue that while the general grant 
 of power to lay and collect taxes is a general one and, therefore, 
 authorizes Congress to include the District and Territories, within 
 the oj>eration of a general direct tax ^in which case it must be 
 apportioned in such District and Territories according to their 
 re>nective populations) it does not follow that such areas must "be 
 included within the- operation of such laws. " If . . a direct 
 tax be laid at all, it must be laid on every State conformably to 
 the rule provided in the Constitution. Congress has clearly no 
 power to exempt any State from its due share of the burden. But
 
 374 UNITED STATES CONSTITUTIONAL LAW. 
 
 this regulation is expressly confined to the States, and creates no 
 necessity for extending the tax to the District or Territories," 
 
 In Hepburn v. Ellzey 5 it was held by Marshall in a very brief 
 opinion that a resident of the District of Columbia could not 
 maintain an action in a federal circuit court on the ground that 
 he was a citizen of another State, for the reason that the District 
 is not a State. The Chief Justice said : 
 
 " On the part of the plaintiffs it has been urged that Columbia 
 is a distinct political society; and is, therefore, 'a state' accord- 
 ing 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 becomes necessary to inquire whether Columbia is a state in the 
 sense of that instrument. The result of that examination is a 
 conviction that the members of the American confederacy only 
 are the states contemplated in the constitution. 
 
 " The house of representatives is to be composed of members 
 chosen by the people of the several states; and each state shall 
 have at least one representative. 
 
 " 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 consti- 
 tution as designating a member of the union, and excludes from 
 the term the signification attached to it by writers on the law of 
 nations. When the same term which has been used plainly in this 
 limited sense in the articles respecting the legislative and execu- 
 tive departments, is also employed in that which respects the 
 judicial department, it must be understood as retaining the sense 
 originally given to it. 
 
 " Other passages from the constitution have been cited by the 
 plaintiffs to show that the term state is sometimes used in its 
 more enlarged sense. But on examining the passages quoted, they 
 do not prove what was to be shown by them. 
 
 62 Cr. 445; 2 L. ed. 332.
 
 THE DISTRICT OF COLUMBIA. 375 
 
 " It is true that as citizens of the United States, and of that 
 particular district which is subject to the jurisdiction of Congress, 
 it is extraordinary that the courts of the United States, which are 
 open to aliens, and to the citizens of every state in the union, 
 should be closed upon them. But this is a subject for legislative, 
 not for judicial consideration." * 
 
 The District of Columbia though not a " State " in the sense in 
 which that word is used in the constitutional clause which gives 
 to the federal courts jurisdiction in suits between citizens of 
 different States, 6 it is declared in DeGeofroy v. Riggs, 7 to be a 
 State within the meaning of a treaty granting certain rights to 
 aliens within the u States of the Union." That the District is a 
 part of the United States internationally viewed was declared in 
 Loughborough v. Blake, and this dictum has never been ques- 
 tioned. 
 
 But with reference to the form of government to be given the 
 District, the authority of Congress is as absolute as we have seen 
 it to be with regard to the Territories. " The Congress of the 
 United States being empowered by the Constitution ' to exercise 
 exclusive jurisdiction in all cases whatever,' over the seat of the 
 Xutional Government, has the entire control over the District of 
 Columbia for every purpose of government, national or local. It 
 may exercise within the District all legislative powers that the 
 legislature of a State might exercise within a State." ' 
 
 The Constitution provides that Congress shall " exercise ex- 
 clusive legislation in all cases whatsoever " over such district as 
 should, by cession of particular States, become the seat of govern- 
 ment. To the author it would seem that the intent of those who 
 framed this provision was that by it Congress should be granted 
 authority exclusive of the State or States by which the district 
 might be ceded. Congress has, however, since the beginning, 
 acted upon the, assumption that by this provision it is intended 
 
 sHr-pburn v. Ellzey, 2 Cr. 445; 2 L. ed. 332; Hooe v. Jamieson, 166 U. S. 
 395; 17 Sup. Ct. Rep. 596; 41 L. ed. 1049. 
 
 7 133 U. S. 258 ; 10 Sup. Ct. Rep. 295 : 33 L. ed. f>42. 
 
 8 Capital Traction Co. v. Hof, 174 U. S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed. 
 873.
 
 376 UNITED STATES CONSTITUTIONAL LAW. 
 
 that while ordinary municipal powers, such as grants to a city, 
 may be delegated to the local governing body in the District, it 
 may not delegate to such body the general legislative powers pos- 
 sessed by a State of the Union. That, in other words, the legis- 
 lative authority over the District being vested by the Constitution 
 " exclusively " in Congress, it may not by delegation be exercised 
 by any other body. Thus, if we divide the governing powers in 
 the United States into national, state and local, it has been held 
 necessary that, as regards the District the first two must be exer- 
 cised by Congress itself. 
 
 It cannot be said that the Supreme Court has passed squarely 
 upon this point, but by various dicta this doctrine has been de- 
 clared. In Stoutenburgh v. Hennick, the court, after saying that 
 the creation of municipalities exercising local self-government 
 does not violate the rule that legislative powers may not be dele- 
 gated, go on to say : " But as the repository of the legislative 
 powers of the United States, Congress in creating the District of 
 Columbia ' a body corporate for municipal purposes ' could only 
 authorize it to exercise municipal powers." Strictly speaking, 
 this dictum was obiter as regards the delegation to the local body 
 of local legislative powers such as are exercised by the States, 
 within their several state limits, for the point actually determined 
 in the case was the constitutional inability of Congress to give to 
 the district government authority to legislate with reference to 
 & matter of national concern, namely, interstate commerce. It 
 is believed, however, that the long-continued legislative construc- 
 tion which has been consistently followed, reinforced by this and 
 other judicial dicta, makes very improbable the acceptance of 
 a different doctrine. 
 
 When legislating for the District, and the same is true as re- 
 gards the Territories, Congress acts not only as a local legislature 
 in the sense that a State acts a-s the local legislature for that State, 
 but also as a National Legislature. Whence it follows that the 
 laws thus enacted though of course only applicable to the local 
 
 9129 U. S. 141; 9 Sup. Ct. Rep. 256; 32 L. ed. 637. 
 
 i n C/. Eoach v. Eiswick, McArthur & Mackay, 171; Cohens v. Virginia, 
 6 Wh. 264; 5 L. ed. 257.
 
 THE DISTEICT OF COLUMBIA. ''7, 
 
 areas, the District or the Territories, especially referred to, are 
 yet national acts in that, so far as is necessary for their enforce- 
 ment, they have a validity throughout the Union, This doctrine 
 is clearly laid down by Marshall in Cohens v. Virginia," and 
 has not since been questioned. In that case the court say : 
 
 " The clause which gives exclusive jurisdiction is, unquestion- 
 ably, a part of the Constitution, and, as such, binds all the United 
 States. Those who contend that acts of Congress, made in pursu- 
 ance of this power, do not, like acts made in pursuance of other 
 powers, bind the nation, ought to show some safe and clear rule 
 which shall support this construction, and prove that an act of 
 Congress, clothed in all the forms which attend other legislative 
 acts, and passed in virtue of a power conferred on, and exercised 
 by Congress, as the legislature of the Union, is not a law of the 
 United States, and does not bind them. . . . The power vested 
 in Congress as the legislature of the United States, to legislate 
 exclusively within any place ceded by a State, carries with it, as 
 an incident, the right to make that power effectual If a felon 
 escapes out of the State in which the act has been committed, the 
 government cannot pursue him into another State, and apprehend 
 him there, but must demand him from the executive power of 
 that other State, If Congress were to be considered merely as 
 the local legislature for the fort or other place in which the of- 
 fense might be committed, then this .principle would apply to 
 them as to other local legislatures, and the felon who should 
 escape out of the fort, or other place, in which the felony may 
 have been committed, could not be apprehended by the marshal, 
 but must be demanded from the executive of the State. But we 
 know that the principle does not apply; and the reason is, that 
 Congress is not a local legislature, but exercises this particular 
 power, like -all its other jxiwers. in its high character, as the 1< 
 lature of the Union. The American people thought it a necessary 
 ] lower, and they conferred it for their own benefit Being so con- 
 ferred, it carries with it all those incidental powers which are 
 necessary to its complete and effectual execution." 
 
 11 6 Wh. 2C4 ; 5 L. ed. 257.
 
 378 UNITED STATES CONSTITUTIONAL LAW. 
 
 163. Places Purchased. 
 
 The same clause of the Constitution which grants to Congress 
 exclusive jurisdiction over the district to be selected for the seat 
 of the National Government, authorizes Congress " to exercise 
 like authority over all places purchased by the consent of the leg- 
 islature of the State in which the same shall be for the erection 
 of forts, magazines, arsenals, dockyards, and other needful 
 buildings." 
 
 The federal ownership of such tracts within the States is to be 
 sharply distinguished from political jurisdiction over them. This 
 latter, as the Constitution provides, may be obtained only when 
 the districts have been acquired with the consent of the States in 
 which they are situated. 
 
 The language of Clause 17 would seem to indicate that the 
 framers of the Constitution intended that the General Govern- 
 ment should or could acquire lands within the States only by 
 purchase and with the consent of the States. In practice, how- 
 ever, this consent has not always been obtained, or been deemed 
 necessary. But, in such cases, the political jurisdiction of the 
 State is not ousted, unless the lands are used for the purposes of 
 government. In Fort Leavenworth R. R. Co. v. Lowe 12 the court 
 say : " The consent of the States to the purchase of lands within 
 them for the special purposes named [in Clause 17] is ... 
 essential under the Constitution, to the transfer to the General 
 Government with the title, of political jurisdiction and dominion. 
 Where lands are acquired without such consent, the possession of 
 the United States, unless political jurisdiction be ceded to them 
 in some other way, is simply that of an ordinary proprietor. The 
 property in that case, unless used as a means to carry out the 
 purposes of the government, is subject to the legislative authority 
 and control of the States equally with the property of private 
 individuals." 
 
 Also, the General Government is able to acquire lands within 
 the States by the exercise of the right of eminent domain, a right 
 which it may employ when " necessary and proper " to the exer- 
 
 12 114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264.
 
 THE DISTRICT OF COLUMBIA. 379 
 
 cise of any of its expressly given powers. 13 When thus obtained, 
 the lands like those acquired by direct purchase and without the 
 consent of the States, remains subject to the general political 
 jurisdiction of the States in which they are located. As property 
 of the United States they are not, however, subject to taxation by 
 the States. 14 
 
 is Kohl v. United States, 91 U. S. 367; 23 L. ed. 449; St. Louis v. W. U. 
 Tel. Co., 148 U. S. 92. 
 
 "Van Brocklin v. Tennessee, 117 U. S. 151; 6 Sup. Ct. Rep. 670; 29 L. ed. 
 845.
 
 CHAPTEE XXVII. 
 
 MILITARY AND PRESIDENTIAL GOVERNMENT OF ACQUIRED 
 
 TERRITORY. 
 
 164. Conquest or Military Occupation does not Operate to 
 Annex Territory. 
 
 Mere conquest, that is, the occupation by military force of 
 foreign territory, is not sufficient to annex such territory to the 
 State whose forces are in possession of it. However, for the time 
 being, as a belligerent right, and from necessity, the entire control 
 of this area, its government, and the life and property of its in- 
 habitants are in the hands of the victorious power. The inhabit- 
 ants are no longer protected by the State whose forces have been 
 ousted, and for the time being owe no allegiance to it, but owe 
 an allegiance to the State which is in possession. 
 
 In the quite early case of United States v. Ilice 1 the doctrine 
 of military possession is discussed with reference to the port of 
 Castine, Maine, which, for a time during the War of 1812, was 
 in possession of the British military forces, but after peace was 
 restored, and returned to the United States. The court say: " It 
 appears, by the pleadings, that on the first day of September, 
 1814, Castine was captured by the enemy, and remained in his 
 exclusive possession, under the command and control of his mili- 
 tary and naval forces, until after the ratification of the treaty of 
 peace in February, 1815. . . . By the conquest and military 
 occupation of Castine, the enemy acquired that firm .possession 
 which enabled him to exercise the fullest rights of sovereignty 
 over that place. The sovereignty of the United States over the 
 territory was, of course, suspended, and the laws of the United 
 States could no longer be rightfully enforced there, or be obliga 
 tory upon the inhabitants who remained and submitted to the 
 conquerors. By the surrender the inhabitants passed under a 
 temporary allegiance to the British Government, and were bound 
 by such laws, and such only, as it chose to recognize and impose. 
 
 14 Wh. 246; 4 L. ed. 562. 
 
 [380]
 
 GOVERNMENT OF ACQUIRED TEERITOKY. 381 
 
 From the nature of the case, no other laws could be obligatory 
 upon them, far where there is no protection or allegiance or sov- 
 ereignty, there can be no claim to obedience. Castine was, there- 
 fore, during this period, so far as respected our revenue laws, to 
 be deemed a foreign port; and goods imported into it by the in- 
 habitants were subject to such duties only as the British Govern- 
 ment chose to require. Such goods were in no correct sense 
 imported into the United States. The subsequent evacuation by 
 the enemy, and resumption of authority by the United States, did 
 not, and could not, change the character of the previous trans- 
 actions." 
 
 Jn Fleming v. Page 2 the question arose whether duties levied 
 upon goods entering the United States from the port of Tampico, 
 at the time it was in the military possession of the United States, 
 were properly levied under the Act of Congress which imposed 
 duties upon goods imported from a foreign country. Taney, who 
 rendered the opinion of the court, said : " The Mexican authori- 
 ties had been driven out, or had submitted to our army and navy 
 and the country was in the exclusive and firm possession of the 
 United States and governed by the military authorities, acting 
 under the orders of the President. But it docs not follow that 
 it waa a part of the United States, or that it ceased to be a foreign 
 country, in the sense in which these words are used in the acts o 
 Congress. The country in question had been conquered in war. 
 But the genius and character of our institutions are peaceful and 
 the power to declare war was not conferred upon Congress for 
 the purposes of aggression or aggrandizement, but to enable the 
 General Government to vindicate by arms, if it should become 
 necessary, its own rights and the rights of its citizens. A war, 
 therefore, declared by Congress can never be presumed to be waged 
 for the pur]K)se of conquest or the acquisition of territory; nor 
 - rhe law declaring the war imply an authority to the President 
 to enlarge the limits of the United States by subjugating the 
 enemy's territory. The United States, it is true, may 
 enlarge its boundaries by conquest or treaty and may 
 
 29 How. 603; 13 L. cd. 276.
 
 382 UNITED STATES CONSTITUTIONAL LAW. 
 
 demand the cession of territory as a condition of peace 
 in order to indemnify its citizens for the injuries they 
 have suffered, or to reimburse the government for the expense of 
 the war ; but this can be done only by the treaty-making power or 
 the legislative authority, and is not a part of the power conferred 
 upon the President by the declaration of war. His duty and 
 power are purely military. . . . He may invade the hostile 
 country and subject it to the sovereignty and authority of the 
 United States; but his conquests do not enlarge the boundaries 
 of this Union nor extend the operations of our institutions and 
 laws beyond the limits before assigned to them by the legislative 
 power. It is true, that, when Tampico had been captured, and 
 the State of Tamaulipas subjugated, other nations were bound to 
 regard the country, while our possession continued, as the terri- 
 tory of the United States, and to respect it as such. For, by the 
 laws and usages of nations, conquest is a valid title, while the 
 victor maintains the exclusive possession of the conquered country. 
 The citizens of no other nation, therefore, had a right to enter 
 it without the permission of the American authorities, nor to hold 
 intercourse with its inhabitants, nor to trade with them. As 
 regarded all other nations, it was a part of the United States, and 
 belonged to them as exclusively as the territory included in our 
 established boundaries. But yet it was not a part of this Union. 
 For every nation which acquires territory by treaty or conquest, 
 holds it according to its own institutions and laws. And the rela- 
 tion in which the port of Tampico stood to the United States while 
 it was occupied by their arms did not depend upon the laws of 
 nations, but upon our own Constitution and acts of Congress. 
 The power of the President under which Tampico and the State 
 of Tamaulipas were conquered and held in subjection was simply 
 that of a military commander prosecuting a war waged against a 
 public enemy by the authority of his government. And the country 
 from which these goods were imported was invaded and subdued, 
 and occupied as the territory of a foreign hostile nation, as a 
 portion of Mexico, and was held in possession in order to distress 
 and harass the enemy. While it was occupied by our troops, they
 
 GOVERNMENT OF ACQUIRED TERRITORY. 383 
 
 were in an enemy's country, and not in their own ; the inhabitants 
 were still foreigners and enemies, and owed to the United States 
 nothing more than the submission and obedience, sometimes called 
 temporary allegiance, which is due from a conquered enemy, when 
 he surrenders to a force which he is unable to resist. But the 
 boundaries of the United States, as they existed when war was 
 declared against Mexico, were not extended by the conquest; nor 
 could they be regulated by the varying incidents of war, and be 
 enlarged or diminished as the armies on either side advanced or 
 retreated. They remained unchanged. And every place which 
 was out of the limits of the United States, as previously estab- 
 lished by the political authorities of the government, was still for- 
 eign; nor did our laws extend over it. Tampico was, therefore, 
 a foreign port when this shipment was made." 
 
 At first it may appear that the doctrine declared in Fleming v. 
 Page is not in harmony with that uttered in United States v. 
 Rice; for in the former case it was held that mere military occu- 
 pation was not sufficient to annex the territory occupied by the 
 United States; whereas, in the latter case, it was declared that 
 military occupation by the forces of another State did operate 
 to render the port foreign to the United States. If these two de- 
 cisions had been given by an international tribunal, or had had 
 reference to the status of the territories received internationally, 
 they undoubtedly would have been inharmonious. For, looked at 
 from the international side, a country belongs to that power 
 which is in effective control of it. Therefore, thus viewed, 
 Castine belonged to Great Britain while its military forces were 
 in paramount control of it. In like manner, Tampico, viewed 
 internationally, was a part of the United States, and other States 
 wniiM have held the United States responsible for anything that 
 might have occurred there while it was in possession. But when, 
 as was the case both in United States v. Rice and Fleming v. 
 Page, the question was purely one of domestic municipal law, it 
 was within the province of the Supreme Court to determine in 
 each case the status of the territory concerned according to the 
 peculiar municipal or constitutional law which it was interpreting
 
 38-t UNITED STATES COXSTITUTIOXAL LAW. 
 
 and applying- In other words, in the Fleming v. Page case the 
 Supreme Court would not have been justified in declaring that 
 Tarapico did not, during American occupancy, belong to the 
 United States in an international sense; whereas it was justified 
 in holding that from the viewpoint of American constitutional 
 law it was not a part of the United States, any more than, for 
 example, was Cuba during the time of its administration by 
 American, authorities. 3 
 
 In Xeely v. Henkel, 4 with reference to the status of Cuba. 
 during the American occupation, the Supreme Court say : " Cuba 
 is none the less foreign territory, within the meaning of the act 
 of Congress-, because it is nnder a military governor appointed 
 by and representing the President in the work of assisting the 
 inhabitants of that island to establish a government of their own, 
 under which, as a free and independent people, they may control 
 their own affairs without interference by other nations. The 
 
 3 In De Lima v. Bid-well (182 U. S. I; 21 Sup. Ct. Rep. T43 ; 45 L. ed. 
 1041) the court say: "It is not intended to intimate that the ca'Ses of 
 United States v. Rice and Fleming v. Page are not harmonious. In fact 
 they are perfectly consistent with each other. In the first case it was merely 
 held that duties could not be collected upon goods brought into a dome-tic 
 port during a temporary occupation by the enemy, though the enemy subse- 
 quently evacuated it; in the latter case, that the temporary military occupa- 
 tion by the United States of a foreign port did not make it a domestic port, 
 and that goods imported into the United States from that port were still 
 subject to duty. It would have been obviously unjust in the Rice case to 
 impose a duty upou. goods which might already have paid a duty to the 
 British commander. It would have been equally unjust in the Fleming case 
 to exempt the goods from duty by reason of our temporary occupation of the 
 port without a formal cession of such port to the United States." 
 
 This; reasoning, based simply on principles of justice or expediency, hardly 
 seems convincing, but that the two cases are not necessarily inharmonious has 
 been shown above in the text. 
 
 The dissenting justices in the De Lima case, however, held that the two 
 cases were harmonious, but not upon the grounds stated by the majority. 
 That which, in their opinion, justified the court in holding in the Fleming 
 case that Tampico was not within the scope of the United States tariff iaws 
 was because Congress had not so legislated as to bring it within a collection 
 district or to establish a custom house there. "At Castine," they say, " the 
 instrumentalities cf the custom laws had been divested, at Tampico they 
 had not been invested." 
 
 4130 U. S. 109: 21 Sup. Ct. Rep. 302; 45 L. ed. 448.
 
 GOVEEXMEXT OF AojI'IEED TEREITORY. 385 
 
 occupancy of the island by troops of the United States was the 
 necessary result of the war. The result could not have been 
 avoided by the United States consistently with the principles of 
 international law or with its obligations to the people of Cuba. 
 It is true that as between Spain and the United States indeed, 
 as between the United States and all foreign nations Cuba, 
 upon the cessation of hostilities with Spain and after the treaty 
 of Paris, was to be treated as if it were conquered territory. But 
 as between the United States and Cuba that island is territory 
 held in trust for the inhabitants of Cuba, to whom it rightfully 
 belongs, and to whose exclusive control it will be surrendered 
 when a stable government shall have been established by their 
 voluntary action." 
 
 In Dooley v. United States, 5 one of the " Insular Cases " de- 
 cided in 1901, the doctrine of Fleming v. Page is applied in fixing 
 the status of Porto Kico while under the military government of 
 the United States, but prior to the ratification of the treaty of 
 peace ceding the island to the United States. The court say: 
 " During this period the United States and Porto Rico were still 
 foreign countries with respect to each othef, and the same right 
 which authorized us to exact duties upon merchandise imported 
 from Porto Rico to the United States authorized the military 
 commander in Porto Rico to exact duties upon goods imported 
 into the island from the United States. The "fact that, notwith- 
 standing the military occupation of the United States, Porto Rico 
 remained a foreign country within the revenue laws, is established 
 by the case of Fleming v. Page/' 8 
 
 6 182 U. S. 222: 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. 
 
 President MoKinley was criticized, and with justice, for issuing on 
 December 21. IS'.H. that is. orr a date prior to the ratification of the treaty 
 with Spain coding the Philippines, an executive order in which he declared: 
 " With the signature of the treaty of peace between the United States and 
 Spain by their respective plenipotentiaries at Paris on the 10th instant, and 
 as the result of the victories of American arms, the future control, disposition, 
 and government of the Philippine Islands are ceded to the United States. 
 In fulfilment of the rights of sovereignty thus acquired, etc." The treaty 
 was not ratified by the treaty-making power of the United States until the 
 following February, and did not go into effect until April 11, 1899.
 
 386 UNITED STATES CONSTITUTIONAL LAW. 
 
 165. Authority of De Facto Governments. 
 
 The government established and maintained by one State in 
 military possession of territory of another, is, of course, a de facto 
 one, but de facto in a somewhat different sense from that of a 
 government established as a result of a rebellion or civil war. 
 But in either case the authority of the de facto government is to 
 an extent at least recognized. This is adverted to by the Supreme 
 Court in Thorington v. Smith 7 in passing upon the status of the 
 Confederate Government established during the Civil War. 8 
 
 78 Wall. 1; 19 L. ed. 361. 
 
 8 The court say : " There are several degrees of what is called de facto 
 government. Such a government, in its highest degree, assumes a character 
 very closely resemhling that of a lawful government. This is when the 
 usurping government expels the regular authorities from their customary 
 seats and functions, and establishes itself in their place, and so becomes the 
 actual government of a country. The distinguishing characteristic of such 
 a government is, that adherents to it in war against the government de jure 
 do not incur the penalties of treason; and under certain limitations, obliga- 
 tions assumed by it in behalf of the country, or otherwise, will, in general, 
 be respected by the government de jure when restored. It is very certain that 
 the Confederate Government was never acknowledged by the United States as 
 a de facto government in this sense. Nor was it acknowledged as such by 
 other powers. No treaty was made with it by any civilized State. No 
 obligations of a national character were created by it, binding after its 
 dissolution, on the States which it represented, or on the National Government. 
 From a very early period of the Civil War to its close, it was regarded as 
 simply the military representative of the insurrection against the authority 
 of the United States. 
 
 But there is another description of government, called also by publicists a 
 government de facto, but which might, perhaps, be more aptly denominated a 
 government of paramount force. Its distinguishing characteristics are (1) 
 that its existence is maintained by active military power within the Terri- 
 tories, and against the rightful authority of an established and lawful 
 government; and (2) that while it exists, it must necessarily be obeyed in 
 civil matters by private citizens who, by acts of obedience, rendered in sub- 
 mission to such force, do not become responsible, as wrongdoers, for those 
 acts, though not warranted by the laws of the rightful government. Actual 
 governments of this sort are established over districts differing greatly in 
 extent and conditions. They are usually administered directly by military 
 authority, but they may be administered also by civil authority, supported 
 more or less directly by military force. One example of this sort of govern- 
 ment is found in the case of Castine, ip Maine, reduced to British possession 
 during the war of 1812. ... A like example is found in the case of 
 Tampico, occupied during the war with Mexico by the troops of the United
 
 GOVERNMENT OF ACQUIKED TERRITORY. 387 
 
 166. Status of Conquered Domestic Territory. 
 
 In Xew Orleans v. Xew York Mail Steamship Co. 9 was con- 
 sidered the status of territory of the Southern Confederacy which 
 had been conquered by the federal forces. The court held that 
 the federal forces in possession might exercise the same absolute 
 authority as in the case of territory conquered from, a foreign 
 State. 10 
 
 States. It was determined by this court, in Fleming v. Page (9 How. 603; 
 13 L. ed. 276), that although Tampico did not become a port of the United 
 States in consequence of that occupation, still, having come together with the 
 whole State of Tamaulipas, of which it was part, into the exclusive possession 
 of the national forces, it must be regarded and respected by other nations as 
 the territory of the United States. These were cases of temporary possession 
 of territory by lawful and regular governments at war with the country of 
 which the territory so possessed was part. The central government estab- 
 lished for the insurgent States differed from the temporary governments at 
 Castine and Tampico in the circumstance that its authority did not originate 
 in lawful acts of regular war, but it was not, on that account, less actual or 
 less supreme. And we think that it must be classed among the governments 
 of which these are examples. It is to be observed that the rights and obliga- 
 tions of a belligerent were conceded to it, in its military character, very soon 
 after the war began, from motives of humanity and expediency by the United 
 States. The whole territory controlled by it was thereafter held to be 
 enemies' territory, and the inhabitants of that territory were held, in most 
 respects, for enemies. To the extent, then, of actual supremacy, however 
 unlawfully gained, in all matters of government within its military lines, 
 the power of the insurgent government cannot be questioned. That supremacy 
 did not justify acts of hostility to the United States. How far it should 
 excuse them must be left to the lawful government upon the re-establishment 
 of its authority. But it made obedience to its authority, in civil and local 
 matters, not only a necessity but a duty. Without such obedience, civil order 
 wa? impossible." 
 
 9 20 Wall. 387 ; 22 L. ed. 354. 
 
 10 "Although the City of New Orleans was conquered and taken possession 
 of in a civil war waged on the part of the United States to put down an 
 insurrection and restore the supremacy of the National Government in the 
 Confederate States, that government had the same power and rights in terri- 
 tory held by conquest as if the territory had belonged to a foreign country, 
 and had been subjugated in a foreign war. The Prize Cases, 2 Black, 635; 
 17 L. ed. 4oO : Mr. Alexander's Cotton, 2 Wall. 404; 17 L. ed. 915; 
 Muuran v. Ins. Co., 6 Wall. 1 ; 18 L. ed. 836. In such cases the conquering 
 power has a right to displace the pre-existing authority, and to assume, to 
 such extent as it may deem proper, the exercise by itself of all the powers 
 and functions of government. It may appoint all the necessary officers and 
 clothe them with designated powers, larger or smaller, according to its
 
 388 UNITED STATES CONSTITUTIONAL LAW. 
 
 167. Presidential Governments. 
 
 In 1846, during the war with Mexico, the United States mili- 
 tary forces took possession of Upper California. In 1847 the 
 President as Commander-in-Chief of the army and navy author- 
 ized the establishment, by the military commanders, of a civil and 
 military government for the conquered territory. This was done. 
 In Cross v. Harrison 11 the question was raised whether this gov- 
 ernment might lawfully continue its existence after the date of 
 the treaty of peace by which the territory was formally annexed 
 to the United States, and until Congress had legislated for its 
 government. In deciding this in the affirmative, the court said: 
 " The territory had been ceded as a conquest, and was to be pre- 
 served and governed as such until the sovereignty to which it had 
 passed had legislated for it. That sovereignty was the United 
 States, under the Constitution, by which power had been given to 
 Congress to dispose of and make all needful rules and regulations 
 respecting the territory or other property belonging to the United 
 States, with the power also to admit new States into this Union, 
 with only such limitations as are expressed in the section in which 
 this power is given. The government of which Colonel Mason was 
 the executive, had its origin in the lawful exercise of a belligerent 
 right over a conquered territory. It has been instituted during 
 the war by the command of the President of the United States. 
 It was the government when the Territory was ceded as a ecu- 
 pleasure. It may prescribe the revenues to be paid, and apply them to its 
 own use or otherwise. It may do anything necessary to strengthen itself and 
 weaken the enemy. There is no limit to the powers that may be exerted in 
 such eases, save those which are found in the laws and usages of war. These 
 principles have the sanction of all publicists who have considered the subject. 
 They have been, repeatedly recognized and applied by this court. Cross v. 
 Harrison, 16 How. 164; 14 L. e d. 889; Leitensdorfer v. Webb, 20 How. 176; 
 15 L. ed. 891; The Grapeshot, 9 Wall. 129; 19 L. ed. 651. In the case 
 last cited the President had, by Proclamation, established in Xew Orleans a 
 Provisional Court for the State of Louisiana, and denned its jurisdiction. 
 This court held the Proclamation a rightful exercise of the power of the 
 Executive, the court valid, and its decrees binding upon the parties brought 
 before it. In such cases the laws of war take the place of the Constitution 
 and. laws of the United States as applied in time of peace." 
 11 16 How. 164; 14 L. edL 889.
 
 GOVERNMENT OF ACQUIRED TiRJIlTORl. 
 
 quest, and it did not cease, as a matter of course, or as a necessary 
 consequence of the restoration of peace. The President might 
 have dissolved it by withdrawing the army and navy officers who 
 administered it, but he did not do so. Congress could have put 
 an end to it, but that was not done. The right inference from the 
 inaction of both is, that it was meant to be continued until it had 
 been legislatively changed. Xo presumption of a contrary inten- 
 tion can be made. Whatever may have been the causes of delay, 
 it must be presumed that the delay was consistent with the true 
 policy of the government. And the more so as it was continued 
 until the people of the territory met in convention to form a state 
 government, which was subsequently recognized by Congress 
 under its powers to admit new States into the Union." 
 
 The government maintained by the President over a conquered 
 territory being belligerent, is, as is stated in the paragraph quoted 
 above, absolute in character, according to the general doctrines 
 of international law regarding military occupation: " It may do 
 anything necessary to strengthen itself and weaken the enemy. 
 There is no limit to the powers that may be exerted in such cases, 
 save those which are found in the laws and usages of war." 12 
 
 12 When, after the capitulation of the Spanish forces in Santiago, Cuba, tho 
 military forces of the United States took possession of the eastern part of the 
 nee, the President instructed the military commander, infer alia, as fol- 
 lows: "The first effect of the military occupation of the enemy's territory 
 is the severance of the former political relations of the inhabitants and the 
 establishment of a new political power. Under this changed condition of 
 things the inhabitants, so long as they perform their duties, are entitled to 
 security in their persons and property and in all their rights and relations. 
 All persons who either by active aid or by honest stfrmission, 
 co-operate with the United States to give effect to this beneficent ptrrpose will 
 receive the reward of its support and protection. Our occupation should be 
 as free from severity as possible. Though the powers of the military occupant 
 are absolute and supreme and immediately operate upon the political con- 
 dition of the inhabitants, the municipal laws nf the conquered territory, such 
 as affect private rights nf persons and property and provide for the punish- 
 ment of crime, are considered as continuing in force, so far as tVy are com- 
 patible with the new order of things, until they are suspended or superseded 
 by ilie occupying belligerent: and in practice they are not usually abrogated, 
 but are allowed to remain in force and to be administered by the ordinary 
 tribunals, substantially as they were before occupation. This enlightened 
 practice is, so far as possible, to be adhered to on the present occasion. The
 
 390 UNITED STATES" CONSTITUTIONAL LAW. 
 
 "We have seen from the preceding cases that the power of the 
 President, as Commander-in-Chief of the army and navy, is prac- 
 tically absolute over conquered territory. And also, that this 
 power persists after the formal annexation of the territory in 
 question to the United States and until Congress legislates for its 
 
 judges and other officials connected with the administration of justice may. if 
 they accept the supremacy of the United States, continue to administer the 
 ordinary law of the land, as between man and man, under the supervision of 
 the American commander-in-chief. The native constabulary will, so far as 
 may be practicable, be preserved. The freedom of the people to pursue their 
 accustomed occupation will be abridged only when it may be necessary to do 
 so. While the rule of conduct of the American commander-in-chief will be 
 such as has just been defined, it will be his duty to adopt measures of a 
 different kind if, unfortunately, the course of the people should render such 
 measures indispensable to the maintenance of law and order. He will then 
 possess the power to replace or expel the native officials in part or alto- 
 gether; to substitute new courts of his own constitution for those that now 
 exist, or to create such new or supplementary tribunals as may be necessary. 
 In the exercise of these high powers the commander must be guided by his 
 judgment and his experience and a high sense of justice. One of the most 
 important and most practical problems with which it will be necessary to 
 deal is that of the treatment of property and the collection and administra- 
 tion of the revenues. It is conceded that all public funds and securities 
 belonging to the government of the country in its own right, and all arms 
 and supplies and other movable property of such government, may be seized 
 by the military occupant and converted to his own use. The real property 
 of the State he may hold and administer, at the time enjoying the revenues 
 thereof, but he is not to destroy it save in the case of military necessity. 
 All public means of transportation, such as telegraph lines, cables, railways, 
 and boats, belonging to the State may be appropriated to his use, but, unless 
 in case of military necessity, they are not to be destroyed. All churches and 
 buildings devoted to religious worship and to the arts and sciences, all school- 
 houses, are, so far as possible, to be protected, and all destruction or inten- 
 tional defacement of such places, of historical monuments or archives, or 
 works of science or art is prohibited, save when required by urgent military 
 necessity. Private property, whether belonging to individuals or corpora- 
 tions, is to be respected, and can be confiscated only for cause. [Means of 
 transportation, such as telegraph lines or cables, railways and boats, may, 
 although they belong to private individuals or corporations, be seized by the 
 military occupant, but unless destroyed under military necessity are not to 
 be retained. While it is held to be the right of the conqueror to levy con- 
 tributions upon the enemy in their seaports, towns, or provinces which may 
 be in his military possession by conquest, and to apply the proceeds to defray 
 the expense of the war, this right is to be exercised within such limitations 
 that it may not savor of confiscation. As the result of military occupation
 
 GOVERNMENT OF ACQUIRED TERRITORY. 391 
 
 government. It would appear, however, that during this latter 
 period, the President's power is not so absolute as in the period 
 prior to annexation. Absolute power, according to American con- 
 stitutional doctrines, is only justified by military necessity, and, 
 therefore, with the cessation of hostilities and the annexation of 
 the territory by which it is brought within the general province 
 of the American doctrine, there spring up certain limitations 
 upon the President's governing power. 13 The extent of these 
 limitations will be discussed in a later chapter dealing with 
 martial and military law, and with the doctrines laid down by 
 the Supreme Court in the " Insular Cases " determining the po- 
 litical status and the civil rights of the inhabitants of the islands 
 acquired in 1898 from Spain. 
 
 the taxes and duties payable by the inhabitants to the former government 
 become payable to the military occupant, unless he sees fit to substitute for 
 them other rates or modes of contribution to the expenses of the government. 
 The moneys so collected are to be used for the purpose of paying the expenses 
 of government under the military occupation, such as the salaries of the judges 
 and the police, and for the payment of the expenses of the army. Private 
 property taken for the use of the army is to be paid for, when possible, in 
 cash at a fair valuation, and when payment in cash is not possible receipts 
 are to be given. All ports and places in Cuba which may be in the actual 
 possession of our land and naval forces will be opened to the commerce of all 
 neutral nations, as well as our own, in articles not contraband of war, upon 
 payment of the prescribed rates of duty which may be in force at the time of 
 the importation." Moore Digest of Int. Law, VII, 1143. The order was 
 issued July 18, 1898. 
 
 13 See, for example, the language of the court in Dooley v. United States, 
 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.
 
 CHAPTER XXVIII. 
 
 THE ANNEXATION OF TERRITORY BY TREATY. 
 
 168. Congressional Action not Needed to Complete Annexa- 
 tion of Territory Acquired by Treaty. 
 
 That, under the treaty-making power provided in the Constitu- 
 tion, a foreign country may be brought under the sovereignty of 
 the United States, and thus, from the viewpoint of international 
 law, become a part of it, is, as we have seen, beyond question. 
 In De Lima v. Bidwell, 1 one of the u Insular Cases," decided in 
 1901, was urged the point, however, that, before such an annexed 
 territory can. become " domestic " territory and as such be 
 brought, ipso facto, under the operation of the federal laws gen- 
 erally, an act of Congress to that effect is necessary. 
 
 Prior to this De Lima case, this question had been several times 
 raised, especially with reference to the immediate applicability of 
 the revenue laws of the United States to annexed territories, but 
 had never been thoroughly discussed, nor had administrative prac- 
 tice always been harmonious with judicial pronouncements, or 
 these judicial pronouncements harmonious with one another. 
 
 In Fleming v. Page, 2 decided in 1850, it was held, as we have 
 seen, that conquest and military occupation of a foreign district 
 did not, ipso jacio, make that district a part of the L^nited States, 
 and, therefore, that duties were properly levied upon goods im- 
 ported therefrom into the United States under the act of Con- 
 gress imposing duties upon imports from foreign countries. 
 Taney, however, in his opinion went further than the facts of the 
 case necessitated, and adverted to the circumstance that the ad- 
 ministrative department of the government had, as a rule, con- 
 tinued to treat territory acquired by treaty as foreign until 
 Congress by legislation had extended over it its revenue laws. 3 
 
 1 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. eel. 1041. . 
 
 2 9 How. 603 ; 13 L. ed. 276. 
 
 3 He said: " This construction of the revenue laws has been uniformly 
 given by the administrative department of the government in every case that 
 
 [392]
 
 THE -A:< -\EXATIU-\ OF 1 EKUITOKY BY TfiEATY. 393 
 
 168. Cross v. Harrison. 
 
 Iii Cross v. Harrison, 4 however, decided in 1853, it was held 
 by a unanimous court, including Chief Justice Taney himself, 
 that by the ratin'catiou of the treaty of 1848 between Mexico and 
 the United States, California became a part of the United States, 
 and the tariff laws of the United States then in force ipso facto 
 applicable to it 
 
 The treaty which fixed the boundary between Mexico and the 
 United States was ratitied May 30, 1848. The de facto military 
 government continued in force after this date, but, after official 
 
 has come before it. And it lias, indeed, been given in cases where there 
 appears to have been stronger ground for regarding the place of shipment as 
 a domestic port. For after Florida had been ceded to the United States, and 
 the forces of the United States had taken possession of Pensacola, it was 
 decided by the Treasury Department, that goods imported from Pensacola 
 before an act of Congress was,jpassed erecting it into a collection district, 
 and authorizing the appointment of a collector, were liable to duty. That is, 
 although Florida had by cession, actually become a part of the United 
 States, and was in our possession, yet under our revenue laws, its ports must 
 ba regarded as foreign until they were established as domestic by act of 
 Congress; and it appears that this decision was sanctioned at the time by the 
 Attorney-General of the United States, the law officer of the government. 
 And, although not s/) directly applicable to the case before us, yet the 
 decisions of the Treasury Department in relation to Amelia Island, and 
 certain ports in Louisiana, after that province had been ceded to the United 
 States, were both made upon the same grounds. And in the latter case, after 
 a cu-tom-house h;id been established by law at New Orleans, the collector at 
 that place was instructed to regard as foreign ports Baton Rouge and other 
 settlements still in the p issession of Spain, whether on the Mississippi, Iber- 
 ville, or the seacoast. The department in no instance that we are aware of, 
 since the establishment of tlte government, has ever recognized a place in a 
 newly-acquired country as a domestic port, from, which the coasting trade 
 might l>e carried on, unless it had been previously made so by an act of 
 Congress. The principle thus adopted and acted upon by the Executive 
 Department of the government has been sanctioned by the decisions in this 
 court and the circuit courts whenever the question came before them. We 
 do r.ot propose to comment upon the different cases cited in the argument. 
 It is sufficient to say that there is no discrepancy between them. And all of 
 them, so far as they apply, maintain that tinder our revenue laws every port 
 is regarded as a foreign one. \mle=s the custom-house from which the vessel 
 clears is within a collection district established by act of Congress, and the 
 officers granting the clearance exercise their functions under the authority and 
 control of the laws of the United States," 
 * 16 How. 164 ; 14 L. ed. 889.
 
 394 UMTED STATES CONSTITUTIONAL LAW. 
 
 notice of the treaty was received, the commander in charge ceased 
 collecting the military duties which he had been imposing, and 
 substituted therefor duties imposed by the revenue laws of the 
 United States. He reported this to the President and his action 
 was approved. By a letter of October 9, 1848, the Secretary of 
 War instructed the commander that " the government de facto 
 can of course exercise no v powers inconsistent with the provisions 
 of the Constitution of the United States, which is the supreme 
 law of the States and Territories of our Union. For this reason 
 no import duties can be levied in California on articles of growth, 
 produce, or manufacture of any State or Territory of the United 
 States, and no such duties can be imposed in any part of the 
 Union on the productions of California ; nor can duties be charged 
 on such foreign productions as have already paid duties in any 
 port of the United States." 5 
 
 5 The Secretary of the Treasury also at this time issued a circular ( October 
 7, 1848), in which he declared: "By the treaty with Mexico, California is 
 annexed to this Republic, and the Constitution of the United States is ex- 
 tended over that Territory and is in full force throughout its limits." " Con- 
 gress also," he added, " by several enactments subsequent to the ratification of 
 the treaty, have distinctly recognized California as a part of the Union, and 
 have extended over it in several particulars the laws of the United States. 
 Under these circumstances the following instructions are issued by this 
 Department : 
 
 " First. All articles of the growth, produce, or manufacture of California 
 shipped therefrom at any time since the 30th of May last are entitled to 
 admission free of duty into all ports of the United States. 
 
 " Second. All articles of the growth, produce, or manufacture of the United 
 States are entitled to admission free of duty into California, as are also all 
 foreign goods which are exempt from duty by the laws of Congress, or on 
 which goods the duties prescribed by those laws have been paid to any 
 collector of the United States previous to their introduction into California. 
 
 " Third. Although the Constitution of the United States extends to Cali- 
 fornia, and Congress has recognized it by law as a part of the Union and legis- 
 lated over it as such, yet it is not brought by law within the limits of any 
 collection district, nor has Congress authorized the appointment of any officers 
 to collect the revenue accruing on the import of foreign dutiable goods into 
 that territory. Under these circumstances, , although this Department may 
 be unable to collect the duties accruing on importations from foreign countries 
 into California, yet if foreign dutiable goods should be introduced there and 
 shipped thence to any port or place of the United States they will be subject 
 to duty, as also to all the penalties prescribed by law when such importation 
 is attempted without payment of duties."
 
 THE ANNEXATION OF TERRITORY BY TREATY. 395 
 
 Acting in accordance with these instructions, the existing tariff 
 and navigation laws of the United States were enforced by the 
 de facto government. In Cross v. Harrison the legality of this 
 action was sustained. In passing upon the status and power of 
 the government after the treaty of peace, the court said : " It was 
 urged that our revenue laws covered only so much of the territory 
 of the United Statgs as had been divided into collection districts, 
 and that out of them no authority had been given to prevent the 
 landing of foreign goods, or to charge duties upon them, though 
 such landing had been made within the territorial limits of the 
 United States. To this it may be successfully replied that collec- 
 tion districts and ports of entry were no more than designated 
 localities within and at which Congress had extended a liberty 
 of commerce in the United States, and that so much of its terri- 
 tory as was not within any collection district must be considered as 
 having been withheld from that liberty. It is very well under- 
 stood to be a part of the laws of nations, that each nation may 
 designate, upon its own terms, the ports and places within its 
 territory for foreign commerce, and that any attempt to introduce 
 foreign goods elsewhere within its jurisdiction is a violation of its 
 sovereignty. It is not necessary that such should be declared in 
 terms, or by any degree or enactment, the expressed allowances 
 being the limit of the liberty given to foreigners to trade with 
 such nations. Upon this principle, the plaintiffs had no right of 
 trade with California with foreign goods, excepting from the per- 
 mission given by the United States under the civil government 
 and war tariff which had been established there. And when the 
 country was ceded as a conquest, by a Treaty of Peace, no larger 
 liberty to trade resulted. By the ratifications of the Treaty, Cali- 
 fornia became a part of the United States. And as there is noth- 
 ing differently stipulated in the Treaty with respect to commerce, 
 it became instantly bound and privileged by the laws which Con- 
 gress had passed to raise a revenue from duties on imports and 
 tonnage. . . . The right claimed to land foreign goods within 
 the United States at any place out of a collection district, if al- 
 lowed, would be a violation of that provision in the Constitution
 
 390 UNITED STATES CONSTITUTIONAL LAW. 
 
 which enjoins that all duties, imposts and excises, shall be uniform 
 throughout the United States, indeed, it must be very clear that 
 no such right exists, and that there is nothing in the condition 
 of California to exempt importers of foreign goods into it from 
 the payment of the same duties which were chargeable in the other 
 ports of the United States. As to the denial of the authority of 
 the President to prevent the landing of foreign goods in the 
 United States out of a collection district, it can only be necessary 
 to say, if he did not do so, it would be a neglect of his constitu- 
 tional obligation ' to take care that the laws be faithfully exe- 
 cuted.' ... In respect to the suggestion that it has not been 
 the practice of the United States to collect duties upon importa- 
 tions of foreign goods into a ceded Territory until Congress had 
 passed an act for that purpose, counsel cited the cases of Louisiana 
 and Florida. The reply is, that the facts in respect to both have 
 not been recollected. There was no forbearance in either in- 
 stance, in respect to duties upon imports, until Congress had 
 acted." 
 
 170. De Lima v. Bid well. 
 
 In De Lima v. Bidwell, 6 with reference to the island of Porto 
 Rico, the court held itself governed by the doctrine declared in 
 Cross v. Harrison. It agreed with the declaration in Fleming v. 
 Page that by mere military occupation a .port did not become 
 " domestic," and as such subject to the general revenue laws of 
 the United States, but with reference to the dictum of Taney that 
 it remained foreign because the United States customs laws had 
 not been formally extended over it, the majority in their opinion 
 observed : " While we see no reason to doubt the conclusion of the 
 court that the port of Tampico was still a foreign port, it is not 
 perceived why the fact that there was no act of Congress establish- 
 ing a custom-house there, or authorizing the appointment of a 
 collector, should have prevented the collector Appointed by the 
 military commander from granting the usual documents required 
 to be issued to a vessel engaged in the coasting trade. A collector, 
 
 6 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.
 
 THE ANNEXATION OF TERRITORY BY TREATY. 397 
 
 though appointed by a military commander, may be presumed to 
 have the ordinary power of a collector under an act of Congress, 
 with authority to grant clearances to ports within the United 
 States, though, of course, he would have no power to make a 
 domestic jvjrt of what was in reality a foreign port." 7 
 
 After quoting at length, and with approval, from Cross v. Har- 
 rison, the majority opinion continues: "The opinion, which is 
 quite a long one, establishes the three following propositions: 
 (1 ) That under the war power the military governor of California 
 was authorized to prescribe a scale of duties upon importations 
 from foreign countries to San Francisco, and to collect the same 
 through a collector appointed by himself, until the ratification of 
 the treaty of peace. (2 ) That after such ratification duties were 
 legally exacted under the tariff laws of the United States, which 
 took effect immediately. (3) That the civil government estab- 
 lished in California continued, from the necessities of the case, 
 until Congress provided a territorial government. It will be seen 
 that the three propositions involve a recognition of the fact that 
 California became domestic territory immediately upon the rati- 
 fication of the treaty, or, to speak more accurately, as soon as this 
 was officially known in California. The doctrine that a port 
 ceded to and occupied by us does not lose its foreign character 
 until Congress has acted and a collector is appointed was dis- 
 tinctly repudiated with the apparent acquiesence of Chief Jus- 
 tice Taney, who wrote the opinion in Fleming v. Page, and still 
 remained the Chief Justice of the court. The opinion does not 
 involve directly the question at issue in this case ; whether goods 
 carried from a port in- a ceded territory directly to Xew York 
 are subject to duties, since the duties in Cross v. Harrison were 
 exacted upon foreign goods imported into San Francisco as an 
 American port ; but it is impossible to escape the logical 
 inference from that case that goods carried from San Francisco 
 to ]\'<>w York after the ratification of the treaty would not be 
 considered as imported from a foreign country." 
 
 " Sec ante. p. 384. for manner in which the court harmonizes the doctrine 
 stated in U. S. v. Rice with that declared in Fleming v. Page.
 
 398 UNITED STATES CONSTITUTIONAL LAW. 
 
 The court then examines the practice and rulings of the execu- 
 tive department of the United States with respect to the status 
 of newly acquired territories prior to their status being settled 
 by acts of Congress and finds these rulings and practice, with the 
 single exception of an order of Secretary of State Gallatin in 
 1803, to be in conformity with the position of the court in Cross 
 v. Harrison. 
 
 As showing the construction put upon this question by the 
 legislative department, the court quotes from section 2 of the 
 Foraker Act establishing civil government in Porto Rico, which 
 " makes a distinction between foreign countries and Porto Rico, 
 by enacting that the same duties shall be paid upon ' all articles 
 imported into Porto Rico from ports other than those of the 
 United States, which are required by law to be collected upon 
 articles imported into the United States from foreign countries.' ' 
 
 The opinion, then, summing up the precedents, says : " From 
 this resume of the decisions of this court, the instructions of the 
 executive department, and the above act of Congress, it is evi- 
 dent that, from 1803, the date of Mr. Gallatin's letter, to the 
 present time, j;here is not a shred of authority, except the dictum 
 in Fleming v. Page (practically overruled in Cross v. Harrison), 
 for holding that a district ceded to and in the possession of the 
 United States remains for any purpose a foreign country. Both 
 these conditions must exist to produce a change of nationality for 
 revenue purposes. Possession is not alone sufficient as was held 
 in Fleming v. Page; nor is a treaty ceding such territory suffi- 
 cient without a surrender of possession. Keene v. M'Donough, 
 8 Pet. 308; 8 L. ed. 955; Pollard v. Kibbe, 14 Pet. 353; 10 
 L. ed. 490; Hallett v. Doe ex dem. Hunt, 7 Ala. 899; The 
 Fama, 5 C. Rob. 106. The practice of the executive departments, 
 thus continued ior more than half a century, is entitled to great 
 weight, and should not be disregarded nor overturned except for 
 cogent reasons, and unless it be clear that such construction be 
 erroneous. United States v. Johnston, 124 U. S. 236 ; 8 Sup. Ct. 
 Rep. 446 ; 31 L. ed. 389, and other cases cited."
 
 THE ANNEXATION OF TEEKITOKY BY TREATY. 399 
 
 The court then goes on to declare that even were the question 
 presented as an original one, it would be irresistibly impelled 
 to the conclusion which the precedents had furnished. This 
 result, it is argued, is deducible from the fact that by the Con- 
 stitution treaties equally with acts of Congress are declared to 
 be the supreme law of the land, and that one of the ordinary inci 
 dents of a treaty is the cession of territory. " The territory thus 
 acquired is acquired as absolutely as if the annexation were made, 
 as in the case of Texas and Hawaii, by an act of Congress." 
 
 " The theory that a country remains foreign with respect to the 
 tariff laws until Congress has acted by embracing it within the 
 customs union presupposes that a country may be domestic for 
 one purpose and foreign for another. It may undoubtedly become 
 necessary, for the adequate administration of a domestic territory, 
 to pass a special act providing the proper machinery and officers, 
 as the President would have no authority, except under the war 
 power, to administer it himself ; but no act is necessary to make it 
 domestic territory if once it has been ceded to the United States. 
 . . . This theory also presupposes that territory may be held 
 indefinitely by the United States; that it may be treated in every 
 particular, except for tariff purposes, as domestic territory; that 
 laws may be enacted and enforced by officers of the United States 
 sent there for that purpose ; that insurrections may be suppressed, 
 wars carried on, revenues collected, taxes imposed; in short, that 
 everything may be done which a government can do within its 
 own boundaries, and yet that the territory may still remain a 
 foreign country. That this state of things may continue for years, 
 for a century even, but that until Congress enacts otherwise, it 
 still remains a foreign country. To hold that this can be done as 
 matter of law we deem to be pure judicial legislation. We find 
 no warrant for it in the Constitution or in the powers conferred 
 upon this court. It is true the nonaction of Congress may occa- 
 sion a temporary inconvenience ; but it does not follow that courts 
 of justice are authorized to remedy it by inverting the ordinary 
 meaning of words."
 
 400 UNITED STATES CONSTITUTIONAL LAW. 
 
 171. Dooley v. United States. 
 
 Applying the doctrine of Be Lima v. Bidwell, the Supreme 
 Court in another of the Insular Cases (Dooley v. L'nited States), 8 
 held that though, after the treaty of peace providing for the 
 annexation of Porto Rico, the military government might continue 
 until Congress should provide the island Avith a civil government 
 (according to the doctrine of Cross v. Harrison), the island was 
 no longer " foreign territory " and, therefore, under the then exist- 
 ing revenue laws of the United States, providing for the levying 
 of customs duties on goods imported from foreign countries, that 
 duties might not be levied upon importations into the United 
 States from Porto Rico, nor from the United States into that 
 island. With reference to these latter, the court said : " The 
 spirit as well as the letter of the tariff laws admits of duties 
 being levied by a military commander only upon importations 
 from foreign countries; and, while his power is necessarily des- 
 potic, this must be understood rather in an administrative than 
 in a legislative sense. While in legislating for a conquered 
 country he may disregard the laws of that country, he is not 
 wholly above the laws of his own. For instance, it is clear that, 
 while a military commander during the Civil War was in the 
 occupation of a southern port he could impose duties upon mer- 
 chandise arriving from abroad, it would hardlj be contended that 
 he could also impose duties upon merchandise arriving from 
 ports of his own country. . His power to administer would be 
 absolute, but his power to legislate would not be without certain 
 restrictions in other words, they would not extend beyond the 
 necessities of the case. Thus, in the case of The Admittance 
 (Jecker v. Montgomery, 13 How. 498; 14 L. ed. 240) it was 
 held that neither the President nor the military commander could 
 establish a court of prize competent to take jurisdiction of a case 
 of capture, whose judgments would be conclusive in other ad- 
 miralty courts. It was said that the courts established in Mexico 
 during the war ' were nothing more than the agents of the mili- 
 tary power, to assist it in preserving order in the conquered terri- 
 
 8 182 U. S. 222; 21 Sup. Ct. Eep. 762; 45 L. ed. 1074.
 
 THE AXXEXATIOX or TERKITOEY BY TKEATY. 401 
 
 tory. and to protect the inhabitants in their persons and property, 
 while it was occupied by the American arms. They were sub- 
 ject, to the military power, and their decisions under its control, 
 whenever the commanding officer thought proper to interfere. 
 They were not courts of the United State*, and had no right to 
 adjudicate upon a question of prize or no prize, although Con- 
 gress, in the exercise of its general authority in relation to the 
 national courts, would have power to validate their action. The 
 Grapeshot, sub noui. The Grapeshot v. Wallerstein, 9 WalL 129, 
 19 L. ed. 651. So, too, in Mitchell y. Harmony (13 How. 115; 
 14: L. ed. 75) it was held that, where the plaintiff entered Mexico 
 during the war with that country, under a permission of the com- 
 mander to trade with the enemy and under the sanction, of the 
 executive power of the United States, his property would not be 
 liable to seizure by law for such trading, and that the officer direct- 
 ing the seizure was liable to an action for the value of the prop- 
 erty taken. To the same effect is Mostyn y. Fabrigas, 1 Cowp. 
 l-o. In Raymond y. Thomas (91 U. S. 712; 23 L. ed. 434) a 
 special order, by the officer in command of the forces in the State 
 of South Carolina, annulling a decree rendered by a court of 
 chancery in that State, was held to be void. In delivering the 
 opinion Mr. Justice Swayne observed : ' Whether Congress could 
 have conferred the power to do such an act is a question we are 
 not called upon to consider. It is an unbending rule of law, that 
 the exercise of military power, where the rights of the citizen 
 are concerned, shall never be pushed beyond what the exigency 
 requires.' Without questioning at all the original validity of the 
 order imposing duties upon goods imported into Porto Rico from 
 foreign countries, we think the proper construction of that order 
 is that it ceased to apply to goods imported from the United States 
 from the moment the United States ceased to be a foreign country 
 with respect to Porto Rico, and that, until Congress otherwise con- 
 stitutionally directed, such merchandise was entitled to free 
 entry/' 
 
 The same four justices dissented in the Dooley case that had 
 dissented in the De Lima case. The dissent, however, was not
 
 402 UNITED STATES CONSTITUTIONAL LAW. 
 
 with reference to the validity of the duties levied prior to the 
 ratification of the treaty of peace, but only with reference to those 
 exacted after that date. These, the dissentient judges held to 
 have been validly levied. After summarizing their arguments in 
 the De Lima case, the dissenting opinion declares that, inasmuch 
 as the court, had just decided in Downes v. Bidwell that, despite 
 the treaty of cession, Porto Rico had remained in a position where 
 Congress could impose a tariff duty on goods coming from that 
 island into the United States, it should not be held that that 
 island ceased to be " foreign " within, at least, the meaning of 
 the tariff laws. " The command in tariff laws," reads the opinion, 
 " that import duties should be collected on all merchandise com- 
 ing from ' foreign countries,' is but a provision that they are to 
 be levied on merchandise arriving from countries which are not 
 a part of the United States, within the meaning of the tariff laws, 
 and which are hence subject to such duties. It must follow that, 
 as long as a locality is in a position where it is subject to the 
 power of Congress to levy an import tariff duty on merchandise 
 coming from that country into the United States, such country 
 must be a foreign country within the meaning of the tariff laws." 
 In the case The Diamond Rings, 10 decided in 1901, the court 
 applied the doctrine of De Lima v. Bidwell in fixing the status 
 of the Philippine Islands subsequent to the treaty of cession. The 
 fact that resistance on the part of the natives to the control of 
 the United States continued to be made, was held to be without 
 weight. 11 
 
 9181 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. 
 
 10183 U. S. 176; 22 Sup. Ct. Rep. 59; 46 L. ed. 138. 
 
 11 " The Philippines, like Porto Rico, became, by virtue of the treaty, ceded 
 conquered territory, or territory ceded by way of indemnity. The territory 
 ceased to be situated as Castine was when occupied by the British forces in 
 the war of 1812, or as Tampico was when occupied by the troops of the 
 United States during the Mexican war, ' cases of temporary possession of 
 territory by lawful and regular governments at war with the country of which 
 the territory so possessed was a part.' Thorington v. Smith, 8 Wall. 1 ; 19 
 L. ed. 361. The Philippines were not simply occupied, but acquired, and 
 having been granted and delivered to the United States, by their former 
 master, were no longer under the sovereignty of any foreign nation. . 
 The sovereignty of Spain over the Philippines and possession under claim of
 
 THE ANNEXATION OF TEKRITOBY BY TREATY. 403 
 
 172. Duties of President Prior to Congressional Action. 
 
 The absolute power of Congress to determine the political or 
 governmental rights in annexed territories constitutionally at- 
 taches from the moment that they become subject to the sover- 
 eignty of the United States. Until Congress exercises this right, 
 however, and provides them with governments and laws, they 
 remain under the control of the federal executive. This duty 
 devolves upon the President as a result from, his general obliga- 
 tion to see that the authority and peace of the United States are 
 everywhere maintained throughout its territorial limits. Thus, 
 after the treaty of peace with Spain in 1899, Porto Rico remained 
 under the control of the President until by the act of April 12, 
 1900, known as the " Foraker Act," Congress provided a govern- 
 ment for that island. So also it was by an exercise of the same 
 authority that the President, after the same treaty of cession, 
 appointed commissions for the government of the Philippine 
 Islands. 
 
 011 March 2, 1901, Congress enacted 12 that "All military, civil, 
 and judicial powers necessary to govern the Philippine islands 
 . . . shall, until otherwise provided by Congtess, be vested, in 
 such person or persons and shall be exercised in such manner as 
 the President of the United States shall direct for the establish- 
 ment of civil government and for the maintaining and protecting 
 the inhabitants of said islands in the free enjoyment of their 
 
 title had existed for a long series of years prior to the war with the United 
 Stutes. The fact that there were insurrections against her, or that uncivilized 
 tribes may have defied her will, did not affect the validity of her title. She 
 granted the islands to the United States, and the grantee in accepting them 
 took nothing less than the whole grant. If those in insurrection against 
 Spain continued in insurrection against the United States, the legal title and 
 possession of the latter remained unaffected. \Ye do not understand that it is 
 claimed that in carrying on the pending hostilities the government is seeking 
 to subjugate the people of a foreign country, but on the contrary, that it is 
 preserving order and suppressing insurrection in the territory of the United 
 States. It follows that the possession of the United States is adequate pos- 
 session under legal title, and this cannot be asserted for one purpose and 
 denied for another. We dismiss the suggested distinction as untenable." 
 
 12 This was as an amendment to the act making appropriation for the sup- 
 port of the army for the fiscal year ending June 30, 1902.
 
 404 UNITED STATES COXSTTTUTIOXAL LAW. 
 
 liberty, property, and religion/' This act changed the basis of 
 the Philippine government from a presidential to a congressional 
 one, but did not change its form, the President being given by 
 Congress practically the same powers that before that time he 
 had exercised by virtue of his position as Chief Executive. 
 
 By the Act of July 1, 1902, entitled " an act temporarily to 
 provide for the administration of the affairs of civil government 
 in the Philippine Islands, and for other purposes," Congress not 
 only approved and ratified the previous acts of the Philippine 
 Commission, but went on to define the general lines of action 
 that body should take, especially with regard to the introduction 
 of local self-government as fast as circumstances should warrant. 
 
 The constitutional source of the power of the United States to 
 establish and maintain governments over territories not annexed 
 to itself but in the possession of its military forces is derived 
 both from the expressed power given it to declare and wage war, 
 and from the fact of its exclusive authority in all that relates 
 to international affairs, which fact, as we have seen, properly 
 implies the right, in the absence of express prohibitions, to exer- 
 cise all the power* possessed by sovereign States generally. 
 
 From this same source was derived the power of the United 
 States to administer Cuba, and to establish consular courts in 
 oriental countries. 13 
 
 13 See chapter XXXV.
 
 CHAPTER XXIX. 
 
 THE DISTINCTION BETWEEN INCORPORATED AND UNINCORPO- 
 RATED TERRITORIES. 
 
 173. Limitations Upon Powers of Congress. 
 
 The Constitution of the United States contains a number of 
 express limitations upon the federal legislative power. In addi- 
 tion to those contained in the first ten amendments relative to 
 freedom of religion, speech, and press, the quartering of troops, 
 the right of the people to assemble, to petition, to keep and bear 
 arms, to be secure against unreasonable searches and seizures, to 
 presentment or indictment by jury, to speedy trial, to juries in 
 civil suits, to immunity from excessive bail and fines and cruel 
 and unusual punishments, etc., it is elsewhere provided in the 
 Constitution that all duties, imposts, and excises shall be uniform 
 throughout the United States, that the writ of habeas corpus shall 
 not be suspended, except under certain specified circumstances, 
 that no bill of attainder or ex post facto law shall be passed, no 
 capitation or other direct tax laid except in proportion to popula- 
 tion, no duty laid upon goods exported from a State, no com- 
 mercial preferences given to the ports of one State over those of 
 another, no money drawn from the treasury but in consequence 
 of an appropriation made by law, no title of nobility .granted, etc. 
 The Thirteenth Amendment also declares that " neither slavery 
 nor involuntary servitude, except as punishment for crime whereof 
 the party shall have been duly convicted, shall exist within the 
 United States, or any place subject to their jurisdiction." 
 
 When legislating for the States or for their inhabitants these 
 limitations have of course to be observed. The question whether 
 the same is true when Congress is legislating for the territories 
 and their populations has now to.be examined. 
 
 In the preceding chapters we have learned the sources whence 
 is derived the power of Congress and of the President to govern 
 annexed Territories. We have learned that by mere military oc- 
 
 [405]
 
 406 UNITED STATES CONSTITUTIONAL LAW. 
 
 cupation a territory, though for the time being subject to the 
 de facto control of the President as Comniander-in-Chief of the 
 army and navy, is not annexed to the United States, that is, does 
 not become permanently subject de jure as well as de facto to its 
 sovereignty. Only by treaty, or by statute, or by joint ^resolution 
 of Congress, may this annexation be effected. 
 
 174. Possible Status of Territories after Annexation. 
 
 AViien thus annexed, however, a district may, according to the 
 recent " Insular Cases," find itself, or by subsequent statute be 
 placed, in any one of the following categories. 
 
 1. A State of the Union. 
 
 2. A " Territory " incorporated into the Union. This Terri- 
 tory may be either " unorganized," as for example is Alaska, or 
 Cl organized," examples of which are at present Xew Mexico, 
 Arizona and Hawaii. 
 
 3. A Territory appurtenant to, that is, subject to the sover- 
 eignty of the United States, but not " incorporated," constitu- 
 tionally speaking, into the Union of States and Territories for the 
 benefit and protection of whose inhabitants the Constitution was 
 adopted. 
 
 175. Unincorporated Territory. 
 
 Such " appurtenant," dependent or unincorporated territory is, 
 of course, from the international point of view a part of the 
 United States, 1 but is not, as we shall see, a part thereof in the 
 
 international use of the term United States is considered in the case 
 of De Geofroy v. Riggs (133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642), 
 in which the question involved was whether the terms of a treaty giv- 
 ing to citizens of France the right to inherit an interest in real estate in 
 " States of the Union," were applicable to the District of Columbia or only 
 to the States of the Union. The use of the phrase " States of the Union " 
 would upon its face indicate that only the States and not the extra-State 
 areas were concerned, yet the court held that the treaty was to be construed 
 as generally applicable. In its opinion the court said: "This article is not 
 happily drawn. It leaves in doubt what is meant by " States of the Union." 
 Ordinarily these terms would be held to apply to those political communities 
 exercising various attributes of sovereignty which compose the United States, 
 as distinguished from the organized municipalities known as Territories and
 
 INCORPORATED AND UNINCORPORATED TERRITORIES. 407 
 
 stricter constitutional sense in which the term is used in the Con- 
 stitution with reference to certain limitations which that instru- 
 ment lays upon the legislative powers of Congress. 
 
 176. Distinction between Incorporated and Unincorporated 
 Territories. 
 
 With respect to the form of government that may be established 
 and maintained by Congress over the Territories, there is no dis- 
 tinction between an incorporated and an unincorporated Terri- 
 tory. In either case the congressional authority is absolute. With 
 respect, however, to the civil or private rights of the inhabitants 
 of the Territories, the distinction is very important. For if it be 
 that a Territory is merely appurtenant to, but not " incorporated " 
 into the United States, Congress in its legislation regarding it is 
 hound by but few of the limitations which apply in the case of 
 incorporated Territories, whether organized or unorganized. 
 
 This distinction between incorporated and unincorporated terri- 
 tory is one that was not clearly made until the decision of the 
 
 the District of Columbia. And yet separate communities, with an independent 
 local government, are often described as States, though the extent of their 
 political sovereignty be limited by relations to a more general government or 
 to other countries. (Halleck on Int. Law, chap. Ill, 5, 6, 7.) The term 
 is used in general jurisprudence and by writers on public law as denoting 
 organized political societies with an established government. Within this 
 definition the District of Columbia, under the government of the United 
 States, is as much a State as any of those political communities which com- 
 pose the United States. Were there no other territory under the government 
 of the United States, it would not be questioned that the District of Columbia 
 would be a State within the meaning of .international law; and it is not 
 perceived that it is any less a State within that meaning because other States 
 and other territory are also under the same government." 
 
 After referring to the case of De Geofroy v. Riggs, Justice Brown in the 
 individual opinion which he rendered in Downes v. Bidwell (182 U. S. 244; 
 21 Sup. Ct. Rep. 770; 45 L. ed. 1088), observes: "In dealing with foreign 
 sovereignties, the term ' United States ' has a broader meaning than when 
 used in the Constitution, and includes all territories subject to the jurisdic- 
 tion of the Federal Government, wherever located. In its treaties and con- 
 ventions with foreign nations, this government is a unit. This is so, not 
 because the Territories comprise a part of the government established by the 
 people of the States in their Constitution, but because the Federal Govern- 
 ment is the only authorized organ of the Territories, as well as of the 
 States in their foreign relations."
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 Insular Cases in 1901. Indeed, prior to that time, there had 
 been a number of decisions by the Supreme Court which indicated 
 that such a distinction did not, and could not, exist according to the 
 Constitutional Law of the L'nited States. There were, however, on 
 the other hand, not a few legislative and administrative precedents 
 which supported such a doctrine; and by rigorously confining 
 the contrary decisions of the Supreme Court to the facts of the 
 cases in which they were rendered, it was found possible to escape 
 from their control, and to hold that the term " United States," 
 as used in at least some of the clauses of the Constitution, does 
 not, and was not intended to, include all districts snbject to the 
 sovereignty of the United States; and that as to such areas not 
 within the limits of the " United States," in this strict constitu- 
 tional sense, Congress, in the exercise of its legislative powers, 
 is not subject to the limitations which rest upon it when dealing 
 with Territories which are included in the United States. 
 
 A review of the decisions of the Supreme Court rendered 
 prior to the Insular Cases, shows that, from the first, the doc- 
 trine was held by the court that Congress when legislating upon 
 the civil rights of inhabitants of the Territories is governed by 
 all those express and implied limitations which rest upon it when 
 dealing with the same subjects within the States. 2 The only 
 departures from this doctrine, if departures they be, were: (1) 
 The remark thrown out by Justice Bradley in the Mormon Church 
 case 3 that " Doubtless Congress, in legislating for the Territories 
 would be subject to those fundamental limitations in favor of per- 
 sonal rights which are formulated in the Constitution and its 
 
 2 See Loughborough v. Blake, 5 Wh. 317; 5 L. eel. 98: Am. Ins. Co. v. 
 Canter, 1 Pet. 511; 7 L. ed. 242; Webster v. Reid, 11 How. 437; 13 L. ed. 
 761; Scott v. Sandiord, 19 How. 393; 15 L. ed. 691; Reynolds v. U. S.. 98 
 U. S. 145; 25 L. ed. 244; Nat. Bank v. Yankton, 101 U. S. 129; 25 L. ed. 
 1046; Murphy v. Ramsay, 114 U. S. 15; 5 Sup. Ct. Hop. 747; 29 L. ed. 47; 
 Callan v. Wilson, 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223; 
 Mormon Church v. U. S., 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 
 478; Am. Pub. Co. v. Fisher, 166 U. S. 464; 47 Sup. Ct. Rep. 618; 41 
 L. ed. 1079; Springville v. Thomas, 166 U. S. 707; 17 Sup. Ct. Rep. 717; 
 
 41 L. ed. 1172; Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. Rep. 620; 
 
 42 L. ed. 1081. 
 
 3 130 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478.
 
 INCORPORATED AND UNINCORPORATED TERRITORIES. 409 
 
 amendments; but these limitations would exist rather by infer- 
 ence and the general spirit .of the Constitution, from which Con- 
 yivss derives all its powers, than by any express and distinct 
 application of its provisions;" and (2) the quotation of this 
 observation by Justice Brewer in American Publishing Co. v. 
 r'i-Ler 4 and the statement that "whether the Seventh Amendment 
 of the Constitution of the United States . . . operates ex 
 proprio vigore to invalidate this territorial statute may be a mat- 
 ter of dispute/' 5 
 
 Opposed, however, to this great -weight of judicial opinion, 
 there had been from the beginning, as has been said, a line of 
 administrative and legislative precedents which tended to show a 
 prevailing opinion that the Constitution with its limiting clauses 
 does not immediately extend, ex propr-io vigore, over all annexed 
 territories, but over only such as have been expressly brought 
 within its sphere of application by being " incorporated " in the 
 Union. And, based upon the fact that this incorporation had 
 certainly taken place with reference to the Territories concerned 
 in the various Supreme Court decisions rendered prior to the 
 Insular Cases, an argument was furnished for holding them not 
 controlling in the Insular Cases which were concerned with dis- 
 tricts that had not been so incorporated. These legislative and 
 administrative precedents it does not fall within the province of 
 this treatise to review. It is sufficient to say that in not a few 
 Instances various of the constitutional limitations were not applied 
 in practice in the Territories, and that by specific legislative pro- 
 visions these limitations were, from time to time, extended over 
 the several Territories acquired by the United States, thus indi- 
 catjng on the part of Congress at least a doubt as to whether the 
 constitutional provisions extended ex proprio vigore over the 
 Territories. 
 
 Finally, it is to be observed, that, in the Constitution itself, 
 there occur expressions which furnish possible ground for holding 
 
 U66 U. S. 464; 17 Sup. Ct. Rep. 618; 41 L. ed. 1079. 
 
 i 5 The case of In re Ross (140 U. S. 453; 11 Sup. Ct. Rep. 897; 35 L ed. 
 581 ) , properly construed, did not indicate a departure from the rule.
 
 410 UNITED STATES CONSTITUTIONAL LAW. 
 
 that some at least of its limitations were not intended to operate 
 over all Territories that might come under the jurisdiction of, 
 but remain merely appurtenant to, the United States. Thus the 
 Thirteenth Amendment declares that slavery and involuntary 
 servitude shall not exist " within the United States, or any place 
 subject to their jurisdiction." Thus is plainly indicated the 
 possibility that there may be districts subject to but not within 
 the United States. And this point is emphasized when it is 
 remembered that this Amendment was drafted and adopted by 
 substantially the same men who drafted and adopted the Four- 
 teenth and Fifteenth Amendments in which this qualifying phrase 
 does not appear. Again, the Sixth Amendment provides that in 
 criminal trials the accused shall be tried by an impartial jury 
 " of the State and district wherein the crime shall have been 
 committed." 8 
 
 6 In United States v. Dawson (15 How. 467; 14 L. ed. 775), the opinion 
 declares: "But it will 'be seen from the words of this amendment that it 
 applies only to the case of offenses committed within the limits of a State. 
 . The language of the Amendment is too particular and specific to 
 leave any doubt about it." In Cook v. United States (138 U. S. 157; 11 Sup. 
 Ct. Kep. 268; 34 L. ed. 906), the court say: "That amendment has reference 
 only to offenses against the United States committed within a State" (citing 
 United States v. Dawson). Yet, as we have seen in Reynolds v. United States 
 (98 U. S. 145; 25 L. ed. 244), the court declared specifically that the Amend- 
 ment was applicable to the Territory of Utah.
 
 CHAPTER XXX. 
 
 THE INSULAR CASES. 
 177. Dowries v. Bidwell. 
 
 As a result of the Spanish-American War the United States 
 came into possession of territories over which, because of their 
 location, their economic and industrial status, and especially the 
 character of their populations, it was deemed expedient to give to 
 the Executive or to Congress the freest possible discretion with 
 reference not only to the manner in which they should be gov- 
 erned, but to the civil rights that should be granted their inhabi- 
 tants. The question whether in dealing with these new insular 
 possessions, Congress should be held subject to all those constitu- 
 tional limitations which apply when dealing with civil rights in 
 the States or in the then existing Territories, thus became a most 
 important one. 
 
 The form in which this question arose for judicial determina 
 tion was as to the constitutionality of that clause of the Foraker 
 Act establishing civil " congressional " government in Porto 
 Rico, which provided a scale of customs duties to be paid upon 
 goods brought into the ports of the United States from the 
 island. This necessarily involved an answer to the question 
 whether the provision of the Constitution that " all duties, im- 
 posts and excises shall be uniform throughout the United States " 
 applied ex proprio vigor e to Porto Rico, or whether, having never 
 been formally " incorporated " by Congress into the United 
 States either expressly or by implication, the island was not a 
 part of the " United States " within the meaning of the term 
 as used in the constitutional clause just quoted. 
 
 In Downes v. Bidwell 1 five of the nine justices of the Supreme 
 Court concurred in holding that, though by the treaty of cession 
 the island of Porto Rico came under the sovereignty of the United 
 States, and when viewed from the standpoint of all other nations 
 became a part of the United States, it did not, when looked at 
 
 1 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. 
 
 [411]
 
 412 UNITED STATES CONSTITUTIONAL LAW. 
 
 from the viewpoint of its own public law, become a part of the 
 " United States " as that term is used in the Constitution. 
 
 Four of these five justices were able to reach this conclusion: 
 First, by making a sharp distinction between " incorporated " 
 and " unincorporated^" Territories f'Second, by holding that the 
 treaty-making power though able to annex Territories to th'e 
 United States, that is, bring them under its sovereignty inter- 
 nationally speaking, is not competent to incorporate such areas in 
 the United States, but that for this purpose the express or implied 
 consent of Congress is necessary; and Third, that Congress in 
 legislating for unincorporated Territories is not subject to many 
 of the limitations which apply when it is legislating for the States 
 and incorporated Territories. 
 
 It will be observed that so far as the general limitations upon 
 the legislative powers of Congress are concerned, these four jus- 
 tices place the States and the incorporated Territories in the 
 same class. Only the unincorporated Territories are by them 
 excluded from the protection of such limitations as, for example, 
 that federal tax laws shall be uniform throughout the United 
 States. The fifth justice, Brown, who concurred with these four, 
 does not, as we shall see, make any distinction between incorpo- 
 rated and unincorporated Territories, but excludes them all from 
 the term " United States," and from the protection of all but the 
 most fundamental of the constitutional limitations upon the power 
 of Congress. The constitutional rights which these limitations 
 create, he asserts, do not belong to the citizens of any Territories 
 until by act of Congress they have been extended to them. Thus, 
 while the four justices divide the domains of the United States 
 into the three classes of States, Incorporated Territories, and 
 Unincorporated Territories; Justice Brown recognizes only two 
 categories, States and Territories. 
 
 The reasoning of the four justices was as follows: 2 At the 
 beginning very proper care is taken to point out that the ques- 
 
 2 These were the same justices who dissented from the judgment of the 
 court in De Lima v. Bi dwell that by the treaty of annexation Porto Rico at 
 once ceased to be " foreign territory " within the meaning of the federal tariif 
 laws.
 
 THE Txsn.AR CASES. 41" 
 
 tion is not as to whether the Constitution is to control in the 
 premises, but as to which of its provisions are applicable. " Every 
 function of the government being . . . derived from the Con- 
 stitution." says the opinion, " it follows that that instrument is 
 everywhere and at all times potential in so far as its provisions 
 are applicable. Hence it is that whenever a power is given by 
 the Constitution, and there is a limitation imposed on the author- 
 ity, such restriction operates upon and confines every action on 
 the subject within its constitutional limits. As Congress in 
 governing the Territories is subject to the Constitution, it results 
 that all the limitations of the Constitution which are applicable 
 to Congress in exercising this authority necessarily limit its 
 power on this subject, It follows, also, that every -pro vision of 
 the Constitution which is applicable to the Territories is also con- 
 trolling therein. ... In the case of the Territories, as in 
 every other instance, when a provision of the Constitution is 
 invoked, the question which arises is, not whether the Constitu- 
 tion i- operative, for that is self-evident, but whether the provi- 
 sion relied on is applicable. . . . And the determination of 
 what particular provision of the Constitution is applicable, gen- 
 erally -peaking, in all cases, involves an inquiry into the situation 
 of the territory and its relations to- the United States." 
 
 Some of the limitations created by the Constitution, the opinion 
 recognizes, are of such " general and fundamental character or 
 so abr-oluroly laid down" as to restrain Congress in whatever 
 capacity it may be acting whether as a general legislature for 
 all the regions and peoples subject to United States sovereignty, 
 or only as a local legislature for the Territories. "Albeit," the 
 opinion declare--. " as a general rule, the status of a particular 
 Territory has to be taken in view when the applicability of any 
 provision of the ( 'on-ritntion is questioned, it does not follow, 
 when the Constitution has absolutely withheld from the govern- 
 ment all power on a given subject, that such an inquiry is neces- 
 -arv. rndonbtedly there aro general prohibitions in the Con- 
 stitution in favor of the liberty and property of the citizen, which 
 arc riot mere regulations as to form and manner in which a con-
 
 414 UNITED STATES CONSTITUTIONAL LAW. 
 
 ceded power may be exercised, but which are absolute denials of 
 all authority under any circumstances or conditions to do par- 
 ticular acts. In the nature of things, limitations of this character 
 cannot under any circumstances be transcended, because of the 
 complete absence of power." The opinion does not attempt, how- 
 ever, to enumerate any of those absolute prohibitions of power, 
 though it does later describe them as those made " in favor of 
 human liberty." 
 
 With reference to the special point at issue, the opinion says: 
 " There is in reason, then, no room in this case to contend that 
 Congress can destroy the liberties of the people of Porto Rico by 
 exercising in their regard powers against freedom and justice 
 which the Constitution has absolutely denied. There can also 
 be no controversy as to the right of Congress to locally govern 
 the island of Porto Rico as its wisdom may decide, and in so 
 doing to accord only such degree of representative government 
 as may be determined on by that body. There can also be no con- 
 tention as to the authority of Congress to levy such local taxes 
 in Porto Rico as it may choose, even although the amount of the 
 local burden so levied be manifold more onerous than is the duty 
 with which this case is concerned. But as the duty in question 
 was not a local tax, since it was levied in the United States on 
 goods coming from Porto Rico, it follows that, if that island was 
 a part of the United States, the duty was repugnant to the Con- 
 stitution, since the authority to levy an impost duty conferred 
 by the Constitution on Congress does not, as I have conceded, 
 include the right to lay such a burden on goods coming from one 
 to another part of the United States. And, besides, if Porto 
 Rico was a part of the United States the exaction was repugnant 
 to the uniformity clause. The sole and only issue, then, is not 
 whether Congress has taxed Porto Rico without representation 
 for, whether the tax was local or national, it could have been 
 imposed although Porto Rico had no representative local govern- 
 ment and was not represented in Congress but is whether the 
 particular tax in question was levied in such form as to cause it 
 to be repugnant to the Constitution. This is to be resolved by
 
 THE INSULAR CASES. 415 
 
 answering the inquiry, Had Porto Rico, at the time of the pas- 
 sage of the act in question, been incorporated into and become 
 an integral part of the United States ? " 
 
 The opinion then examines: First, whether the United States 
 has the constitutional power to acquire territory and hold it as 
 appurtenant and dependent territory without " incorporating " it 
 in itself in a constitutional sense; and, Second, whether, if it has 
 the power, it has done so in the case of Porto Rico. 3 
 
 The power to acquire and hold territory in whatever constitu- 
 tional status it sees fit, is, says the opinion, an inherent power 
 possessed by all sovereign States (citing numerous international 
 law writers). This power is possessed by the United States. Its 
 power to acquire territory is conceded. But, the opinion con- 
 tinues : " To concede to the United States the right to acquire, 
 and to strip it of all power to protect the birthright of its citizens 
 and to provide for the well being of the acquired territory by such 
 enactments as may in view of its condition be essential, is, in 
 effect, to say that the United States is helpless in the family of 
 nations, and does not possess that authority which has at all times 
 been treated as an incident of the right to acquire." 
 
 The assertion that it is contrary to the spirit of the Constitu- 
 tion to hold territories without incorporating them as integral 
 parts of the United States this opinion declares to be based upon 
 political and not upon judicial considerations, there being no 
 particular provision of the Constitution upon the subject. " Con- 
 ceding," says the opinion, " that the conception upon which the 
 Constitution proceeds is that no territory, as a general rule, shall 
 be acquired unless the territory may reasonably be expected to be 
 worthy of statehood, the determination of when such blessing is 
 to be bestowed is entirely a political question, and the aid of the 
 judiciary cannot be invoked to usurp political discretion in order 
 to save the Constitution from imaginary or real dangers." * 
 
 3 The decision as to Porto Rico would of course conclude the status of the 
 other insular possessions obtained in 1809 from Spain. 
 
 * This would hardly seem to meet the point, which is not as to the power 
 to hold districts for an indefinite length of time in a territorial condition, but 
 as to the power to annex territory without "incorporating" it in the United 
 States.
 
 UNITED STATES COTS TIT UTIOXAL LAW. 
 
 Xot only, then, has the United States the power to acquire and 
 hold " appurtenant . " territory, but, the opinion continues, this is 
 the only status which may be given to annexed territory by the 
 treaty-making power. For incorporation the consent of Congress 
 is required. " It seems," the opinion continues, " impossible to 
 conceive that the treaty-making power by a mere cession can 
 incorporate an alien people into the United States without the 
 express or implied approval of Congress. And from this it must 
 follow that there can be no foundation for the assertion that, 
 where the treaty-making power has inserted conditions which 
 preclude incorporation until Congress has acted in respect thereto, 
 such conditions are void and incorporation results in spite thereof. 
 If the treaty-making power can absolutely, without the consent 
 of Congress, incorporate territory, -and if that power may not 
 insert conditions against incorporation, it must follow that the 
 treaty-making power is endowed by the Constitution with the 
 most unlimited right, susceptible of destroying every other pro- 
 vision of the Constitution ; that is, it may wreck our institutions. 
 If the proposition be true, then millions of inhabitants of alien 
 territory, if acquired by treaty, can, without the desire or consent 
 of the people of the United States, speaking through Congress, 
 be immediately and irrevocably incorporated into the United 
 States, and the whole structure of the government be overthrown. 
 While thus aggrandizing the treaty-making power on the one 
 hand, the construction at the same time minimizes it on the other, 
 in that it strips that authority of any right to acquire territory 
 upon any condition which would guard the people of the United 
 States from the evil of immediate incorporation. The treaty- 
 making power, then, under this contention, instead of having the 
 symmetrical functions which belong to it from its very nature, 
 becomes distorted, vested with the right to destroy upon the one 
 hand, and deprived of all power to protect the government on the 
 other. 
 
 Though declared to be a political question, the necessity of such a power 
 is argued at length by these justices.
 
 THE INSULAR CASES. 417 
 
 And, looked at from another point of view, the effect of the 
 principle asserted is equally antagonistic, not only to the express 
 provisions, but to the spirit of the Constitution in other respects. 
 Thus, if it be true that the treaty-making power has the authority 
 which is asserted, what becomes of that branch of Congress which 
 is peculiarly the representative of the people of the United States, 
 and what is left of the functions of that body under the Constitu- 
 tion ? For, although the House of Representatives might be un- 
 willing to agree to the incorporation of alien races, it would be 
 impotent to prevent its accomplishment, and the express pro- 
 visions conferring upon Congress the power to regulate commerce, 
 the right to raise revenue. bills for which, by the Constitution, 
 must originate in the House of Representatives, and the author- 
 ity to prescribe uniform naturalization laws, would be in effect set 
 at naught by the treaty-making power. And the consequent re- 
 sult incorporation would be beyond all future control of or 
 remedy by the American people, since, at once and without hope 
 of redress or power of change, incorporation by the treaty would 
 have been brought about. The inconsistency of the position is at 
 once manifest. The basis of the argument is that the treaty 
 must be considered to have incorporated, because acquisition .pre- 
 supposes the exercise of judgment as to fitness for immediate in- 
 corporation. But the deduction drawn is, although the judgment 
 exercised is against immediate incorporation and this result is 
 plainly expressed, the conditions are void because no judgment 
 against incorporation can be called into play." 
 
 As is later indicated, however, where the treaty of annexation 
 provides for incorporation, the consent of Congress to such in- 
 corporation may be implied from legislation that recognizes this 
 status as having been obtained. But where a treaty of cession 
 does not expressly provide for incorporation, and still more, where 
 it expressly provides against it, a more formal congressional 
 action would seem to be necessary. 
 
 The opinion then proceeds to maintain that at the time the 
 Constitution was adopted, the term " United States ' designated 
 a definite territory, namely, the thirteen original States and the 
 27
 
 418 UNITED STATES CONSTITUTIONAL LAW. 
 
 areas which they had ceded, o-r had agreed to cede, to the General 
 Government, and that the new government with prescribed powers 
 was established for the benefit of the citizens of this national ag- 
 gregate of State and Territories. " Thus it was, at the adoption 
 of the Constitution, the United States, as a geographical unit, and 
 as a governmental conception both in the international and 
 domestic sense, consisted not only of States, but also of Terri- 
 tories, all the native white inhabitants being endowed with citi- 
 zenship, protected by pledges of a common union, and, except as 
 to political advantages, all enjoying equal rights and freedom, and 
 safeguarded by substantial guarantees, all being under the obli- 
 gation to contribute their proportional share for the liquidation 
 of the debts and future expenses of the General Government." 
 
 In short, then, according to this doctrine, the Constitution, from 
 the beginning, extended ex proprio vigore, over the States and 
 the extra-State regions then subject to the sovereignty of the 
 United States. In all thait concerned the form of government 
 to be established over them, the inhabitants of these territorial, 
 extra-State districts, were subject to the discretionary control of 
 Congress, but in all else, in the private rights of person and prop- 
 erty, and the protection of all the limitations upon the federal 
 power, express or implied, they were on a plane of perfect equality 
 with the citizens of the States. 
 
 With reference, however, to territories acquired since 1789 the 
 doctrine of the opinion is, as has been said, that they do not by 
 annexation become ipso facto integral parts of the United States 
 in this constitutional sense until Congress has incorporated them 
 into the Union as such. 
 
 In support of this position the court cite legislative action to 
 this effect with reference to territory annexed since 1787 up to 
 the time of the treaty of 1898 with Spain. In each case, with 
 the exception of this last treaty, the treaty of cession had provided 
 that the territories ceded should be incorporated into the United 
 States, or, as in the treaty of 1867 for the purchase of Alaska, 
 that the civilized inhabitants should be " admitted to the enjoy-
 
 THE INSULAR CASES. 419 
 
 ment of all the rights, advantages and immunities of citizens of 
 the United States." 5 
 
 If, the opinion asks, the effect of annexation were immediately 
 to incorporate the territory annexed into the United States, 
 what was the need of these express treaty provisions ? 6 
 
 The opinion next goes on to show that the constitutional doubts 
 expressed by Jefferson at the time of the acquisition of Louisiana 
 were not as to its annexation, but as to its incorporation, as pro- 
 vided by the treaty, into the Union. By reference to various 
 legislative and administrative acts, the opinion shows the terri- 
 tories subsequently annexed to have been either formally incor- 
 
 6 The treaty for the cession of Louisiana to the United States provided that: 
 " The inhabitants of the ceded territory shall be incorporated into the Union 
 of the United States and admitted as soon as possible according to the prin- 
 ciples of the federal Constitution to the enjoyment of all the rights, advan- 
 tages, and immunities of the citizens of the United States." (8 U. S. Stat. at 
 L. 202.) 
 
 In the treaty with Spain whereby was confirmed the title of the United 
 States to the Floridas the United States agreed that: "The inhabitants of 
 the territories . . . shall be incorporated in the Union of the United 
 States as soon as it may be consistent with the principles of the federal Con- 
 stitution, and admitted to the enjoyment of all the privileges, rights, and 
 immunities of the citizens of the United States." (8 Stat. at L. 256.) 
 
 In the treaty with Mexico by which Mexico relinquished its rights to Upper 
 California and New Mexico the United States promised that: "The Mexicans 
 who, in the territories aforesaid, shall not preserve the character of citizens 
 of the Mexican Republic conformably with what is stipulated in the preceding 
 article, shall be incorporated in the Union of the United States and to be 
 admitted at the proper time (to be judged of by the Congress of the United 
 States) to the enjoyment of all the rights of citizens of the United States 
 according to the principles of the Constitution." (9 Stat. at L. 930.) 
 
 In the treaty with Russia for the annexation of Alaska the United States 
 agreed that: "The inhabitants of the ceded territory . . . shall be admitted 
 to the enjoyment of all the rights, advantages and immunities of citizens of 
 the United States/' (15 Stat. at L. 542.) 
 
 6 To the author's mind this is by no means conclusive argument; and for 
 two reasons. In the first place, provisions really unnecessary are often 
 iiiM-rted in legal documents from abundance of caution; and, in the second 
 place, foreign countries are not presumed to know the constitutional law of 
 foreign countries, and, therefore, the peculiar constitutional rights of the 
 inhabitants of an annexed territory. It is, therefore, a general practice for 
 countries, when handing over certain of their subjects to the political control 
 of a foreign power, to provide as far as possible for the future welfare of these 
 persons the control over whom is thus abandoned.
 
 420 UNITED STATES CONSTITUTIONAL LAW. 
 
 poratied or by necessary implication recognized by Congress as in- 
 corporated into* the United States. This being so, it is argued that 
 the variGTts earlier dida of the Supreme Court relative to the 
 oaiirytituri'OTTal limitations resting upon Congress when legislating 
 for the Territories are to be interpreted in that light and do not 
 ewer the ease of a Territory Avhich has not been incorporated into 
 tfee United States. 
 
 Stumrarng "up its doctrine upon this point, the justice reading 
 the opinion declares': " It is, then, as I think, indubitably set- 
 tled by the principle of the law of nations, by the nature of the 
 government created under the Constitution, by the express and 
 implied powers conferred upon that government by the Constitu- 
 tion, by the Diode in which those powers have been executed from 
 the beginning, and by an unbroken line of decisions of this court, 
 first ffmnoraioed by ]\Iarshall and followed and lucidly expounded 
 by TaneVjCthat the treaty-making power cannot incorporate terri- 
 tory into the United States without the express or implied assent 
 of Congress, that it may insert in a treaty conditions against im- 
 m-ediate incorporation, and that on the other hand, when it has 
 expressed in the treaty the conditions favorable to incorporation 
 they will, if the treaty be not repudiated by Congress, have the 
 icuree of the law of the land, and therefore by the fulfilment of 
 siren conditions canse incorporation to result. It must follow, 
 therefore, that where a treaty contains no conditions for incorpora- 
 tioxEL, ad, above all, where it not only has no such conditions, but 
 cxpressry provides to the contrary, that incorporation does not 
 arise until in the wisdom of Congress it is deemed that the ac- 
 quired Territory has reached that state where it is proper that it 
 should enter into and form a part of the American family." 
 
 Having established this doctrine, its application to Porto Rico 
 becomes a comparatively simple matter. The treaty with Spain 
 in no clause provided for incorporation, but, upon the contrary, 
 expressly provided that the civil rights and political status of the 
 native inhabitants of the territories should be determined by Con- 
 gress; aiid since annexation, Congress had carefully refrained 
 from any expression of legislative will from which incorporation 
 might be implied.
 
 THE INSULAR CASES. 421 
 
 The result of what has been said/' say the court, a rs that 
 \vhile in ail international sense Porto Rico was not a foreign 
 country, since it was subject to the sovereignty of and was owned 
 liy the United States, it was foreign to the U<nited States in a 
 domestic sense, because the island had not been incorporated into 
 the United States, but was merely appurtenant thereto as a posses- 
 sion. As a necessary consequence, the impost in question assessed 
 on merchandise coming from Porto Rico into the United States 
 after the cession was within the power of Congress, and that body 
 was not, moreover, as to such impost, controlled by the clause re- 
 quiring that imposts should be uniform throughout the United 
 States; in other words, the provision of the Constitution just 
 referred to was not applicable to Congress in legislating for Porto 
 Piico." 
 
 178. Position of Justice Brown. 
 
 In a separate opinion Justice Brown concurred in the resrrlt 
 r'-:iched by the four justices whose reasoning we have just been 
 considering, but reached this result by laying down a doctrine 
 that was agreed to by no other of the members of the court. In- 
 stead of holding that the term " United States," as used in the 
 Constitution with reference to certain of the limitations placed by 
 tliat instrument upon the powers of Congress, included the States 
 and those Territories which had been incorporated into the Union, 
 as held the four justices in whose judgment lie concurred, he 
 declared that, strictly speaking, the "United States" was to be 
 construed as referring only to the States, and not to any other 
 territory, whether incorporated or unincorporated. In fact Justice 
 Brown does not admit the existence of a distinction between in- 
 corporated and unincorporated Territories, holding that as to all 
 < xtra-State di>tricts the constitutional limitations upon the powers 
 of Congress apply only when, by congressional action, the Consti- 
 tution has been extended over them. 
 
 After calling attention to the fact that, as decided in the case 
 of De Lima v. Bidwell, by cession by treaty with a foreign power, 
 a territory, already in the actual possession of the United States,
 
 422 . UNITED STATES CONSTITUTIONAL LAW. 
 
 at once ceased to be foreign and became domestic territory, 
 Brown points out that the cases under consideration involve the 
 further and more important question whether upon their becom- 
 ing domestic territory the provisions of the federal Constitution 
 were extended of their own force ex proprio vigore over 
 them. The 'Constitution not itself directly giving an answer to 
 this, the solution he says will have to be found in the nature of the 
 government created by that instrument. According to this justice's 
 view, this instrument was created, if not by the States, at least 
 exclusively for the States, and not for the Territories or any other 
 extra-State lands that might belong to the United States. Thus, 
 to quote his own words, " It can nowhere be inferred that the 
 Territories were considered a part of the United States. The 
 Constitution was created by the people of the United States, as 
 a union of States; and even the provision relied upon here, that 
 all duties, imposts, and excises should be uniform ' throughout 
 the United States ' is explained by the subsequent provisions of 
 the Constitution, that ' no tax or duty shall be laid on articles 
 exported from any State/ and ' 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 
 to be obliged to enter, clear, or pay duties in another.' In short, 
 the Constitution deals with States, their people and their repre- 
 sentatives. The Thirteenth Amendment to the Constitution pro- 
 hibiting slavery and involuntary servitude ' within the United 
 States, or in any place subject to their jurisdiction ' is also signifi- 
 cant as showing that there may be places within the jurisdiction 
 of the United States that are not part of the Union. . . . Upon 
 the other hand, the Fourteenth Amendment, upon the subject of 
 citizenship, declares only that l 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 re- 
 side.' Here there is a limitation to persons born or naturalized 
 in the United States, which is not extended to persons born in any 
 place ' subject to their jurisdiction.' '
 
 THE INSULAR CASES. 423 
 
 To restate, then, the position of Justice Brown, it would appear 
 that, according to his view, the " United States " when looked at 
 from the domestic or constitutional viewpoint, includes inr the 
 Union only the individual States such as Virginia, New York, 
 Texas, etc. The Federal District, the Territories, and, in fact, 
 all areas not within the boundaries of some one of these States, 
 though under the national sovereignty are not a part of the Union. 
 Looked at, however, from the international standpoint, the term 
 " United States " has, as Justice Brown later observes, " a broader 
 meaning than when used in the Constitution, and includes all ter- 
 ritories subject to the jurisdiction of the Federal Government, 
 wherever located. In its treaties and conventions witlT foreign 
 nations this government is a unit. This is so, not because the 
 Territories comprise a part of the government established by the 
 people of the States in their Constitution, but because the Federal 
 Government is the, only authorized organ of the territories, as well 
 as of the States, in their foreign relations." T 
 
 Xot being considered a part of the political unit created and 
 organized by the federal Constitution, it would seem logically to 
 follow that the non-State areas, or rather their populations, would 
 not be entitled to any of the privileges or immunities defined in 
 that instrument. But Justice Brown does not draw this con- 
 clusion. Speaking of the limitations laid upon the powers of 
 Congress by the Constitution, he says : " There is a clear dis- 
 tinction between such prohibitions as go to the very root of the 
 power of Congress to act at all, irrespective of time and place, 
 and such as are operative only ' throughout the United States ' or 
 among the several States. Thus, when the Constitution declares 
 that ' no bill of attainder or ex post facto law shall be passed,' 
 and that 'no title of nobility, shall be granted by the United 
 States ' it goes to the competency of Congress to pass a bill of that 
 description. Perhaps the same remark may be applied to the 
 First Amendment that ' Congress shall make no law respecting an 
 establishment of religion, or prohibiting the free exercise thereof; 
 
 ~ Citing De Geofroy v. Riggs, 133 U. S. 258; 10 Sup. Ct Rep. 295; 33 L. ed. 
 642.
 
 42-i UNITED STATES CONSTITUTIONAL LAW. 
 
 or abridging the freedom of speech; or 'of tiie press; or the right 
 of the people to peacefully assemble and to petition the govern- 
 ment for a redness of grievances.' We do not wish, however, to 
 be understood as expressing an opinion how far the bill of rights 
 contained in the first eight Amendments is of general and how 
 far of local application. Upon the other hand, when the Consti- 
 tution declares that all duties shall be uniform ' throughout the 
 United States' it becomes necessary to inquire whether there be 
 any territory over which Congress has jurisdiction which, is not 
 a part of the * United States,' by which term we understand the 
 States whose people united to form the Constitution, and such as 
 have since been admitted to the Union upon an equality with 
 them." And later on he says : " We suggest, without intending 
 to decide, that there may be a distinction, between certain natural 
 rights enforced in the Constitution by prohibitions against inter- 
 ference with them, and what may be termed artificial or remedial 
 rights which are peculiar to our system of jurisprudence. Of the 
 former class are the rights to one's own religious opinions and to 
 a public expression of them, or, as sometimes said, to worship 
 God according to the dictates of one's own conscience; the right 
 to personal liberty and individual property, to freedom of speech 
 and of the press; to free access to courts of justice, to due process 
 of law, and to an equal protection of the laws ; to immunities from 
 unreasonable searches and seizures, as well as cruel and unusual 
 punishments; /and to such other immunities as axe indispensable 
 to a free government. Of the latter class are the rights to citizen- 
 ship, suffrage (Minor v. llappersett, 21 Wall. 162; 22 L. ed_ 
 G27), and to the particular methods of procedure pointed out in. 
 the Constitution, which are peculiar to Anglo-Saxon jurispru- 
 dence, and some of which have already been held by the States to 
 be unnecessary to the proper protection of individuals. 
 
 " Whatever may be finally decided by the American people as 
 to the status of these islands and their inhabitants, whether 
 they shall be introduced into the sisterhood of States or be per- 
 mitted to form independent governments it does not follow that 
 in the meantime, awaiting that decision, the people are in the
 
 THE Txsi LAK CASES. 425 
 
 matter of personal rights unprotected by tlie provisions of our 
 Constitution and subject to the merely arbitrary control of Con- 
 gn-ss. Even if regarded as aliens, they are entitled under the 
 principles of the Constitution, to be protected in. life, liberty, and 
 property. This has been frequently held by this court in respect 
 to the Chinese, even when aliens, not possessed of the political 
 rights of citizens of the United States [citing cases]. We do not 
 d( -ire, however, to anticipate the difficulties which would natur- 
 ally arise in this connection, but merely to disclaim any intention 
 to hold that the inhabitants of these territories are subject to an 
 unrestrained power on the part of Congress to deal with them 
 upon the theory that they have no rights which it is bound to 
 respect." 
 
 According, then, to Justice Brown, there are some provisions 
 of the Constitution that control Congress and their inhabitants 
 when legislating for such territories as are not within the States 
 and others that do not so apply. Those that do not, he says, may, 
 however, be made applicable by acts of Congress, and in part this 
 ha.-, already been done in the case of all but the recently-acquired 
 possessions. And, he implies that when the Constitution has been 
 once formally extended to Territories and their inhabitants, 
 neither Congress nor the territorial legislature can enact laws 
 inconsistent therewith. As to this last assertion it has been argued 
 that if an act of legislation is required to extend the Constitu- 
 tion over a territory, it goes there not as a Constitution but as 
 a statute, and an irrepealable statute is admitted by everyone to be 
 an impossibility every legislature necessarily possessing a 
 power to repeal equal to its power to enact This being so, if the 
 pr< iniscs of Justice Brown be accepted, the conclusion is drawn 
 that at the present time, every Territory of the Cnited State-;. 
 organized or unorganized, contiguous or non-contiguous, conti- 
 nental and insular, still remains, except possibly as to a few gen- 
 d*al rights, absolutely subject to the arbitrary will of Congress. 
 Arizona, Xcw Mexico, Oklahoma and even the District of Colum- 
 bia in this respect, it is argued, stand upon a footing exactly the- 
 same as that of Porto Rico or the Philippines.
 
 426 UNITED STATES CONSTITUTIONAL LAW. 
 
 It is not certain, however, that the premises of this argument 
 are sound. It would seem that there are some legislative acts 
 which produce results which cannot be nullified by subsequent 
 action of the legislative body. Thus, to give a single example, new 
 States are admitted into the Union by enabling acts of Congress, 
 but Congress may not, by subsequent action, expel the States so 
 admitted from the Union. A similar conclusive effect might be 
 given to acts extending the Constitution over the territories. 
 
 In support of his position Justice Brown cites numerous 
 instances in the history of the United States in which acts of 
 Congress have been limited in their application to the States, or, 
 where their application to the Territories has been desired, express 
 provision to that effect has been made. The decisions of the 
 Supreme Court, however, upon the question whether the limita- 
 tions of the Constitution extend ex proprio vigore over the Terri- 
 tories, he ^admits to have been " not altogether harmonious." 
 Those which upon their face seem inconsistent with his position 
 he explains or attempts to explain away. Thus he avoids the 
 case of Loughbrough v. Blake 8 by saying that the District of 
 Columbia having once been a part of a State, it could not by 
 cession to the General Government be deprived of the constitu- 
 tional rights which it had once enjoyed. 9 
 
 85 Wh. 317; 5 L. ed. 98. 
 
 9 He says : " There could be no doubt as to the correctness of this con- 
 clusion, so far, at least, as it applied to the District of Columbia. This 
 District had been a part of the States of Maryland and Virginia. It had 
 been subject to the Constitution, and was a part of the United States. 
 The Constitution had attached to it irrevocably. There are steps which can 
 never be taken backward. The tie that bound the States of Maryland and 
 Virginia to the Constitution could not be dissolved, without at least the 
 consent of the federal and state governments to a formal separation. The 
 mere cession of the District of Columbia to the Federal Government relin- 
 quished the authority of the States, but it did not take it out of the 
 United States or from under the aegis of the Constitution. Neither party had 
 ever consented to that construction of the cession. If, before the District 
 was set off, Congress had passed an unconstitutional act affecting its in- 
 habitants, it would have been void. If done after the District was created, 
 it would have been equally void; in other words. Congress could not do 
 indirectly, by carving out the District, what it could not do directly. The 
 District still remained a part of the United States, protected by the Con-
 
 THE INSULAR CASES. 427 
 
 Other cases lie explains away by maintaining that prior to the 
 accruing of the causes of action litigated in them, the Constitution 
 had been extended by act of Congress over the Territories con- 
 cerned. 
 
 The very radical position taken by Justice Brown in the Insular 
 Cases has been stated at some length because of the prominence 
 that has been given it in the public discussions of the judgments 
 rendered in the Insular Cases. As a matter of fact, however, as 
 we have already learned, this position was not concurred in by 
 any one of the other eight justices, and it thus stands not only 
 unsupported by previous opinions of the court, but in flat contra- 
 diction to many of them. The " United States," as that term is 
 employed in the Constitution, the four, concurring justices said, 
 includes not simply the States, as Justice Brown had said, but 
 also such Territories as have been " incorporated " with them ; 
 and the Constitution itself, therefore, extends over them as well as 
 over the States not of course, however, in the sense that the 
 powers of Congress when legislating for the States and the incor- 
 porated Territories are the same, but that, so far as applicable, 
 the provisions of the Constitution are at once applicable to all 
 Territories subject to the sovereignty of the United States, and, 
 therefore, require no act of Congress for their extension, nor can 
 their application to such Territories be denied by Congress. 
 
 179. Argument of Dissenting Justices. 
 
 Four justices (Chief Justice Fuller, and Justices Harlan, 
 Brewer and Peckham) dissented from the judgment rendered in 
 Downes v. Bidwell. According to their view there is no constitu- 
 tional distinction to be drawn between Territories incorporated 
 in the United States and Territories unincorporated and merely 
 appurtenant to the United States. States and Territories, they 
 declare, are the only political units known to American Constitu- 
 tional Law, and when by a treaty of cession and actual occupa- 
 tion, lands and their inhabitants have come under the sovereignty 
 
 stitution. Indeed, it would have been a fanciful construction to hold that 
 territory which had once been a part of the United States ceased to be 
 such by being ceded directly to the Federal Government."
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 of the United States suck 1 anils are necessarily a part of the 
 United States, aiid no approving act of Congress is needed or is 
 efficient to increase the constitutional privileges to which they are 
 entitled and to make effective the legislative limitations upon the 
 powers of Congress. 
 
 After calling attention to the essential character of the General 
 Government as one of constitutionally limited powers, the opinion 
 declares: "The powers delegated by the people to their agents 
 are not enlarged by the expansion of the domain within which 
 they are exercised. "\Vhen the restriction on the exercise of a 
 particular power by a particular agent is ascertained, that is an 
 end of the question. To hold otherwise is to overthrow the basis 
 of our constitutional law and moreover, in effect, to reassert the 
 proposition that the States, and not the people, created the gov- 
 ernment." 
 
 \Yith reference to the competence of the treaty-making power 
 to " incorporate " territory in the United States, the dissenting 
 justices urge that the right of annexation being admitted and the 
 Constitution not providing for, or recognizing as possible, terri- 
 tory appurtenant to but not incorporated into the United States, 
 it follows that when territory is annexed by treaty, such territory 
 becomes an integral part of the United States any provisions in 
 the treaty to the contrary notwithstanding. Upon this point, 
 having referred to the clause of the treaty of 1898 with Spain 
 to the effect that " The civil rights and political status of the 
 native inhabitants of the territories hereby ceded to the United 
 States shall be determined by Congress," the opinion reads: 
 " This was nothing more than a declaration of the accepted prin- 
 ciples of international ]aw applicable to the status of the Spanish 
 subjects and of the native inhabitants. It did not assume that 
 Congress could deprive the inhabitants of ceded territory of rights 
 to which they might be entitled. The grant by Spain could not 
 enlarge the powers of Congress, nor did it purport to secure from 
 the United States a guaranty of civil or .political privileges. In- 
 \ deed, a treaty which undertook to take away what the Constitu- 
 tion secured, or to enlarge the federal jurisdiction, would be 
 
 
 .simply void."
 
 THE Ixsn.AK CASES. 
 
 In the separate opinion which he prepared, Justice Harlan was 
 especially emphatic in his repudiation both of the doctrine as- 
 serted by Justice Brown that the Constitution was created " by 
 the people of the United States, as a union of States, to be gov- 
 erned solely by representatives of the States," and of the theory 
 of the other four justices as to the status of " unincorporated " 
 Territories. 10 
 
 180. Summary and Criticism of Dowries v. Bidwell. 
 
 In order fully to appreciate the radical character of the doctrine 
 held by the four justices who concurred with Justice Brown in 
 the judgment in the Downes case, it is necessary clearly to appre- 
 ciate that, it was held, in effect, that this so-called incorporation 
 of a Territory by Congress in the United States is not an act, the 
 commission of which is determined by facts, but only by the 
 formal declaration of an intention, express or implied, by Con- 
 gress. So long as this intention is not declared, a territory is 
 declared to remain unincorporated in the United States notwith- 
 standing the fact that, as was the case in Porto Rico, a complete 
 territorial government may have been created, federal courts 
 established, with the right of appeal therefrom to the United 
 States Supreme Court, and all the local officials required to take 
 an oath to support the Constitution of a Union of which they were 
 
 fl>" In view of the adjudications of this court," he declares, " I cannot assent 
 to the proposition, whether it be announced in express words or by implica- 
 tion, that the National Government is a government of or by the States 
 in union, and that the prohibitions and limitations .of the Constitution are 
 addressed only to the States. That is but another form of saying that, like 
 the government created by the Artii-le< of Confederation, the present govern- 
 ment is a mere league of States, held together by a compact between them- 
 selves; whereas, as this court has often declared, it is a government created 
 by the people of the United States, with enumerated powers, and supreme 
 over States and individuals with respect to certain objects, throughout the 
 entire territory over which its jurisdiction extends. If the National Govern- 
 ment is jn any sense a compact, it is a compact between the people of the 
 United States among themselves a constituting in the aggregate the political 
 community by whom the National Government was established. The Constitu- 
 tion speak <. ii'.-t simply to the States in their organized capacities, but to 
 all peoples, whether of States or Territories, who are subject to the authority 
 of the United States."
 
 430 UNITED STATES CONSTITUTIONAL LAW. 
 
 not a part. Especially difficult to accept is the declaration that 
 the treaty-making power of the National Government is by itself 
 incompetent to add territory to the United States in a domestic, 
 constitutional sense. The authority of treaty-making power to 
 annex territory is conceded ; the Constitution itself places treaties 
 upon a plane of equality with the statutes of Congress; and the 
 Supreme Court has repeatedly affirmed that a subsequent treaty 
 operates as a repeal of all acts of Congress inconsistent with it; 
 wherefore it would seem irresistible to follow that when the treaty- 
 making power has accepted an unconditional cession of territory 
 to the United States, that act is as absolutely valid and as fully 
 operative as though Congress itself had legislated upon the sub- 
 ject. To assert the contrary is, in effect, to say that the treaty- 
 making and the law-making powers are not coordinate in author- 
 ity, the express provision of the Constitution to the contrary 
 notwithstanding. 
 
 Another objection to the doctrine of the Downes case which it 
 seems absolutely impossible to overcome, is that, in reality, it does 
 not simply assert the right of Congress to legislate regarding 
 unincorporated territory without regard to some of the limitations 
 imposed by the Constitution, but declares that in the exercise of 
 this absolute power Congress may, in effect at least, disregard 
 those same restrictions with reference to the inhabitants of the 
 States of the Union. !N"o argument is needed to show that a tariff 
 law which affects articles taken from a State to an unincorporated 
 territory, or from the latter to the former, affects the inhabitants 
 of both, and cannot therefore be said to be simply a local law. 
 But if not limited in its effects to the unincorporated territory in 
 question, it would seem to be an act necessarily subject to the con- 
 stitutional limitations placed upon Congress when legislating for 
 the States. It is, therefore, impossible to escape the argument of 
 the dissenting justices in the Downes case when they say: " Con- 
 ceding that the power to tax for the purposes of territorial govern- 
 ment is implied from the pewer to govern territory, whether the 
 latter power is attributed to the power to acquire or the power to 
 make needful rules and regulations, these particular duties are
 
 THE IXSULAR CASES. 431 
 
 nevertheless not local in their nature, but are imposed as in the 
 exercise of national powers. The levy is clearly a regulation of 
 commerce, and a regulation affecting the States and their people 
 as well as this Territory and its people. ... In any point of 
 view, the imposition of duties on commerce operates to regulate 
 commerce, and is not a matter of local legislation; and it follows 
 that the levy of these duties was in the exercise of the national 
 power to do so, and subject to the requirement of geographical 
 uniformity." 
 
 'Lastly, it may be said in objection to the doctrines declared in 
 the Downes case, that in attempting to give to Congress a right to 
 legislate for certain -Territories under United States sovereignty, 
 free from, certain limitations placed by the Constitution upon its 
 powers, there is seriously weakened, if not, from a strictly logical 
 standpoint, absolutely destroyed, that most fundamental principle 
 of our constitutional jurisprudence according to which all the 
 provisions of the Constitution are equally binding upon Congress. 
 The distinction that is made between the absolute prohibitions of 
 legislative power and the limitations imposed by the Constitution 
 upon the exercise of the powers that are granted, is clearly not 
 calculated to support the conclusion that Congress under certain 
 circumstances may disregard the latter when it may not the 
 former. As Chief Justice Fuller declared in his dissenting opin- 
 ion : " It is idle to discuss the distinction between a total want 
 of power and a defective exercise of it;" and again, " The powers 
 delegated by the people to their agents are not enlarged by the 
 ansion of the domain within which they are exercised. When 
 the restriction on the exercise of a particular power by a particu- 
 lar agent is ascertained, that is an end to the question. To hold 
 otherwise is to overthrow the basis of our constitutional law." 
 Mr. Carlisle in the address from which we have already once 
 quoted, has also shown so clearly the fallacy of the argument of 
 the prevailing opinion upon this point we may quote his words. 
 He says : " The distinction attempted to be taken between the 
 obligatory force of absolute prohibitions upon the power of Con- 
 gress and the obligatory force of limitations and qualifications im-
 
 432 UNITED STATES CONSTITUTIONAL LAW. 
 
 posed by the Constitution upon the exercise of its powers over a 
 particular subject, cannot, in my opinion, be sustained by any 
 sound process of reasoning. It is true that there is a difference 
 in degree between an absolute denial of all power to do a par- 
 ticular thing and a grant of power to do that thing to a limited 
 extent, or in a prescribed manner only; but the absolute prohibi- 
 tion and the express or implied limitation are * equally obligatory 
 upon Congress. It is bound to obey both or its act is void. . . . 
 To say that Congress, in legislating for a Territory, is not bound 
 by the constitutional limitations upon a granted power, but is or 
 may be bound by the express prohibitions, is simply to assert that 
 all parts of the Constitution are not of equal force and effect as 
 restraints upon legislation, and that a power not granted may be 
 constitutionally exercised if it is not expressly prohibited, a 
 theory, which, if sanctioned by the judiciary, would at once revo- 
 lutionize the government. It would 110 longer be a government of 
 enumerated and delegated powers, but would .possess the whole 
 mass of sovereign power which is now vested in the people, sub- 
 ject only to the comparatively few express prohibitions." 
 
 It will have been seen that the net result of the decision in 
 Bownes v, Bi dwell, whether we follow the reasoning of Justice 
 Brown, or of the four justices who concurred in the judgment 
 rendered, is that as to Territories which have not been incorpo- 
 rated into the United States (or, according to Justice Brown, over 
 which the Constitution has not been extended by act of Congress) 
 Congress is not limited by some of the restrictions enumerated 
 or implied in the Constitution. Just which of these limitations 
 do not, in such cases, control Congress, it remains for the Supreme 
 Court to determine in each particular case as the point arises. 
 
 In Downes v. Bidwell it was held that the restriction that " all 
 duties, excises, and imposts shall be uniform throughout the 
 United States " does not apply. 
 
 181. Status of Hawaii: Hawaii v. Mankichi. 
 
 In Hawaii v. Mankichi 1 ' 1 it was held that the provisions of the 
 Fifth and Sixth Amendments with reference to indictment by a 
 
 " 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016.
 
 THE IXKFLAB CASES. 433 
 
 grand jury and trial by petit jury, also did not apply. The facts 
 and questions of law involved in this case were these. The Joint 
 lit- .lution of Congress of July 7, 1898, had provided for the 
 annexation of the Hawaiian Islands " as a part of the territory 
 of the United States, and -subject to the sovereign dominion 
 thereof.'' The Resolution, indeed, expressly declared that " The 
 municipal legislation of the Hawaiian- Islands . . . not incon- 
 sistent with this Joint Resolution, nor contrary to the 'Constitu- 
 tion of the United States, nor to any existing treaty of the United 
 States, shall remain in force until the Congress of the United 
 f-s shall otherwise determine." After the annexation to the 
 United States, Congress not having determined otherwise, the 
 defendant in error, Mankichi, was tried for and convicted of 
 manslaughter according to the usual course of procedure in force 
 in the Republic of Hawaii prior to Jury 7, 1898, which course of 
 procedure did not require the indictment to be found by a grand 
 jury, and which permitted a less number than the entire twelve 
 of the petit jury to convict. An application for a writ of habeas 
 corpus having been made by Mankichi upon the ground that, 
 according to the Constitution of the United States, no one might 
 be tried for manslaughter except upon an indictment or present- 
 ment found by a grand jury, nor convicted except by a unanimous 
 petit jury, and the case having been appealed to the Supreme 
 Court of the United States, that tribunal was called upon to deter- 
 mine: first, whether it was the intention and the necessary effect 
 of the annexing Joint Resolution to make these constitutional 
 provisions immediately applicable 1o the islands; and secondly, 
 if it did not, whether it lay within the power of Congress or of 
 the authorities of Hawaii to deny to the accused the rights in 
 -ion. Both of these questions the majority of the court, five 
 justices, answered in the affirmative. 
 
 Here, however, as in Downes v. Bid well, the justices consti- 
 tuting the majority did not acrree in their reasoning. Justice 
 Brown, in his oj-inion. admitting that a literal interpretation of 
 the Resolution would support "Mankichi's claim, but arguing ab 
 inconvenient!, n-r-crt- that it could not have been the intention of 
 28
 
 434 UNITED STATES CONSTITUTIONAL LAW. 
 
 Congress " to interfere with the existing practice, when such 
 interference would result in imperilling the peace and good 
 order of the islands-" " Of course under the Xewlands 
 resolution," he continues, " any new legislation must con- 
 form to the Constitution of the United States; but how 
 far the exceptions to the existing municipal legislation were 
 intended to abolish existing laws must depend somewhat 
 upon circumstances. Where the immediate application of the 
 Constitution required no new legislation to take the place of 
 that which the Constitution abolished, it may be well held to have 
 taken immediate effect ; but where the application of a procedure 
 hitherto well known and acquiesced in left nothing to take its 
 place, without new legislation, the result might be so disastrous 
 that we might well say that it could not have been within the 
 contemplation of Congress. In all probability the contingency 
 which has actually arisen occurred to no one at the time. If it 
 had, and its consequences were foreseen, it is incredible that 
 Congress should not have provided against it. It is not intended 
 here to decide that the words ' nor contrary to the Constitution 
 of the United States ' are meaningless. Clearly they would be 
 operative upon any municipal legislation thereafter adopted, and 
 upon any proceedings thereafter had, when the application of the 
 Constitution would not result in the destruction of existing pro- 
 visions conducive to the peace and good order of the community. 
 Therefore we should answer without hesitation in the negative 
 the question put by counsel for the petitioner in their brief: 
 1 Would municipal statutes of Hawaii, allowing a conviction of 
 treason on circumstantial evidence, or on the testimony of one 
 witness, depriving a person of liberty by the will of the legis- 
 lature and without process or confiscating private property for 
 public use without compensation, remain in force after an annexa- 
 tion of the territory to the United States, which was conditioned 
 upon the extinction of all legislation contrary !o the Constitu- 
 tion ? ' We would even go farther, and say that most, if not all, 
 the privileges and immunities contained in the Bill of Rights 
 of the Constitution were intended to apply from the moment of
 
 THE INSULAR CASES. 435 
 
 annexation; but we place our decision of this case upon tlie 
 ground that the two rights alleged to be violated in this case are 
 not fundamental in their nature, but concern merely a method 
 of procedure which sixty years of practice had shown to be suited 
 to the conditions of the islands, and well calculated to conserve 
 the rights of their citizens to their lives, their property, and their 
 well being." 
 
 In a concurring opinion Justices White and McKenna base 
 their conclusion on the doctrine that by the annexing Resolution 
 Congress had not intended to incorporate the islands eo instanti 
 into the United States. With regard to the provision that the 
 municipal legislation of Hawaii not contrary to the Constitution 
 of the United States should remain in force, they say: " Xow, 
 in so far as the Constitution is concerned, the clause subjecting 
 the existing legislation which was provisionally continued to the 
 control of the Constitution, clearly referred only to the provi- 
 sions of the Constitution which were applicable, and not to those 
 which were inapplicable. In other words, having, by the resolu- 
 tion itself, created a condition of things absolutely incompatible 
 with immediate incorporation, Congress, mindful that the Con- 
 stitution was the supreme law, and that its applicable provisions 
 were operative at all times, everywhere, and upon every condi- 
 tion and persons, declared that nothing in the Joint Resolution 
 continuing the customs legislation and local law should be con- 
 sidered as perpetuating such laws, where they were inconsistent 
 with those fundamental provisions of the Constitution which 
 \vere, by their own force, applicable to the territory with which 
 Congress was dealing." 
 
 Chief Justice Fuller and Justices Brewer, Peckham, and Ilar- 
 lan dissented. The first three of these, after adverting to the 
 impropriety of an argument ab inconvenienti, content themselves 
 simply with the statement that, as a matter of fact, the provision 
 of the resolution of annexation which has been quoted above, vali- 
 dating all existing legislation, except such as might be contrary 
 to the Constitution of the United States, should be construed as 
 having extended over the islands the Fifth and Sixth Auiend-
 
 436 UNITED STATES CONSTITUTIONAL LAW. 
 
 merits to that instrument. Justice Uarlan, however, in his di-s- 
 sentirig opinion, in addition to this, attacks the validity of the 
 position assumed by the majority that it was within the consti- 
 tutional power of Congress to exclude .from operation in -a terri- 
 tory, incorporate or .not incorporate, any of the provisions of 
 the Constitution. 32 
 
 In effect, then, the prevailing doctrine of this Mankiehi case 
 ig to hold that the provisions of the Constitution guaranteeing 
 indictment and trial by jury are among those limitations which 
 do not control Congress in legislating ior unincorporated Terri- 
 tories, or, according to Justice J3rown, for such Territories as 
 have not had the Constitution extended over them by act of 
 Congress. 
 
 1-82. Right to Jury Held to be not Fundamental. 
 
 / "There can be no -doubt but that this decision of the court that 
 the right to trial by jury is not a fundamental right, but only 
 one of .practice and convenience, states a new principle in 
 American jurisprudence. Blackstoiie speaks of the right as " the 
 most transcendent privilege which any subject can enjoy or wish 
 for ;" Kent declares it " a fundamental doctrine ;" Story that it 
 is a " sacred and inviolate palladium " of liberty ; and decisions 
 of our courts without number .have employed similar language in 
 describing it. 13 
 
 A second especial fact to be noted regarding the position of 
 the four justices concurring with Brown in the judgment ren- 
 
 
 12 He says: "I dissent altogether from any such view. It assumes the 
 possession by Congress of power quite as omnipotent as that possessed by 
 the English Parliament. It assumes that Congress, which came into exist- 
 ence, and exists, only by virtue of the Constitution, can withhold funda- 
 mental guarantees of life and liberty from peoples who have come under 
 our complete jurisdiction; who, to use the words of the United States 
 minister, have become our fellow-countrymen ; and over whc.se country we have 
 acquired the authority to exercise sovereign dominion. In my judgment neither 
 the life nor "the liberty nor the property of any person, within any territory 
 or country over which the United States is sovereign, can be taken, under 
 the sanction of any civil tribunal acting under its authority, by any form of 
 procedure inconsistent with the Constitution cf the United State;." 
 
 is See article by J. W. Garner, entitled " The Right of Jury Trial in the 
 Dependencies/' in American Laic Hcrieic, XL, 1.
 
 THE Ix.sn.Ai: CASKS. 4.;] 7 
 
 dered is that they render most indefinite the criteria by which 
 it may be determined in any given case whether or not a Terri- 
 tory has, in fact, been " incorporated " into the United States. 
 In this case the Territory. in. question had not been, annexed, by 
 the treaty power as had the Territories involved in the Insular 
 Cases decided in 1901, but by an act of Congress- declaring it. " a 
 part of the Territory of the United States," and expressly making 
 the Constitution paramount to the local law. Also all tie ere- 
 cumstances preceding and attending the annexation. of the 
 islands indicated an intention to " incorporate " them into the 
 United States. The treaty which the annexing resolution, had 
 taken the place of had expressly provided that the islands " should 
 be incorporated into the United States as an integral part thereof 
 and under its sovereignty," and there is absolutely nothing to 
 show that when, the resolution for annexation was adopted,, a 
 different destiny was intended for them. 
 
 In Dorr v. United States, 34 decided in 1901, it was held that 
 trial by jury was not a necessary incident of due process of law 
 in the Philippine Islands. By the act of Congress of 1902 pro- 
 viding for the temporary government of the Philippines "various 
 individual rights were guaranteed, among them that no person 
 should be held for a criminal offense without due process of law 
 But the right to jury trial was not mentioned, and Seetioir 1&91 
 of the Revised. Statutes was expressly declared not to her ap- 
 plicable. 15 
 
 This decision was necessarily determined by the Powues v. 
 Bidwell, and United States v. Mankirhi cases; the former case 
 holding that unincorporated territories were not necessarily en- 
 titled to all the privileges created bv the Constitution; and the 
 latirr tli at the right to a jury trial is not a fundamental right. 
 
 Justice JTarlan again dissented upon the same grounds as tfiose 
 
 given by him in the Mankiehi case. 
 
 1 
 
 "195 U. S. 138; 24 Sup. ( t. Ke-p. sus : 49 L. ed. 128. 
 
 15 This is the section giving fore*- and effect t;i the Constitution ami lawa 
 of the United States not inapplicable within all the organized Territories and 
 every Territory thereafter organized as elsewhere in the United States,
 
 4t>3 UNITED STATES CONSTITUTIONAL LAW. 
 
 183. Alaska Incorporated: Rassmussen v. United States. 
 
 In Rassmussen v. United States, 16 decided in 1905, it was held 
 that Alaska had been incorporated into the United States, and, 
 therefore, that the inhabitants were entitled to jury trial. The 
 court did not, however, attempt to lay down any definite rule for 
 determining when incorporation has taken place, but contented 
 itself with quoting the following sentences from the opinion in 
 Dorr v. United States, and holding that the treaty by which 
 Alaska had been acquired, and the legislation of Congress subse- 
 quent thereto, did not bring that Territory within the category 
 of unincorporated Territories according to the test implied in the 
 sentences quoted. These quoted sentences were as follows : " If 
 the treaty-making power could incorporate territory into the 
 United States without congressional action, it is apparent that 
 the treaty with Spain, ceding the Philippines to the United 
 States, carefully refrained from so doing; for it is expressly pro- 
 vided that (article 9) ' the civil rights and political status of the 
 native inhabitants of the territories hereby ceded to the United 
 States shall be determined by the Congress.' In this language 
 it is clear that it was the intention of the framers of the treaty 
 to reserve to Congress, so far as it could be constitutionally done, 
 a free hand in dealing with these newly acquired possessions. 
 The legislation upon the subject shows that not only has Congress 
 hitherto refrained from incorporating the Philippines into the 
 United States, but in the act of 1902, providing for the tem- 
 porary civil government (32 Stat. at L. 691, Chap. 13"69), there 
 is express provision that Sec. 1891 of the "Revised Statutes of 1878 
 shall not apply to the Philippine Islands." 
 
 In this Rassmussen case the attempt had been made to maintain 
 the doctrine that, even if incorporated, Alaska was not entitled 
 to the right in question for the reason that it had not been made 
 an " organized " Territory. This contention, however, the court 
 held cleanly unsound. Incorporation, and not organization, it was 
 declared was the test as to the general applicability of the Con- 
 stitution. Justice Brown concurred, but, as might have been 
 
 197 U. S. 516; 25 Sup. Ct. Rep. 514; 49 L. ed. 862.
 
 THE INSULAR CASES. 439 
 
 expected from his position in Downes v. Bidwell, held that the 
 general applicability of the Constitution depended not upon the 
 fact of incorporation, but upon whether Congress had by some 
 expression of its will clearly shown that it intended that the par- 
 ticular provision of the Constitution should apply. 
 
 Justice Harlan in a concurring opinion- again* stated his 
 doctrine that the Constitution in all its provisions extends ex 
 proprio vigore over all Territories immediately upon annexation 
 to the United States. I cannot agree," he said, " that the 
 supremacy of the Constitution depends upon the will of Con- 
 gress." 
 
 184. Other Insular Cases. 
 
 In Binns v. United States 17 it was held with reference to license 
 fees imposed on certain kinds of luxuries, that, though Alaska 
 was an incorporated Territory and, therefore, within the scope 
 of the provision of the Constitution that excises shall be uniform 
 throughout the United States, the tax in question was valid as 
 an act passed by Congress acting as a local legislature, and not 
 as a general legislature exercising a power under the clause 18 
 empowering it to levy and collect taxes to pay the debts and 
 provide for the common defense and general welfare of the 
 United States. 
 
 In Kepner v. United States, 19 decided in 1904, it was held that 
 by an act of Congress of 19O2, the immunity from double jeop- 
 ardy for crime as .provided in the Constitution had been extended 
 to the Philippines. The point urged by the United States in this 
 case that the question as to what constitutes double jeopardy 
 should be settled according to the local Spanish civil law, will 
 be considered in another chapter of this work in which the Con- 
 stitutional provision regarding immunity from a second jeopardy 
 for the same criminal offense will be specially considered. 20 
 
 "194 U. S. 480; 24 Sup. Ct. Rep. 816; 48 L. ed. 1087. 
 is Art. 1, Sec. VIII, Cl. 1. 
 
 is 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114. 
 20 See section 423.
 
 440 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Goeize v. United States and Grossman v. United States- 21 
 the doctrine of De Lima v. Bidewell was followed with reference 
 to taxes levied on goods- imported into the United States from 
 Porto Kico after the taking effect of the Foraker Act establishing 
 civil government in that island. 
 
 o 
 
 In the so-called second Dooley case 22 it was held that the tax 
 collected under the Foraker Act on goods- imported into Porto 
 Eico from the United States was not a tax on goods exported 
 from a State and,, therefore,, forbidden by the Constitution. The 
 tax. in. question, it was held, was- in essential character rather 
 a local Porto Rican tax upon goods coming into that country, 
 than an export tax on goods leaving the United States. As 
 Justice Brown in his opinion said : " There can be no doubt 
 whatever that if the legislative assembly of Porto Rico should, 
 with the consent of Congress, lay a tax upon goods arriving from 
 ports of the ITnited States, such tax, if legally imposed, would be 
 a duty upon imports to Porto Rico, and not upon exports from 
 the L T nited States ; and we think the same result must follow if 
 the duty be laid by Congress in the interest and for the benefit 
 of Porto Rico. The truth is that, in imposing the duty as a tem- 
 porary expedient, with a proviso that it may be abolished by the 
 legislative assembly of Porto Rico, at its will, Congress thereby 
 shows that it is undertaking to legislate for the island for the 
 time being and only until the local government is put into opera- 
 tion. The mere fact that the duty passes through the hands of 
 the revenue officers of the L T nited States rs immaterial, in view 
 of the requirement that it shall not be covered into the general 
 fund of the Treasury, but be held as a separate fund for the 
 government and benefit of Porto Rico. . . . It is not intended 
 by this opinion to intimate that Congress may lay an export tax 
 upon merchandise carried from one State to another. While this 
 does not seem to be forbidden by the express words of the Con- 
 stitution, it would be extremely difficult, if not impossible, to lay 
 such a tax without a violation of the first paragraph of Art. 1, 
 
 21 182 U. S. 221 ; 21 Sup. Ct. Rep. 742 ; 45 L. ed. L06o. 
 22 Dooley v. United States, 183 TJ. S. 151; 22 Sup. Ct. Eep. 62; 43 L. ed. 
 128.
 
 PRIXCII'LKS OF COXSTITUTIOXAI, CONSTRUCTION. 441 
 
 See. <\ that ' all duties, imposts and excises shall be uniform 
 throughout the United States.' There is a wide difference 
 between the full and paramount power of Congress in legislating 
 for a Territory in the condition of Porto Rico and its power with 
 ect to States, which is merely incidental to it* rights- to regu- 
 late interstate commerce. The question, however, is not involved 
 in this cast 1 , and we do not desire to express an opinion upon it." 
 
 In the concurring opinion read, by Justice White, the decision 
 is placed upon the ground that the constitutional provision 
 applies only to goods exported to a country wholly k< foreign " to 
 the United States and not to a country appurtenant, as was Porto 
 Rico, to the United States. 
 
 Four justices dissented holding that the prohibition operates-, 
 and was intended to operate, as a general limitation on the power 
 to regulate commerce whether interstate or foreign. ''And this/' 
 the dissenting opinion, says, " is equally true in respect of com- 
 merce with the Territories, for the power to regulate commerce 
 includes the power to regulate not only as between foreign 
 countries and the Territories, but also by necessary implication 
 as between the States and Territories. Stotitenburgh v. Hennick 
 IJ't I". IS. l-il; 9 Sup. Ct. Rep. 256; 32 L. ed. 637." 
 
 " The proposition that because the proceeds of these duties 
 were to be used for the benefit of Porto Rico they might be 
 iv-arded as if laid by Porto Kico itself with the consent of Con- 
 -. and were therefore lawful, will not bear examination. Xo 
 money can be drawn from the Treasury except in consequence 
 of appropriations made by law. This act does not appropriate 
 a iixed sum for the benefit of Porto Rico, but provides that the 
 money collected from the citizens of the United States, shall be 
 placed in a separate fund or subsequently in the treasury of 
 Porto Rico, to be expended for the government and benefit thereof. 
 And although the destination of the proceeds in this way were 
 lawful, it would not convert duties on articles exported from 
 States into local taxes. States may, indeed, under the Constitu- 
 tion lay duties on foreign imports and exports for rhe use of the 
 Treasury of the United States, with the consent of Congress, but
 
 442 UNITED STATES CONSTITUTIONAL LAW. 
 
 they do not derive the power from the General Government. The 
 power pre-existed, and it is its exercise only that is subjected to 
 the discretion of Congress. Congress may lay local taxes in the 
 Territories, affecting persons and property therein, or authorize 
 territorial legislatures to do so, but it cannot lay tariff duties on 
 articles exported from one State to another, or from any State 
 to the Territories, or from any State to foreign countries, or 
 grant a power in that regard which it does not possess. But the 
 decision now made recognizes such powers in Congress, as will 
 enable it, under the guise of taxation, to exclude the products 
 of Porto Rico from the States as well as the products of the States 
 from Porto Rico; and this notwithstanding it was held in De 
 Lima v. Bidwell (182 U. S. 1; 21 Sup. Ct, Rep. 743; 45 L. ed. 
 1041) after the ratification of the treaty with Spain ceased to 
 be foreign and became domestic territory." 2S 
 
 In Lincoln v. United States, and Warner, Barnes & Co. v. 
 United States 24 it was held that the existence of an avowed insur- 
 rection of the natives in the Philippine Islands after the ratifi- 
 cation of the treaty of peace with Spain did not justify the exac- 
 tion under a military order of duties on imports from the United 
 States into Manila after that date. The Diamond Rings case 25 
 was held to govern. 
 
 That the Thirteenth Amendment forbidding slavery and invol- 
 untary servitude except as punishment for crime is of application 
 in the unincorporated as well as in the incorporated Territories, 
 is clear, its language expressly extending its force not only to the 
 United States but to " any place subject to their jurisdiction." 
 
 Certain forms of slavery do, however, undoubtedly exist in 
 some of the Philippine Islands, but there is of course no legality 
 in this, and as soon as is possible, the custom or practice will 
 be suppressed. 
 
 23 This case will be again considered in Chapter XLI in connection with the 
 discussion of the taxing powers of the United States. 
 
 24 197 U. S. 419; 25 Sup. Ct. Rep. 455; 49 L. ed. 816. 
 
 25 183 U. S. 176; 22 Sup. Ct. Rep. 59 ; 46 L. ed. 138.
 
 CHAPTER XXXI. 
 
 CITIZENSHIP IN THE TERRITORIES. 
 
 185. Effect of Cession of Territory on Citizenship of Inhabit- 
 ants. 
 
 Whether or not inhabitants of territories ceded by one nation 
 to another necessarily have, according to the principles of Inter- 
 national Law, the option of becoming citizens of the annexing 
 State, or retaining their old citizenship, is a point upon which 
 International Law writers do not seem to be fully agreed. 
 Rivier, for instance, in his recent work, " Principes du Droit des 
 Gens," declares that they have not that unless expressly pro- 
 vided otherwise, they become, nolens volens, the subjects of the 
 power to which their territory is united. Other text-book writers, 
 Westlake and Halleck, for instance, claim that the treaty of ces- 
 sion being silent upon this point, an option exists. 1 Halleck 
 declares : " The transfer of territory establishes its inhabitants 
 in such a .position toward the new sovereignty that they may 
 elect to become, or not to become, its subjects. Their obligations 
 to the former government are canceled, and they may, or may 
 not, become the subjects of the new government, according to 
 their own choice. If they remain in the territory after this trans- 
 fer, they are deemed to have elected to become its subjects, and 
 thus have consented to the transfer of their allegiance to the new 
 sovereignty. If they leave, sine animo revertendi, they are 
 deemed to have elected to continue aliens to the new sovereignty. 
 The status of the inhabitants of the conquered and transferred 
 territory is thus determined by their own acts. This rule is the 
 most just, reasonable, and convenient which could be adopted. 
 
 i This right of option as regards citizenship is not to be confounded with 
 the right, by some alleged to exist, of the inhabitants to decide whether 
 or not they will consent to a transfer of sovereignty over their territory 
 to another power. Such a right has never been accepted by International 
 Law writers, nor recognized by the United States in any of the annexations 
 by it of new territories. 
 
 [443]
 
 441 UNITED STATES CONSTITUTIONAL LAW. 
 
 It is reasonable on the part of the conqueror, who is entitled to 
 know who become his subjects and who prefer to continue aliens; 
 it is very convenient for those who wish to become the subjects 
 of the new State, and is not unjust toward those who determine 
 not to become its subjects. According to this rule, domicile, as 
 understood and defined in public law, determines the question of 
 transfer of allegiance, or rather, is the rule of evidence by which 
 that question is to be decided." 
 
 That, in, the absence of treaty stipulations to the contrary, the 
 citizenship of the inhabitants of ceded territory is to be deter- 
 mined by the rule thus stated, is generally admitted by American 
 International Law writers, and has been more than once declared 
 by the United States Supreme Court. In American Insurance 
 Co. v. Canter, the court say: " The same act which transferred 
 their territory transfers the allegiance of those who remain in 
 it ;" and in Boyd v. Thayer 2 it was declared that " the nationality 
 of the inhabitants of territory acquired by conquest or cession 
 becomes that of the government under whose dominion they pass, 
 subject to the right of election on their part to retain their former 
 nationality by removal or otherwise as may be provided." 
 
 186. Treaty Provisions. 
 
 In all the treaties entered into by the United States whereby 
 territory was acquired, prior to that with Spain in 1S98, it was 
 provided either that the inhabitants of the ceded territories re- 
 maining therein should be admitted as soon as possible to the 
 enjoyment of all the rights, advantages, and immunities of citi- 
 zens of the United States, or that they should be " incorporated 
 in the Union of the United States," or both. It cannot, however, 
 be said with certainty, as has been maintained by some, that it 
 was due to these provisions that the inhabitants of the ceded ter- 
 ritories were collectively naturalized, for this point has never been 
 squarely passed upon by the Supreme Court. The undoubted 
 purpose and the probable legal effect of these provisions was only 
 to create an obligation on the part of the United States not t> 
 
 2143 U. S. 135; 12 Sup. ft. Rep. 375; 3G L. ed. 103.
 
 CITIZENSHIP i.\ THK TMIKITOKIE. 44-5 
 
 <!!-< riminate civilly again-t these peoples, and, when the condi- 
 tions should warrant, to confer upon them full political privileges. 
 The determination when this time had arrived was left to the dis- 
 cretion of Congress. Provisions similar to those of which we have 
 been speaking are almost always inserted In- all nations in treaties 
 of cession at the instance of the ceding power, as a matter of 
 equity, it being but just that in handing over to the control of 
 another power citizens of its own that, as far as possible, a State 
 should obtain a guarantee that they should not be civilly or 
 politically oppressed. 
 
 J3y these treaties of cession entered into by the United States, 
 the inhabitants of the ceded territories did become, however, 
 United States citizens under the general rule quoted above, be- 
 cause those treaties contained no stipulations to the contrary. 
 
 In the treaty of peace with Spain which provided for the ces- 
 sion to the United States of Porto Rico, Guam, and the Philip- 
 pines we find for the first time appearing a provision expressly 
 affirming, that the cession of the islands i-s not to operate as 
 a naturalization of their native inhabitants, but that the deter- 
 mination of their civil rights and political status is to be left to 
 the subsequent judgment of Congress. Spanish subjects, natives 
 of the Iberian Peninsula, but resident in the islands, are, how- 
 ever, given the right to elect whether or not they will retain their 
 old citizenship or become American subjects. 3 
 
 3 The provisions of the treaty upon these points are as follows: "Spanish 
 subjects, natives of the peninsula [of Spain] residing in the territory over 
 which Spain by the present treaty relinquishes or cedes her sovereignty, 
 may remain in such territory or may remove therefrom, retaining in either 
 event all their rights of property, including the right to sell or dispose of 
 such property or of its proceeds; and they shall also have the right to carry 
 on their industry, commerce, and professions, being subject in respect thereof 
 to such laws as are applicable to other foreigners. In case they remain in 
 the territory fiey may pro-serve their allegiance to the Crown of Spain by 
 making before a court of record within a year from the date of exchange of 
 ratificatii us of tl.i- treaty, a declaration of their decision to preserve such 
 allegiance ; in default of wluch declaration they shall be held to have re- 
 nounced it and to have adopted the nationality of the territory in which they 
 may reside. 
 
 The civil ri^ht and political status of the native inhabitants of the terri- 
 tories hereby ceded to tlve United States shall be determined by Congress."
 
 446 UNITED STATES CONSTITUTIONAL LAW. 
 
 Relative to the effect of the treaty provision, that the civil or 
 political status of the native inhabitants of the ceded territories 
 are to be determined by Congress, a question presents itself, 
 which has not yet been passed upon by the Supreme Court 
 This is, whether it is within the constitutional competence of the 
 treaty-making power to confer upon Congress the right to de- 
 termine whether or not the inhabitants of territories coming under 
 the sovereignty of the United States shall become its citizens. 
 The Constitution declares that the acts of the treaty-making 
 power, as well as those of the federal legislature, shall be the su- 
 preme law of the land. The validity of both are, however, de- 
 pendent upon their consonance with the requirements of the 
 Constitution. If, then, according to that instrument, there may 
 not be the subjects of the United States who are not also its citi- 
 zens, no treaty can give to the law-making branch the power to 
 treat any persons as such. In the Insular Cases it was held that 
 the islands obtained from Spain have not been incorporated in 
 the " United States." Their inhabitants have not been naturalized 
 by statute, and the treaty with Spain expressly refuses to them 
 citizenship. The whole question of -their civil status thus depends 
 upon whether or not they are citizens according to the provision 
 of the Fourteenth Amendment, which declares that " all persons 
 born or naturalized in the United States, and subject to the juris- 
 diction thereof, are citizens of the United States and of the State 
 wherein they reside." That is to say it will depend upon whether 
 the term " United .States," as here employed, will be construed to 
 exclude or include " unincorporated " Territories. 
 
 As has been said, this question has not been passed upon in 
 limine, by the Supreme Court, but the positions taken in the 
 Insular Cases would indicate that inhabitants of these insular 
 possessions, though subject to the sovereignty of and owing alle- 
 giance to the United States, are not citizens within the strict 
 constitutional sense. Certainly by the executive and legislative 
 departments of the National Government the position has been 
 taken that they are not
 
 CITIZENSHIP IN THE TERRITORIES. 447 
 
 187. Statutory Provisions. 
 
 The citizens of Hawaii have been made citizens of the United 
 States by statute enacted April 30, 1900. 
 
 The act of June 14, 1902, 4 provides that no passport shall 
 be granted or issued to, or verified for, any other persons than 
 those owing allegiance, whether citizens or not, to the United 
 States. 
 
 Under this provision passports are now issued to citizens of 
 Porto Rico and of the Philippines. 
 
 The act of July 1, 1902, providing for the administration of 
 civil government in the Philippine Islands, declares that "All 
 inhabitants of the Philippine Islands continuing to reside therein, 
 who were Spanish subjects on the llth day of April, 1&99, and 
 then resided in said islands, and their children born subsequent 
 thereto, shall be deemed and held to be citizens of the Philip- 
 pine Islands, and as such entitled to the protection of the United 
 States, except such as shall have elected to preserve their allegiance 
 to the Crown of Spain in accordance with the provisions of the 
 treaty of peace between Spain and the United States, agreed at 
 Paris, December 10, 1898." 
 
 The act of April 12, 1900, 5 establishing a civil government for 
 Porto Rico, provides that: ''All inhabitants continuing to reside 
 therein who were Spanish subjects on the llth day of April, 1899, 
 and then resided in Porto Rico and their children born subsequent 
 thereto, shall be deemed and held to be citizens of Porto Rico, 
 and as such entitled to the protection of the United States, except 
 such as shall have elected to preserve their allegiance to the Crown 
 of Spain, on or before the llth day of April, 1900, in accordance 
 with the provisions of the treaty of peace entered into on the llth 
 day of April, 1899; and they together with such citizens of the 
 United States as may reside in Porto Rico, shall constitute a body 
 politic under the name of the People of Porto Rico, with guar- 
 anteed powers as hereafter confirmed, and with power to sue and 
 be sued as such." 
 
 * 32 Stat. at L. 386. 
 6 31 Stat. at L. 77.
 
 448 UNITED STATES CONSTITUTIONAL LAW. 
 
 Section 30 of the Naturalization Act of June 29, 1906, pro- 
 vides : " That all the applicable provisions of the naturalization 
 laws of the United States shall apply to and be held to authorize 
 the admission to citizenship of all persons not citizens who owe 
 permanent allegiance to the United States, and who may become 
 residents of any State or organized Territory of the United 
 States, with the following modifications : The Applicant shall not 
 be required to .renounce allegiance to any foreign sovereignty; 
 he shall make his declaration of intention to become a citizen of 
 the United States at least two years prior to his admission, and 
 residence within the jurisdiction of the United States, owing 
 such permanent allegiance, shall be regarded as residence within 
 the United States within the meaning of the five years' residence 
 clause of the existing .law." 
 
 188. Native Inhabitants of Porto Rico not Aliens: Gonzales v. 
 
 Williams. 
 
 In Gonzales v. Williams 6 it was held that a native of Porto 
 Rico who was an inhabitant of that island at the time of its cession 
 to the United States is not an " alien " within the meaning of 
 the act of Congress of March 3, 1891, providing for the detention 
 .and deportation of alien immigrants likely to become public 
 charges. No position is taken by the court, however, with refer- 
 ence to the question of citizenship. In its opinion the court say : 
 " We. are not required to discuss . . . the contention of 
 Gonzales' counsel that the cession of Porto Rico accomplished 
 the naturalization of its people; or that of the commissioner 
 Degetau, in his excellent argument as ainicus curiae, that a citi- 
 zen of Porto Rico, under the act of 1900, is necessarily a citizen 
 of the United States. The question is the narrow one w T hethcr 
 Gonzales was an alien within the meaning of that term as used 
 in the act of 1891. . . . AYe think it clear that the act re- 
 lates to foreigners as respects this country, to persons owing 
 allegiance to a foreign government, and citizens and subjects 
 thereof; and that citizens of Porto Rico, whose permanent alle- 
 giance is due to the United States; who live in the peace of the 
 
 6192 U. S. 1; 24 Sup. Ct. Rep. 171; 48 L. ed. 317.
 
 CITIZENSHIP ix THE TEEKITOEIES. 449 
 
 dominion of the United States; the organic law of whose domicil 
 was enacted l>v the United States, and is enforced through of- 
 
 / / c? 
 
 ficials sworn to support the Constitution of the United States, 
 are not ' aliens/ and upon their arrival by water at the ports of 
 our mainland are not ' alien immigrants,' within the intent and 
 meaning of the act of 1891." 
 29.
 
 CHAPTER XXXII. 
 
 FOREIGN RELATIONS: THE TREATY POWER. 
 In the discussion of the constitutional power of the United 
 States to extend its sovereignty over new territories and to govern 
 such territories when acquired, the fact has been adverted to and 
 relied upon, that the control of the relations of the United States 
 with foreign nations is exclusively vested in the General Govern- 
 ment. We have now to examine in detail the consequences which 
 flow from this fact, and to examine into the manner in which the 
 Constitution has provided that the federal powers thus vested are 
 to be exercised. 
 
 189. The Federal Power Exclusive. 
 
 The exclusiveness of the federal jurisdiction in all that con- 
 cerns foreign affairs is deducible both from the national character 
 of the General Government, and from the express provisions of 
 the Constitution. 
 
 The States are expressly forbidden to " enter into any treaty, 
 alliance, or confederation," " to grant letters of marque and re- 
 prisal," or, unless Congress consents, to " 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 im- 
 minent danger as will admit of no delay." 
 
 Upon the other hand, the General Government is expressly em- 
 powered " to provide for the common defence and general welfare 
 of the United States ;" " to regulate commerce with foreign na- 
 tions;" "to make treaties;" "to establish an 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 or water ;" " to raise and sup- 
 port armies;" " to provide and maintain a navy;" " to make rules 
 
 [450]
 
 FOBEIGX RELATIONS. 451 
 
 for the government and regulation of the land and naval forces ;" 
 " to provide for the calling forth the militia to ... repel 
 invasions;'' "to appoint ambassadors and other public ministers 
 and consuls;" to adjudicate causes arising under treaties, and 
 all cases affecting ambassadors, other .public ministers and 
 consuls, cases of admiralty and maritime jurisdiction, and cases 
 between a State, or the citizens thereof, and foreign States, citi- 
 zens and subjects. Finally, it is declared that: "This Con- 
 stitution, 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 su- 
 preme law of the land; and the judges in every State shall be 
 bound thereby, anything in the Constitution or the laws of any 
 State to the contrary notwithstanding." 
 
 From these express grants of power to the General Government, 
 and prohibitions of treaty powers to the States, the intention of 
 the framers of the Constitution to invest the Federal Government 
 with the exclusive control of foreign affairs is readily deducible. 
 
 190. The Federal Power All- Comprehensive. 
 
 The control of international relations vested in the General 
 Government is not only exclusive, but all-comprehensive. That 
 is to say, the authority of the United States in its dealings with 
 foreign powers includes not only those powers which the Constitu- 
 tion specifically grants it, but all those powers which sovereign 
 States in general possess with regard to matters of international 
 concern. This general authority in the United States is fairly 
 deducible from the fact that in its dealings with other States the 
 United States appear as the sole representative of the American 
 people ; that upon it rests, therefore, the obligation to perform all 
 the duties which International ^aw imposed upon a sovereign 
 State; and that, therefore, having these duties to perform it is to 
 be presumed to have commensurate powers. " That would appear 
 to l)e a most unreasonable construction of the Constitution," say 
 the court in the Legal Tender Cases, " which denies to the gov- 
 ernment created by it the right to employ freely every means, not
 
 452 UXITED STATES CONSTITUTIONAL LAW. 
 
 prohibited, necessary for its preservation, and for the fulfilment 
 of its acknowledged duties." The court then go on to declare: 
 "And here it is to 'be observed it is not indispensable to the exist- 
 ence of any power claimed for the Federal Government that it can 
 le 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. 
 Ard it is of importance to observe that Congress has often exer- 
 cised, without question, powers that are not expre?sly 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." 1 
 
 This doctrine thus asserted in the Legal Tender Cases has been 
 especially emphasized by the Supreme Court in passing upon the 
 constitutional power of the United States to exclude or expel 
 undesirable aliens. In the Chinese Exclusion Cases 2 the court 
 say : " While under our Constitution and form of government 
 the great mass of local matters is controlled by local authorities, 
 the L'nited 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 in- 
 voked for the maintenance of its absolute independence and secu- 
 rity throughout its entire territory. . . . The control of local 
 matters being left to local authorities, and national matters being 
 intrusted to the Government of the Union, the problem of free 
 institutions existing over a widely extended country, having dif- 
 ferent climates and varied interests, has been happily solved. For 
 local interests the several States of the Union exist, but for the 
 national purposes, embracing our relations with foreign nations, 
 we are but one people, one nation, one power." 
 
 i 12 Wall. 4o7; 20 L. ed. 2S7. 
 
 2130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068.
 
 4.53 
 
 And in Ekiu v. United States 3 the court declare: "It is an 
 accepted maxim of international law, that every sovereign nation 
 has the power, as inherent in sovereignty, and essential to self- 
 preservation, to forbid the entrance of foreigners within its 
 dominions, or to admit them only in such case and upon such con- 
 ditions as it may see fit to prescribe. Vattel, lib. 2, 9-t, 100; 1 
 Phillimore (3d. ed.), chap. 10, 220. In the United States this 
 power is vested in the national government, to which the Con- 
 stitution has committed the entire control of international re- 
 lations, in peace as well as in war." 
 
 Again in Fong Yue Ting v. United States, 4 the following 
 language is used : " The right to exclude or 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 inde- 
 pendence, and its welfare, the question now before the court is 
 whether the manner in which Congress has exercised thijj right in 
 sot-tiens G and 7 of the Act of 1892 is consistent with the Con- 
 >tiiution. The United States are a sovereign and independent 
 nation, and are vested by the Constitution with the entire control 
 of international relations, and with all the powers of government 
 necessary to maintain that control and make it effective. The 
 only government 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." 
 
 In an earlier chapter we have seen that the power of the United 
 States to annex territory is deducible not merely from such ex- 
 press grants of power, as to enter into treaties, to declare war, 
 etc., but from the national sovereignty of the United States in 
 its international relations. 
 
 The reasoning of the court in maintenance of the principle 
 that in all that concerns foreign relations the United States has 
 the same plenitude of constitutional power as that possessed by 
 
 3142 U. S. 651; 12 Sup. Ct. Rep 336; 35 L. ed. 1146. 
 4149 (. v f,'i> ; 1:5 Sup. Ct. Rep. 1016; 37 L. ed. 905.
 
 454 UNITED STATES CONSTITUTIONAL LAW. 
 
 other sovereign States is sound. This appeal, however, to the fact 
 of " national sovereignty " as a source of federal .power is not a 
 valid one outside of the international field. It cannot properly be 
 resorted to when recognition of an international obligation on the 
 part of the United States is not involved, and when, therefore, the 
 matter is purely one relating to the reserved powers of the States 
 or to the private rights -of the individuals. To permit the doc- 
 trine to apply within these fields would at once render the Federal 
 Government one of unlimited powers. 5 
 
 5 The Supreme Court has, however, upon several occasions employed lan- 
 guage which would imply the acceptance of the doctrine in this improper 
 manner, or, at least, has appealed to it in support of conclusions reached 
 upon other grounds. Thus in the Legal Tender Cases (12 Wall. 457; 20 
 L. ed. 287) Justice Bradley says: "The United States is not only a govern- 
 ment, but it is a national government, and the only government in this 
 country that has the character of nationality. It is vested with power over 
 all foreign relations of the country, war, peace, and negotiations and inter- 
 course with other nations; all which are forbidden to the state governments. 
 It has jurisdiction over all those general subjects of legislation and sovereignty 
 which affect the interests of the whole people equally and alike, and which 
 require uniformity of regulation and laws. . . . 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 conceded to belong to every govern- 
 ment as such, and as being essential to the exercise of its functions." 
 
 And in Juillard v. Greenman (110 U. S. 421; 4 Sup. Ct. Rep. 122; 28 
 L. ed. 204) the court derive additional support for its position upholding 
 the constitutionality of the Legal Tender laws, from the doctrine that sover- 
 eign nations generally have the power. The court, in its opinion, say: 
 " The power, as incident to the power of borrowing money and issuing bills 
 or notes of the Government for money borrowed, of impressing upon those 
 bills or notes the quality of being a legal tender for the payment of private 
 debts, was a power universally understood to belong to sovereignty, in 
 Europe and America, at the time of the framing and adoption of the Con- 
 stitution 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. . . . The exercise of this power not being 
 prohibited to Congress by the Constitution, it is included in the power ex- 
 pressly granted to borrow money on the credit of the United States, . . . 
 Congress as the legislature of a sovereign nation, being expressly empowered 
 by the Constitution to lay and collect taxes, etc. . . . and the power to 
 make the notes of the government a legal tender in the payment of private 
 <iebts being one of the powers belonging to sovereignty in other civilized
 
 FOKEIGX RKLATIOXS. 455 
 
 In summary, then, we may say that the United States Govern- 
 ment though one of complete powers in all that relates to its deal- 
 ings with foreign States, is, in all other respects, one of limited, 
 enumerated powers. 
 
 191. The Manner of Exercise of the Treaty-making Power. 
 
 The Constitution 6 provides that the President " shall have 
 power, by and with the advice and consent of the Senate, to make 
 treaties, provided two-thirds of the Senators present concur." 
 
 It was not until the closing days of the Constitutional Conven- 
 tion that the President was associated with the Senate in the 
 negotiation and ratification of treaties. Upon August 23d, how- 
 ever, Madison observed, " that the 'Senate represented the States 
 alone, and for this .as well as other obvious reasons it was proper 
 that the President should be made an agent in the treaties." 
 September -ith, the Committee to which undetermined sections of 
 the Constitution had been referred, reported back the treaty clause 
 in substantially the form in which it now appears. The only dis- 
 cussion which the clause then received was with reference to the 
 size of the majority that should be required in the Senate for 
 approval of treaties, and whether treaties of peace should not, by 
 way of exception, require only a simple majority vote. 
 
 The second clause of Article VI of the Constitution declares 
 that " This Constitution, and the laws of the United States 
 
 nations, and not expressly withheld from Congress by the Constitution; we 
 are irresistibly impelled to the conclusion that the impressing upon the 
 treasury notes of the United States the quality of being a legal tender in 
 the payment of private debts is an appropriate means, conducive and plainly 
 adapted to the execution of the undoubted powers of Congress." 
 
 In the foregoing it will be observed that the court find the legal tender 
 power implied in other powers expressly given by the Constitution to Congress, 
 but the validity of this implication it founds on the nature of sovereignty 
 as exemplified in the political world generally. 
 
 Again in United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 
 27 L. ed. 1015) with reference to its powers of eminent domain, the court 
 say: "The power to take private property for public uses, generally termed 
 the right of eminent domain, belongs to every independent government It is 
 an incident of sovereignty, and as said in Boom v. Patterson (98 U. S. 403; 
 25 L. ed. 206), requires no constitutional recognition." 
 
 6 Art. II, Sec. 2, Cl. 2.
 
 456 UNITED STATES CONSTITUTIONAL LAW. 
 
 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 and 
 laws of any State to the contrary notwithstanding." It had been 
 suggested in the Convention by Gouverueur ^Morris that no treaty 
 should be binding on the United States until ratified by a law, 
 but, the disadvantages of such a provision being pointed out, the 
 suggestion was voted own. A proposal was also made, but re- 
 jected because of the often necessity of secrecy, that the House 
 of Representatives should participate with the Senate in the rati- 
 fication of treaties. 
 
 That treaties duly ratified should bind the States, and be 
 beyond their power to change, was never questioned in the Conven- 
 tion, Until August 23d, it was agreed that the General Govern- 
 ment should have an express power to enforce by arms all treaties, 
 but this provision was then stricken out for the reason that treaties 
 being expressly declared to have the force of law, the federal 
 judicial power would have sufficient authority to determine when 
 they were infringed and to order their enforcement, 
 
 In the state ratifying conventions the fact that treaties were to 
 be superior to state constitutions and laws created not a little fear 
 of possible oppression. In Virginia Patrick Henry raised strong 
 objection to this, and in several States there was urged the neces- 
 sity of an amendment specifically declaring that no treaty should 
 operate to change the Constitution of a State, 
 
 192. The Negotiation of Treaties. 
 
 With respect to the manner in which treaty-making is, accord- 
 ing to the Constitution, to be conducted, the first question that 
 arises is as to the extent to which the Senate may properly par- 
 ticipate not only in the ratification, but in the preliminary negoti- 
 ation of international agreements. 
 
 In the same clause, indeed in the same sentence, of the Con- 
 stitution in which provision is made for entering into treaties, 
 it is provided that the President " shall nominate and bv and
 
 FOEEIGX RKLATIOXS. 4." 7 
 
 with the advice of the Senate shall appoint ambassadors, other 
 public ministers and consuls," etc. Here the phraseology shows 
 that the act of nominating the public officials mentioned, is 
 clearly distinguished from their appointment. They are to be 
 nominated by the President, but to be appointed by the Senate 
 and President. The negotiating of treaties is not, however, by the 
 phraseology of the treaty clause thus sharply distinguished from 
 their ratification as regards the federal organs by which this nego- 
 liation and ratification is to be performed. The language is that 
 the President " shall ha.ve power, by and with the advice and con- 
 sent of the Senate, to make treaties," not that " he shall negotiate, 
 and, with the consent of the Senate, ratify treaties." 
 
 As further indicative of an intended participation of the Senate, 
 in the negotiation of treaties is the fact, already adverted to, that 
 in the Convention, until almost the last moment, it was agreed 
 that the treaty-making power should be vested exclusively in the 
 Senate, a body the membership of which at that time it was 
 thought would remain comparatively small. 7 
 
 Actual practice exhibits frequent instances in which the Senate 
 has participated in the negotiation of treaties. 
 
 During the first years under the Constitution the relations be- 
 tween the President and the Senate were especially close. In 
 17>'. Pr<.'si.!cnt Washington notified the Senate that he would con- 
 fer with them with reference to a treaty with certain of the Indian 
 tribes, and, on the next day, and again two days later, went with 
 General Knox before that body for that purpose. Again, in 1790, 
 President Washington in a Avritten communication asked the ad- 
 vice of the Senate as to a new boundary treaty to be entered into 
 
 " It would appear that the original intention of the framers of the Consti- 
 tution was that the Senate should act more as an executive council than 
 as an upper legislative chamber. See Ford. Rise and (iroicth of American 
 1'ulitifs. " The law makes the Senate the adviser of the President in the mak- 
 ing of a treaty through all its stagrs not that it requires that, in every 
 instance, the President shall have the advice and consent of the Senate, 
 l>ut that, in every instance, the President has the right to have it, and 
 correspondingly, in every instance, the Senate has the right to enforce it. 
 It is a reciprocal right lor a common benefit." Senator A. 0. Bacon in the 
 \orth -liiierican Iff-vitic, April 19, 1DOG.
 
 458 UNITED STATES CONSTITUTIONAL LAW. 
 
 with the Cherokees. So also, in 1791, he asked the Senate to 
 advise him as to what answer to be made to the French Charge 
 des Affaires, with regard to a question of tonnage on foreign 
 vessels. 
 
 John Quincy Adams in his Memoirs* relates that Craw- 
 ford told him that Washington went to the Senate with a 
 draft of a treaty ; that " they debated it, and proposed alterations, 
 so that, when Washington left the Senate Chamber, he said he 
 would be damned if he ever went there again. And ever since 
 that time treaties have been negotiated by the Executive before 
 submitting them to the consideration of the Senate." 
 
 In fact, however, the Presidents did continue occasionally to 
 consult with the Senate in regard to the negotiation of treaties. 
 
 In 1794, when sending the name of John Jay as Envoy Ex- 
 traordinary to England, Washington explained to the Senate his 
 purpose in doing so ; and the same was done by President Adams 
 in 1797 when nominating the special commission to France. 9 
 
 193. Powers of the Senate. 
 
 After the first few years under the Constitution, however, the 
 practice on the part of the President of consulting the Senate with 
 regard to the treaties to be negotiated, became an infrequent one, 
 but yet not one wholly obsolete. Thus, in 1818, President Monroe 
 asked the Senate whether he alone as Executive was constitution- 
 ally competent to arrange with Great Britain as to naval arma- 
 ments upon the Great Lakes ; and, if not, that they would give him 
 advice as to the proper agreement with reference thereto, that 
 should be entered into. Again, in 1830, President Jackson asked 
 the advice of the Senate as to the terms of a treaty to be negoti- 
 ated with the Choctaw Indians. His message, however, bears 
 evidence to the fact that he is aware that he is departing from 
 the practice of years immediately .preceding, though not from 
 
 s VII, 427. 
 
 9 For other instances in which during the early days, as well as at 
 later times, the advice of the Senate has been asked by the President in 
 the negotiation of international agreements, see Crandall, Treaties: Their 
 Making and Enforcement, pp. 54 et seq. and an article in Rcribner's Magazine. 
 Jan., 1902, by Senator Henry Cabot Lodge, entitled "The Treaty-making 
 Power."
 
 FOREIGN RELATIONS. 459 
 
 that of the early period. He says : " I am aware that in thus 
 resorting to the early practice of the government, by asking the 
 previous advice of the Senate in the discharge of this portion of 
 my duties, I am departing from a long and for many years un- 
 broken usage in similar cases. But being satisfied that this resort 
 is consistent with the provisions of the Constitution, that it is 
 strongly recommended in this instance by considerations of ex- 
 pediency, and that the reasons which have led to the observance 
 of a different practice, though very cogent in negotiations with 
 foreign nations, do not apply with equal force to those made with 
 Indian tribes, I flatter myself that it will not meet with the dis- 
 approbation of the Senate." 10 
 
 In the article already referred to, Senator Lodge enumerates 
 a not inconsiderable number of instances down to comparatively 
 recent times in which the Senate has participated in the negotia-' 
 tion of treaties. 
 
 In a number of cases the Senate has by resolution suggested to 
 the President that certain negotiations be initiated. Thus in 
 1835 the Senate requested the President to open negotiations with 
 the Central American governments with a view to securing treaties 
 granting protection to such individuals as might undertake the 
 construction of an interoceanic canal. In 188S, President Cleve- 
 land was requested by the Senate to open negotiations with China 
 for the regulation of immigration of subjects of that country into 
 the United States. In 1880, by a concurrent resolution, the Sen- 
 ate and House of Representatives requested the Executive to seek 
 the co-operation of other Powers in providing for the amicable 
 settlement by arbitration of disputes which could be settled 
 
 10 " Secretary Webster, in the important negotiations which he conducted 
 for the adjustment of t!ie northeastern boundary kept the Senate advised of 
 the progress of the negotiations and it was mainly for that reason he 
 was able to carry the treaty by an overwhelming vote in the Senate which 
 wns politically hostile to the administration. Secretary Buchanan, before 
 signing the treaty adjusting the Oregon boundary, submitted the full text 
 to the Senate and received an informal note approving it. President Jackson 
 even consulted the Senate as to the propriety of refusing to accept the award 
 (under a treaty) of the King of the Netherlands, and procured a note of 
 Ixnly advising him as to the course to be pursued." (J. \V. Foster in 
 Yale Law Journal. XI, 71.)
 
 460 UNITED STATES CONSTITUTIONAL LAW. 
 
 through the ordinary diplomatic channels. By an act of Con- 
 gress, the President was, in 1902, advised and authorized to enter 
 into certain treaty arrangements with reference to the construc- 
 tion of an interoceanic canal. 
 
 All c-f the instances cited above are, however, by way of general 
 exception to the rule according to which the negotiating of 
 treaties is in the hands of the President. The Senate's function, 
 so far at least as its formal action is concerned, is limited to the 
 disapproval, or ratification, with or without amendments, of the 
 treaties after they have been agreed upon by the President and 
 the chancelleries of the foreign countries concerned. 
 
 Though, as has just been said, the formal participation of the 
 Senate as a body in the negotiation of treaties is not often now 
 solicited, as a matter of fact that body is, according to modern 
 usage frequently, indeed, it might be said, generally, kept well 
 informed as to the progress of international negotiations by means 
 of personal interviews between the Executive and prominent Sen- 
 ators, especially, of course, those serving upon the Committee on 
 Foreign Affairs of the Senate. In 1898 three of the five Com- 
 missioners appointed to negotiate the Treaty of Peace with Spain 
 were Senators and members of the Committee on Foreign Affairs. 
 
 Xevertheless, this practice has not prevented frequent friction 
 between the Senate and the Executive with reference to foreign 
 relations. Especially has this been true since the time when Mr. 
 Elaine held the position of Secretary of State. From the time 
 when Monroe became Secretary of State in 1S11 to the resig- 
 nation of Mr. Elaine in 1892, with the exception of a very 
 few years, this Secretaryship was held by men who had .previously 
 been in the Senate, but since then, with the exception of Sherman 
 and Knox, this has not been true." Speaking of the lack of har- 
 mony which has existed during this recent period, Professor 
 Keinsch writes: " Under these circumstances, it is not surprising 
 that there should have been more friction between the President 
 and the Senate on foreign matters than existed during earlier years 
 of our national life. Such constant friction as has during recent 
 years existed between the Senate and the Department of Stalo is, 
 
 11 Cf. Reiiisch, American Legislatures, p. 95.
 
 FOREIGX REI-ATIOXS. 461 
 
 in fact, unprecedented in our national history. It began under 
 Mr. Cleveland's regime, when the Olney-Pauncefote arbitration 
 treaty was rejected, partly on account of the unpopularity of the 
 Administration, partly on account of a strong political opposition 
 to any arbitration arrangements with Great Britain. Even under 
 McKinley, notwithstanding the unusual relations of friendliness 
 between the President and the Senate, the most important treaties 
 submitted by the Department of State were rejected or modified 
 by the Senate. Again it proved impossible to have a British arbi- 
 tration treaty ratified. The Hay-Pauncefote canal treaty failed, 
 and this was also the fate of several important reciprocity treaties. 
 . . . The Senate lias continued this critical attitude with the 
 result that no important treaty lias been allowed to pass without 
 such modification as has often entirely destroyed its original pur- 
 pose. The only exception is the Treaty of Paris, in the formation 
 of which individual senators had taken a prominent part. The 
 ^Newfoundland reciprocity treaty was ruined through the inter- 
 ference of special interests." 
 
 In addition to these instances of disagreement, in 1905 came the 
 disagreement between the Senate and Executive with reference to 
 the general arbitration treaties which had been negotiated, and 
 the irritation aroused in the Senate by the San Domingo protocol 
 entered into by the President on January 20, 1D05. Further ref- 
 erence to the principles involved in several of these disagreements 
 will presently be made. 
 
 Occasionally the Senate has turned down projects to the appro- 
 val of which it has earlier committed itself. 
 
 194. The " Recognition " of Foreign Governments. 
 
 The recognition by the United States of a status of belligerency, 
 or the recognition of the sovereignty and independence of a 
 foreign government are political acts, not subject to judicial re- 
 view 1 - and are performed by the President. At times the claim 
 has been made that this power of recognition is one to be exer- 
 cised at the dictation of Congress, but precedents are against the 
 
 12 See Chapter LI.
 
 462 UNITED STATES CONSTITUTIONAL LAW. 
 
 claim. 13 It is to be presumed, however, that when the recognition 
 of a status of belligerency or of the independence of a revolution- 
 ary government is likely to institute a casus belli with some other 
 foreign power, the President will be guided in large measure by 
 the wishes of the legislative branch. Upon the other hand, it is 
 the proper province of the Executive to refuse to be guided by a 
 resolution on the part of the legislature if, in his judgment, to 
 do so would be unwise. The legislature may express its wishes 
 or opinions, but may not command. 
 
 195. The Power of the Senate to Amend Treaties. 
 
 There would seem to be no question but that, having the power 
 either to approve or to disapprove an international agreement 
 negotiated by the President, the Senate has also the power, when 
 disapproving a proposed treaty, to state upon what conditions it 
 will approve; in other words, to amend any treaty submitted 
 to it. 14 In so doing there can be no question but that the 
 Senate is well within its constitutional right. L T pon the other 
 hand, it is equally within the province of the Executive to consider 
 the amendment of a treaty by the Senate as equivalent to a re- 
 jection of it. When, therefore, a treaty has been amended in the 
 Senate, it is within the President's power to abandon the while 
 treaty project, or to reopen negotiations with the foreign country 
 or countries concerned with a view to obtaining their consent to 
 the changes desired by the Senate, or, finally, to begin de novo and 
 attempt to negotiate an entirely new treaty, which he may hope 
 will secure senatorial approval. In case he decides to follow the 
 second of these courses, namely, to secure the approval of the 
 foreign country or countries to the amendments to the treaty pro- 
 ject made in the Senate, and is successful in this, it would seem 
 
 is See Senate Docs., Nos. 40 and 56, 54th Cong., 2cl Sess.; Hinds, Pre- 
 cedents of the House of Representatives, chapters XLVIII, XLIX. 
 
 i* The approval or disapproval of a treaty project by the Senate is often 
 spoken of as the ratification or refusal to ratify. Strictly speaking, however, 
 this language is incorrect, as the ratification of a treaty is the final act 
 performed by the President by which the agreement is declared in force, 
 between the United States and the foreign State or States which are the 
 parties to it.
 
 FOREIGN RELATIONS. 463 
 
 that the treaty need not again be submitted to that body for its 
 approval, but may be at once promulgated. 15 
 
 When, in 1795, the Jay treaty was submitted to the Senate for 
 approval, that body advised the President to approve on condition 
 that certain specified changes were made in it. These changes 
 having been consented to by Great Britain the treaty was ratified 
 without again submitting the instrument to the approval of the 
 Senate. The question as to the propriety of this course had been 
 submitted by Washington to the members of his cabinet and up- 
 held by them. The same practice has been followed in subse- 
 quent cases. Where, however, the changes made in a treaty pro- 
 ject have not been specifically indicated by the Senate as desired 
 by that body, it has been very properly held that the amended 
 project should be again submitted to the Senate for its action 
 thereon. 16 
 
 The Senate's right to amend a treaty has been directly upheld 
 by the Supreme Court. In Haver v. Taker 17 the court say: 
 " In this country a treaty is something more than a contract, for 
 the federal Constitution declares it to be the law of the land. If 
 so, before it can become a law, the Senate, in whom rests the au- 
 thority to ratify or approve it, must agree to it. But the Senate 
 are not required to adopt or reject it as a whole, but may modify 
 or amend it" 18 The approval of the Senate being essential to the 
 validity of all treaties entered into by the United States, 19 it has 
 been held that all protocols, and explanations given by the Execu- 
 tive as to the meaning of treaty provisions, which have not been 
 passed upon and approved by the Senate, are not to be considered 
 as internationally binding upon the United States, or enforced in 
 its courts. For this reason it is not constitutional for the Presi- 
 dent to insert in a treaty secret provisions which have not been 
 approved by the Senate. Most of the written constitutions of 
 foreign Powers have specific prohibitions with reference to secret 
 provisions. 
 
 15'Crandall, Treaties: Their Making and Enforcement, pp. 68 et seq. 
 IG CranJall, pp. 68 et scq. 
 "9 Wall. 32; 19 L. ed. 571. 
 
 is Senator Lodge enumerates sbity-eight treaties that were amended by 
 the Senate and afterward ratified. 
 
 19 For qualification of this statement, see Chapter XXXIII.
 
 404 UNITED STATES CONSTITUTIONAL LAW. 
 
 196. Foreign States Held to a Knowledge of the Location of 
 Treaty-Making Powers. 
 
 Generally speaking, according to rules of international law, one 
 State is not concerned with, and, therefore, not required to be cog- 
 nizant of, the constitutional law of another State with which it 
 has dealings. With respect, however, to the constitutional treaty- 
 making powers of the governmental organs of that State, other 
 States are required to be informed; qui cum olio cotdrahit, vet 
 est, eel debet esse non ignarus co-ndilionis ejus and, therefore, 
 it is no great ground of complaint on the part of a State, as, for 
 example, England, in whose Executive is exclusively vested the 
 treaty-making power, when a treaty .project which has been mutu- 
 ally agreed upon between the Executive of that country and the 
 Executive of the United States, fails of approval, or is amended 
 in the Senate. 20 
 
 It would seem, however, that when the American Senate amends 
 a treaty, and then formally ratines it as amended, and returns it 
 to the President for him to submit to the other nation concerned, 
 there is some ground for complaint that thereby such nation is 
 improperly placed in a position where it is called upon to pass 
 upon a project which has not been based, upon negotiations be- 
 tween the two States in which opportunity has been given to state 
 and argue the merits upon both sides of the project. In other 
 words, that the onus of accepting or rejecting a coiupleted project 
 is thereby improperly placed upon the treaty -making organ of the 
 foreign State. This would appeal 1 to have been the objection 
 made by Lord Lansdowne in his note of February 22, 1901, to 
 Lord Paunceiote, with reference to the Hay-Pauneefote treaty 
 which in December, 1900, had been amended and then approved 
 by the Senate. This treaty, it will be remembered, had for its 
 aim the definite determination of certain matters which had been 
 covered by the Clayton-Bulwer treaty, the subsisting force of 
 
 20 In order, however, to avoid the possibility of a misunderstanding and 
 consequent irritation, it has been a common, though not uniform, practice 
 to state explicitly hi the powers granted those who are to negotiate a treaty, 
 that their action, in order to become binding on the United States, requires 
 the approval of the President and the Senate.
 
 FOBEIGX KELATIOX*. 465 
 
 which had been in dispute. The Senate's amendment to the new 
 arrangement agreed upon between Secretary of State Ilaj and 
 Lord Lansdowne, was amended by the Senate by the insertion of 
 the statement that the Clayton-Bulwer treaty was '* hereby super- 
 seded." Referring to this provision, Lord Lansdowne said: 
 '' The Clayton-Bulwer treaty is an international contract of un- 
 questioned validity- a contract, which, according to well-estab- 
 lished international usage, ought not to be abrogated or modified 
 save with the consent of both the parties to the contract. His 
 Majesty's Government rind themselves confronted with a proposal 
 communicated to them by the United States Government, without 
 any previous attempt to ascertain their views, for the abrogation 
 of the Clayton-Bulwer treaty." 
 
 197. Plenary Powers of Ratification. 
 
 Whether or not this necessity for senatorial approval to all 
 treaty projects renders it constitutionally impossible for the 
 United States to give to diplomatic agents full powers to ratify 
 treaties negotiated by them and thus render them immediately 
 effective without subsequent submission to the Senate, is doubtful. 
 The point has never been passed upon by our courts; but it is 
 quite possible that should a judicial pronouncement upon this 
 .t be required, it would be held that for the Senate to commit 
 itself in advance to wliatever conditions the treaty negotiators 
 might agree upon, would be the delegation of a power prohibited 
 iy that principle of our constitutional law, which declares that 
 a power the exercise of which is delegated by the Constitution to 
 a particular governmental organ may not be delegated by that 
 organ to another department. 
 
 However this may be, the Senate and the President may, of 
 course, give to their agents such powers and instructions as will 
 hold them the President and the Senate morally bound to 
 ratify what their plenipotentiaries have agreed to. 
 
 In earlier times writers upon International Law, Grotius, 
 Putfendorf and Vattel, for instance, held that a State was abso- 
 lutely bound by the treaties entered into by its agents when acting 
 30
 
 406 UNITED STATES CONSTITUTIONAL LAW. 
 
 within the limits of their instructions. Later writers, however, 
 generally hold that this ratification may, for strong and sub- 
 stantial reasons, be refused. 21 
 
 Up to 1815 the general practice of the President was to obtain 
 the approval of the Senate to the appointment of, and to the in- 
 structions given to, commissioners for the negotiation of contem- 
 plated treaties. Since that time, however, this practice has been 
 seldom followed. This change has, however, not escaped occa- 
 sional formal protest from the Senate. 
 
 After a treaty has been signed by the commissioners appointed 
 to negotiate it, or agreed upon between the departments of State 
 of the countries concerned, there is no constitutional obligation 
 upon the President to submit it to the Senate, and, even after 
 submission to that body, he may withdraw it, as for instance was 
 done by President Cleveland with reference to a reciprocity treaty 
 with Spain which had been sent to the Senate in 188-i by Presi- 
 dent Arthur. In a like manner the Hawaiian annexation treaty 
 of 189*3 and the Nicaraguan Canal Convention of 1884 were with- 
 drawn. " for re-examination," after having been sent to the Senate. 
 
 Even -after being favorably acted upon by the Senate, it would 
 appear that, under certain circumstances, the President may re- 
 fuse his ratification. Thus, in 1888, when China proposed 
 certain changes in an agreement with this country which had 
 already been approved by the Senate, the President abandoned the 
 entire project 
 
 21 Crandall, pp. 12 et seq.
 
 CHAPTER XXXIII. 
 
 INTERNATIONAL AGREEMENTS WHICH DO NOT REQUIRE THE AP- 
 PROVAL OF THE SENATES 
 
 198. International Agreements not Requiring Approval by 
 Senate. 
 
 As has been seen, all treaties to which the United States is a 
 party, in order to become legally binding upon the United States 
 and enforceable in its courts, require, in some stage of their nego- 
 tiation, the approval of the Senate as manifested by a vote of two- 
 thirds of its members present when the approval is given. 2 Not 
 all agreements entered into by the United States with foreign 
 powers are held to be treaties in the sense in which that term is 
 used in the treaty clause of the Constitution. Such agreements 
 as are held not to be treaties in this sense, it has been the practice 
 of the President, acting in pursuance of his general powers as 
 Chief Executive or as authorized by congressional statute, to enter 
 into and promulgate without submission to the Senate. Further- 
 more, in not a few instances the Senate has itself expressly con- 
 ferred upon the President the power to contract with foreign pow- 
 ers with reference to specified matters. 
 
 This power, then, of the President to enter into international 
 arrangements free from the necessity of obtaining the subsequent 
 approval of the Senate may be treated under the following heads : 
 
 1. His power inherent in him as the Chief Executive and 
 commander-in-chief of the army and navy, 
 
 1 Upon this subject sec the pamphlet entitled " International Agreements 
 Without the Advice and Consent of the Senate," by Mr. James F. Barnett, 
 reprinted, with additions, from the Yale Review; the article by Hon. J. B. 
 Moore in the Political Science Quarterly for September, 1905, entitled 
 "Treaties and Executive Agreements;" and the article by Mr. C- C. Hyde in 
 the Orccnbag for April, 1905, entitled " Agreements of the United States 
 other than Treaties." 
 
 2 Only the final vote of approval or to postpone indefinitely requires the 
 two-thirds vote. For all other parliamentary motions with reference to a 
 treaty, a simple majority is sufficient. 
 
 [407]
 
 468 UNITED STATES CONSTITUTIONAL LAW. 
 
 2. His power as granted him by statute, 
 
 3. His power as delegated to him by the Senate, the co-pos- 
 sessor with him of the treaty-making power. 
 
 IS3. International Powers of the President as Chief Executive : 
 International Correspondence. 
 
 International correspondence is exclusively in the hands of the 
 President,, or his agent, the Secretary of State. 3 Hence it is im- 
 proper for any international documents to be addressed to, or 
 sent directly to the Senate, or for any attempt to be made, in any 
 way, by an agent of a foreign power to influence directly the 
 action of the Senate upon a treaty that is pending before it or is 
 Fater to be sent to it for its action, thereupon. Upon the other 
 hand, It is, of course, improper for the Senate or any other organ 
 of the Federal Government, by resolution or otherwise, to attempt 
 to communicate with a foreign power except through the Presi- 
 dent. Thus, when in 1877 Congress passed two joint resolutions 
 congratulating the Argentine Republic and the Republic of Pre- 
 toria upon their having established a republican form of govern- 
 ment, and directing, in. the one case, the Secretary of State to 
 acknowledge the receipt of a despatch from Argentine, and in the 
 other to communicate with Pretoria, the President vetoed both 
 resolutions. 4 
 
 By virtue of the power exclusively vested in him to conduct 
 diplomatic negotiations between this and foreign countries, the 
 President has,, since early years, entered into numerous agree- 
 ments with foreign chancellaries for the settlement of claims made 
 by private American, citizens against foreign governments. In a 
 considerable number of cases, these claims have been settled by 
 
 3 Communications between the States of the Union and the Federal Govern- 
 ment are made through the Secretary of State and not through the Presi- 
 dent. This rule was, however, several times disregarded by President Pioose- 
 veTt. 
 
 * Richardson's Messages and Papers of the President, VII, 430. 
 
 5 An especially interesting case was that of the Mora claim. For an 
 account of this by Professor J. B. Moore, see the Political Science Quarterly, 
 XX, pp. 403 et seq.
 
 INTERNATIONAL AoK EK^IENTS. 
 
 means of arbitration agreed upon between the foreign offices -con- 
 cerned. After describing the various instances of executive action 
 under this head, Professor Moore says : " If thus .appears that, 
 if we include only the more formal settlements, there have been 
 thirty-one cases in which claims against foreign governments have 
 been settled by executive agreement, and that twenty-Beven arbi- 
 trations have been held under such agreements as against nineteen 
 under treaties, where the settlement embraced claims against the 
 foreign government alone and not against the United States. 6 
 
 In no case has the President attempted, without consulting the 
 Senate, to adjust finally claims brought by foreigners against tbe 
 United States.' In no case, also, has the President, by executive 
 action, attempted the settlement of claims set up by tbe United 
 States in its own behalf. 
 
 200. Protocols. 
 
 The term " Protocol," as used in International Law, has as- 
 cribed to it several meanings. The two most common of these 
 meanings are: 
 
 1. As describing the records of tlie meetings of commissioners 
 for the negotiation of a treaty. These records, though, of course, 
 not parts of the treaty finally entered into, are often of value for 
 the interpretation of such treaty. 
 
 2. As describing an agreement reached between the foreign 
 offices of two countries, which has been reduced to definite written 
 statement, but has not been ratified as a treaty by the States 
 parties to it. How far such agreements, though not legally bind- 
 ing, morally bind the parties to them, depends upon the par- 
 ticular circumstances of each case. 
 
 * Political Science Quarterly, XX, p. 414. 
 
 7 In two instances claims of foreigners against the United States were 
 eubiiiittod to arbitral tribunals by rxrcutive agreement, hut in both instances 
 it was expressly provided that any awards that might be made shold be a 
 claim not against the United States, but solely againat tfc estates of certain 
 American citizens whose estates were to be adjusted before the same arbitral 
 tribunals. Cf Grccubag. XVII, 233, Artick 'Agreements of tne United 
 States Other than Treaties."
 
 470 UNITED STATES CONSTITUTIONAL LAW. 
 
 The most common use to which protocols in this sense are put, 
 is in fixing the general terms in which a final treaty especially 
 a treaty of peace is to be negotiated. A recent example of this 
 is the protocol of 1898 providing for the appointment of a com- 
 mission to negotiate the Treaty of Peace with Spain. 8 
 
 The constitutional authority of the President without consult- 
 ing the Senate to enter into protocols of agreement as the basis 
 for treaties to be negotiated, is beyond question, and has repeat- 
 edly been exercised without demur from the Senate. 9 
 
 The protocol signed by the allies (the United States being 
 among their number) at Pekin in 1901 after the Boxer troubles, 
 though in the nature of a military convention, providing as it did 
 for the withdrawal of the allied forces from Pekin, was yet prac- 
 tically of a treaty character. It provided for the payment of 
 indemnities by China, for an international commission to receive 
 and distribute these indemnities, the prohibition of the importa- 
 tion into China for two years of arms and ammunition, the delimi- 
 tation of the legation quarters in Pekin, and for various reforms 
 and concessions on the part of China. Commenting upon this 
 protocol, Mr. Barnett observes: " This case is interesting, be- 
 cause it shows how the force of circumstances compelled us to 
 adopt the European practice with reference to an international 
 agreement, which, aside from the indemnity question, was almost 
 entirely political in character. As has been pointed out above, 
 purely political treaties are, under constitutional practice in Eu- 
 rope, usually made by the executive alone. The situation in 
 China, however, abundantly justified President McKinley in not 
 submitting the protocol to the Senate. The remoteness of Pekin, 
 the jealousies between the allies, and the shifting evasive tactics 
 of the Chinese Government, would have made impossible any- 
 thing but an agreement on the spot." 
 
 In the case of the Boxer Protocol, no serious objection was 
 made to the President's failure to adjust the questions involved by 
 
 8 30 U. S. Stat. at Large, 1742. 
 
 For instances of protocols, see Butler, The Treaty Making Power, II, 
 p. 371, note.
 
 INTERNATIONAL AGREEMENTS. 471 
 
 means of a treaty submitted to the Senate for its approval. When, 
 however, in January, 1905, President Roosevelt entered into a 
 protocol agreement with San Domingo for the administration of 
 its customs with a view to providing for the adjustment and 
 payment of foreign creditors of that country, it was immediately 
 urged, upon the fact becoming known, that the action content 
 plated was one which could be authorized only by a treaty wlrcb 
 had had the approval of the Senate. Though the protocol of JVad- 
 ary 20th made no reference to the Senate's approval being neces- 
 sary to its validity, and contained the provision that it was to go 
 into effect on February 1st, the President disclaimed the purpose 
 of entering into the arrangement without first obtaining the, Sen- 
 ate's consent. The protocol, in amended form, expressly providing 
 for the Senate's approval, was submitted to that body, but upon 
 that body's failure to act upon it, the President, acting upon hi? 
 own responsibility, was able to secure, informally, substantially 
 the end aimed at in the protocol. A treaty governing the subject 
 was finally approved by the Senate and ratified by the Dominican 
 Government 
 
 201. Modi Vivendi. 
 
 As the term indicates, a modus vivendi is a temporary arrange- 
 ment entered into for the purpose of regulating a matter of con- 
 flicting interests, until a more definite and 'permanent arrangement 
 can be obtained in treaty form. Continued and unquestioned 
 practice supports the doctrine that these modi vivendi may be 
 entered into by the President without consulting the Seaate. 10 
 
 202. International Agreements Entered into by the President 
 
 under His Military Powers. 
 
 In the exercise of his powers as Commander-in-Chief of the 
 army and navy the President of the United States, from both 
 necessity and convenience, is often called upon to enter into 
 arrangements which are of an international character. These 
 conventions do not require the approval of the Senate. A con- 
 
 10 For instances of modi vivendi, see Butler, I, p. 369, note.
 
 -472 UNITED STATES CONSTITUTIONAL LAW. 
 
 spicuous example of international agreements thus entered into 
 is the protocol signed at Pekin in 1&01, to which reference has 
 already been made. All protocols of agreement entered into for 
 the purpose of furnishing' a basis for treaties of peace, as for 
 example, the Protocol of 1898 with Spain, come under this head. 
 So do all conventions providing in time of war for an armistice, 
 or the exchange of prisoners, etc. 
 
 The President's military powers exist in times of peace as 
 well as during war. And thus, in IS 17, the President, without 
 obtaining the advice and consent of the Senate, was able, by an 
 exchange of diplomatic notes, to arrange with England regarding 
 the number of vessels of war to be kept by the two powers upon 
 the 'Great Lakes. So also, upon his own discretion, the President 
 is able to send American vessels of war to whatever ports he sees 
 fit, whether for tlte purpose of friendly visit, of furnishing pro- 
 tection to American citizens or their property, or of making a 
 " demonstration " in order to obtain desired action on the part of 
 the State thus overawed. 
 
 203. International Agreements Entered Into, or Action Taken 
 by the President, by Virtue of Authority Granted Him 
 by Treaties Previously Ratified. 
 
 The preceding sections have considered the power of the Presi- 
 dent to enter into international agreements, and to take action 
 with reference to matters of an international character, by virtue 
 of powers inherent in "him either as the Chief Executive of the 
 Xation or as constitutional Commander-in-Chief of the army and 
 navy. We turn now to a consideration of treaty-making powers 
 which may constitutionally be exercised by him, without in each 
 instance obtaining the advice arid consent of the Senate, by virtue 
 of general authority given to him in treaties previously entered 
 into and approved by the Senate. 
 
 This question, which is one of both political expediency and of 
 constitutional law, received thorough discussion both in Congress 
 and the press in connection with the general treaties of arbitra- 
 tion which were agreed upon in 1904 and 1905 between Secretary
 
 47-> 
 
 of State Hay in be-half of the United States, and the foreign min- 
 isters of various other conn trie-. 
 
 At The Hague Conference in 1899 an attempt was made to 
 provide for obligatory arbitration in certain cases. This failed, 
 but by Article XVI it was declared that: "In questions of a 
 judicial character, and .especially in questions regarding the 
 interpretation and application of international treaties or con- 
 ventions, arbitration is recognized by the Signatory Powers as the 
 most efficacious and at the same time the most equitable method 
 of deciding controversies which liave not been settled by diplo- 
 matic methods;" and article XX provided for the establishment 
 of " a permanent Court of Arbitration, accessible at all times, and 
 acting, unless otherwise stipulated by the parties, in accordance 
 with rules of procedure included in the present convention," to 
 which resort might be had for the settlement of disputes which 
 diplomatic methods had failed to adjust. In addition to these 
 provisions, by Article XIX of The Hague Convention the Signa- 
 T< iy Powers reserved the right to enter into general or particu- 
 lar treaties providing for obligatory arbitration with reference to 
 such subjects as they might think advisable. 
 
 In 1003. by a treaty signed at London, October 14th, France 
 and England agreed in the future to submit to The Hague Tribu- 
 nal certain specified classes of questions. Article 11 provided 
 that " Dcuis chn<{iie ens pariicallcr, lc-s Jlc.ules Parlies Ccm- 
 irartantes, a-vant de s addresser a la Cour perma-nante d' arbitrage, 
 ait/neront mi compromise -special, determinant I'objct da litige, 
 I'entendue des pouvoirs dcs arbitres." This Anglo-French treaty 
 became the model for a number of treaties between other Euro- 
 pean nations, as well as for ten arbitration treaties negotiated 
 by Mr. Hay in 1904-1905, and submitted to the Senate for its 
 approval. 
 
 The int two article? of these treaty projects read as follows: 
 
 "Article I. Differences which may arise of legal nature, or 
 relating to the interpretation of treaties existing between the two 
 contracting panic-, and which it may no} have been possible to 
 settle by diplomacy, shall be referred to the permanent court of
 
 474 UNITED STATES COXSTITUTIOXAL LAW. 
 
 arbitration established at The Hague by the convention of the 
 29th of July, 1899, provided, nevertheless, that they do not affect 
 the vital interests, the independence or the honor of the two con- 
 tracting States, and do not concern the interests of third parties." 
 
 "Article II. In each individual case the high contracting 
 parties, before appealing to the permanent court of arbitration, 
 shall conclude a special agreement denning clearly the matter in 
 dispute and the scope of the powers of the arbitrators, and fixing 
 the periods for the formation of the arbitral tribunal and the 
 several stages of the procedure." 
 
 In the Senate objection developed to the provision that the 
 definition of the matter in dispute and the fixing of the powers 
 of the arbitrators should be " by special agreements," which, the 
 terminology would imply, might be entered into, in each case, by 
 the President without consulting the Senate. That body, there- 
 fore, amended the treaty projects by substituting the word 
 " Treaty " for the word "Agreement." The effect of this change 
 was, of course, to make it necessary to obtain the approval and 
 consent of the Senate to each and every proposition that might 
 thereafter arise for submitting a dispute to arbitration, even when 
 such propositions were clearly within the scope of Article I of the 
 treaties which Secretary Hay had negotiated. President Roose- 
 velt holding that thus, in any event, a special treaty would have 
 to be negotiated and approved by the Senate before a matter 
 could be submitted to arbitration, declared that the ratification of 
 the so-called general arbitration treaties which the Senate had 
 amended, would achieve nothing, and declined to submit them, 
 as thus amended, to the foreign countries concerned, for their 
 approval, and the whole project was, for the time being at least, 
 abandoned. 
 
 With the policy or impolicy of the Senate's refusal explicitly 
 to endow the Executive with the authority by " special agree- 
 ments " to submit to arbitration before The Hague tribunal of 
 matters coming within the terms of the ten arbitration treaties 
 negotiated by .Secretary Hay, a treatise on Constitutional Law is 
 not concerned. As regards, however, the point made by some of
 
 IlTTEKNATIOHAL AcKEEMKXTS. 475 
 
 the Senators that the delegation of such authority to the President 
 would not be constitutional, it may be said that both judicial 
 precedents and previous practice of the Senate itself support in 
 principle the treaties in question. 
 
 There have been numerous instances in which the Senate has 
 approved treaties providing for the submission of specific matters 
 to arbitration, leaving it to the President to determine exactly the 
 form and scope of the matter to be arbitrated and to appoint the 
 arbitrators. Professor J. B. Moore, in the article to which refer- 
 ence has already been made, enumerates thirty-nine instances in 
 which provision has thus been made for the settlement of pecu- 
 niary claims. Twenty of these were claims against foreign gov- 
 ernments; fourteen were claims against both governments, and 
 five against the United States alone. 11 
 
 Notwithstanding the defeat of the Hay treaties in 1&05, the 
 President still has, by virtue of The Hague Convention itself, a 
 considerable power upon his own initiative of referring many 
 matters of international dispute to the Permanent Court of Arbi- 
 tration at The Hague or to arbitral commissions specially created, 
 as provided for in that instrument. As we have already seen, the 
 President, by reason of his control of all diplomatic relations, has 
 considerable power to refer to arbitration matters of dispute 
 which he is unable to settle through the ordinary diplomatic chan- 
 nels. And, in the exercise of this discretion, he can, of course, 
 refer claims, especially those of a pecuniary nature, and ques- 
 tions of treaty interpretation to the tribunals established or pro- 
 vided for by The Hague Convention. Thus, without consulting 
 with the Senate, he referred the Pious Fund controversy with 
 Mexico to The Hague Tribunal. 12 
 
 Aside from any other treaty agreements, there seems to be 
 some question as to the extent of the President's powers under 
 
 11 Political Science Quarterly, XX, 403. 
 
 12 It is to be observed, however, that at the time the Pious Fund matter 
 was, by the President, with the consent of Mexico, referred to The Hague 
 Tribunal there was a subsisting treaty between this country and Mexico 
 a treaty which, of course, had had the approval of the Senate providing for 
 arbitration of disputes of the character of the Pious Fund.
 
 4TG UNITED STATES CONSTITUTIONAL LAW. 
 
 The Hague Convention. Ex-Secretary of State John \V. Foster 
 has said: ' I apprehend that should our government decide to 
 refer any dispute with a foreign government to The Hague Tri- 
 bunal, "President Roosevelt, or whoever should succeed him, would 
 enter into a convention with the foreign government, very care- 
 fully setting forth the question to be arbitrated, and submit that 
 convention to the Senate for its advice and consent. If I read 
 the Constitution of the United States and The Hague Convention 
 aright, such would be the only course permissible by .those instru- 
 ments." - 13 
 
 To much the same effect is the declaration of Mr. F, \V. Holls, 
 who was the Secretary to The Hague Conference. He says : 
 " The appointment of a Commission of Inquiry having no further 
 necessary consequences than the providing for each party's share 
 of necessary expenses, would seem to be within the ordinary 
 diplomatic functions of the President and the Department of 
 State by memorandum or protocol, -whereas an agreement to sub- 
 mit any question to a court of arbitration, the decision to be 
 binding upon the parties, must necessarily take the form of a 
 treaty requiring the constitutional co-operation of the Senate." 
 
 Upon the other hand. Judge Simeon E. Baldwin gives as his 
 opinion that: " The Hague Convention, when ratified by the 
 Senate, became thus a standing warrant, or, so to speak, a power 
 of attorney, from the United States to the Presidonl, to submit 
 such international controversies as he might think fit to the 
 ultimate decision of the International Court of Arbitration." 15 
 
 204. International Agreements Entered Into, or Action Taken 
 by the President, by Virtue of Authority Granted Him 
 by Congressional Statute. 
 
 In many instances Congress has, by statute, authorized the 
 Executive to perform acts of an international character, that 
 is, afts with which other countries have been directly concerned. 
 
 is Yale La a- Journal, XI. p. 09. 
 
 1*77(6 J'cticc Cijiifrrcni-r til The Hague, p. 216. 
 
 is Yale Review, IX, p. 415.
 
 .5.77 
 
 Under such authorization, numerous international postal arrange- 
 ments have been entered into. Thus by act of 187:2, Congress 
 declared that " for the purpose- of making better postal arrange- 
 ments with foreign countries/' the Postniaster-Geuieral, acting 
 tinder the advice of the President, might u negotiate and conclude 
 postal treaties." 
 
 In a similar manner,, that is, under congressional sanction, the 
 President has negotiated and entered into agreements with 
 foreign countries with reference to copyrights and trademarks. 
 
 Various other congressional acts of this character, as, for ex- 
 ample, that of 1901, whereby the President was authorized to 
 lease eoaling stations from Cuba, might be mentioned, but the 
 most important of these and the only ones which need discussion 
 are those authorizing action with reference to- the tariff laws. 
 
 Since the first years under the Constitution, Congress has pur- 
 sued the policy of giving to the President a considerable execu- 
 tive discretion in the application and enforcement of its 1 
 governing commercial intercourse with foreign, countries. Of 
 this character was the Embargo Act of 1794, the act of 1799 
 governing commercial intercourse with France,, the Xon-importa- 
 tion Art of 1SOC, the Non-intercourse Acts of 1SP9- and 1810, 
 the acts of 1S15 and 1830 as to tonnage and other dues, the act 
 of 1SGO as to the non-importation of cattle and hidjes, and the 
 acts of 1S15, IS:: 4-, 1-23, 1886, 1888, and 1S&7 with reference 
 to the suspension of discriminating duties J 6 All of these acts 
 provided that whether or not they should go into effect should be 
 at the discretion of the President. 
 
 By section 3 of the act of IS 90 (the so-called McKiialej Act) 
 it was provided : " That with a view to secure reciprocal trade 
 with countries producing the following articles, and for this pur- 
 pose, on and after the first day of January, eighteen hundred and 
 ninety-two, whenever and so often as the President shall be satis- 
 lied that the government of any country producing and exporting 
 molasses^ wffee, tea, and hides, raw and uncwred, or any 
 of such articles, imposes duties or other exactions, upon the agri- 
 
 KC/. J. B. Moore in I'olitical Science Mvnthbj. XX. p. 396.
 
 478 UNITED STATES CONSTITUTIONAL LAW. 
 
 cultural or other products of the United States, which in view 
 of the free introduction of such sugar, molasses, coffee, tea and 
 hides into the United States, he may deem to be reciprocally 
 unequal and unreasonable, he shall have the power and it shall 
 be his duty to suspend, by proclamation to that effect, the provi- 
 sions of this act relating to the free introduction of such sugar, 
 molasses, coffee, tea and hides, the production of such country, 
 for such time as he shall deem just, and in such case during such 
 suspension duties shall be levied, collected and paid upon sugar, 
 molasses, coffee, tea and hides, the product of or exported from 
 such designated country, as follows." 
 
 This section had been put in the McKinley Act with a view 
 to securing reciprocal commercial agreements with foreign 
 powers, and ten such tariff arrangements were effected by the 
 President by means of an exchange of diplomatic notes simply. 
 These agreements remained in force until the enactment in 1894 
 of the Wilson-Gorman Act. 
 
 The constitutionality of this action under the act of 1890 was 
 contested on the ground that it amounted to a delegation by Con- 
 gress to the President of a portion of its legislative power ; but 
 the Supreme Court in Field v. Clark 17 held the provision valid. 18 
 
 By the third section of the Tariff Act of 1897 (the Dingley 
 Act) , the President was authorized to enter into reciprocity agree- 
 ments with foreign countries with respect to certain enumerated 
 articles, whereby in return for concessions obtained from other 
 countries, equivalent concessions were to be granted by the United 
 States. Under the authority thus granted a number of reciproc- 
 ity agreements were negotiated and promulgated by the President. 
 
 Section 4 of this act of 1897 also provided for reciprocity 
 treaties which should be approved by Congress. This section 
 will receive consideration in the next section. 19 
 
 " 143 U. S. 649 ; 12 Sup. Ct. Rep. 495 ; 36 L. ed. 294. 
 
 18 See Chapter LXV in which the delegation of legislative power is discussed. 
 
 is There have been some instances of international agreements entered into 
 by the President without the advice and consent of the Senate, and with- 
 out authorization by some previous treaty or statute, which cannot be grouped 
 under any one of the preceding heads mentioned in this chapter. Thus,
 
 INTERNATIONAL, AGREEMENTS. 479 
 
 205. Extradition. 
 
 The greatly preponderant weight of opinion is that, in the 
 absence of authority expressly given him by treaty or statute, 
 the President has not the constitutional right to extradite to a 
 foreign country a fugitive to this country. 20 The single instance 
 in which the President has extradited without such authority 
 expressly conferred upon him is the surrender to Spain by Lin- 
 coln in 1864 of one Arguelles. 
 
 Whether or not Congress has the power by statute to authorize 
 the President to extradite fugitives to countries with which the 
 United States has no subsisting treaty upon the subject is not 
 certain, as there has been no instance of the exercise of such 
 power. Reasoning upon general principles, however, there would 
 seem to be no constitutional objection to such legislation. 21 
 
 for example, in 1850 Great Britain ceded to the United States a reef in 
 Lake Erie upon condition that the United States would engage to erect there- 
 upon a lighthouse and maintain it, and agree to erect no fortifications there- 
 upon. This engagement the President made without consulting the Senate, 
 and the cession was made, and later, Congress having appropriated the funds, 
 a lighthouse was constructed. 
 
 2c Cf. Moore, Extradition. 
 
 21 Cf. Butler, 435.
 
 CHAPTER XXIV. 
 
 CONGRESSIONAL LEGISLATION FOR THE ENFORCEMENT OF 
 
 TREATIES. 
 
 2Q6. Treaties Cannot Appropriate Money. 
 
 Though all treaties, as declared by the Const itution, are parts of 
 the supreme law of the land, they are not always, in whole or in 
 part, self-executory; but require, in order to be put into full 
 force and effect, ancillary legislative action. Especially is this 
 legislative assistance required when an expenditure of money is 
 called for. The treaty-making power fs able to obligate 
 United States- internationally to the payment of sums of money. 
 but is not able itself to appropriate from the United States treas- 
 ury the amounts called for, or compel the legislature to provide 
 for their payment. 
 
 The question as to the obligation of Congress, morally or 
 legally, to appropriate moneys, the payment of which by the 
 United States is called for by agreement entered into with foreign 
 countries by the treaty-making power, arose in 179G in connec- 
 tion with Jay's treaty, which had been negotiated in 1794 and 
 ratified in 1795. The treaty having been communicated to the 
 House of Representatives in order that the moneys called for by 
 it might be appropriated, Gallatin and other members urged that 
 the House, before passing the appropriation asked for, was 
 entitled to see all the papers in the executive department relating 
 to the treaty in order that it might then pass upon the question 
 of its merits, and refuse or consent to the appropriation as should 
 to the House seem fit. A resolution calling upon the President 
 for the papers was adopted, but Washington, not wishing to create 
 a precedent, refused obedience to it, claiming that the House, 
 being no part of the treaty-making power, was not entitled, of 
 right, to see the documents in question. 
 
 Jefferson, in a letter to Monroe, stated 1 the position as follows: 
 
 1 Works, IV, 134. 
 
 [4SO]
 
 TKK..TII s AXI> CONGRESS. 
 
 " We conceive the constitutional doctrine to be that though the 
 President and Senate have the general power of making treaties, 
 yet wherever they include in a treaty matters confided by the Con- 
 stitution to the three branches of legislature, an act of legislation 
 will be requisite to confirm these articles, and that the House of 
 representatives, as one branch of the legislature, are perfectly 
 free to pass the act or to refuse it, governing themselves by their 
 own judgment whether it is for the good of their constituents to 
 let the treaty go into effect or not. On the precedent now to be 
 set will depend the future construction of our Constitution, and 
 whether the powers of legislation shall be transferred from the 
 President, Senate, and House of Representatives, to the President 
 and Senate, and Piamingo, or any other Indian, Algerine or 
 other chief." 
 
 Washington, in his special message refusing compliance with 
 the request of the House's resolution, said : " Having been a 
 member of the general convention, and knowing the principles on 
 which the Constitution was formed, I have ever entertained but 
 one opinion on this subject; and from the first establishment of 
 the government to this moment niy conduct has exemplified that 
 opinion, that the power of making treaties is exclusively vested 
 in the President, by and with the advice and consent of the 
 Senate, provided two-thirds of the Senators present concur; and 
 that every treaty so made and promulgated thenceforward became 
 the law of the land. It is thus that the treaty-making power has 
 been understood by foreign nations, and in all the treaties made 
 with them, we have declared, and they have believed, that, when 
 ratified by the President, with the advice and consent of the 
 Senate, they become obligatory. . . . As, therefore, it is per- 
 fectly clear to my understanding that the assent of the House of 
 Representatives is not necessary to the validity of a treaty; as the 
 treaty with Great Britain exhibits in itself all the objects requir- 
 ing legislative provision, and on these the papers called for can 
 throw no light; and as it is essential to the due administration of 
 the government that the boundaries fixed hy the Constitution 
 between the different departments should be preserved, a just 
 31
 
 482 UNITED STATES CONSTITUTIONAL LAW. 
 
 regard to the Constitution and to the duty of my office, under 
 all the circumstances of this case, forbids a compliance with your 
 request." 
 
 After some discussion, the House receded from its position 
 and passed the laws and appropriations necessary for carrying 
 the treaty into effect. 
 
 When the question of purchasing Louisiana came up, Jeffer- 
 son, in conformity with his views stated in the letter to Monroe, 
 at first proposed to submit the treaty to both Houses of Congress. 
 He later decided, however, to. submit it to the Senate only, but 
 informed the House that as soon as the treaty should be approved 
 by the Senate, it would be submitted to Congress " for the exer- 
 cise of their functions as to those conditions which are within 
 the powers vested by the Constitution in Congress." And, af cer 
 the treaty had been approved and ratified, he sent it to Congress 
 saying : " You will observe that certain important conditions can- 
 not be carried into execution but with the aid of the legislature." 
 These legislative measures were enacted, but without any explicit 
 statement of the principle which the House had urged in 1796. 2 
 
 The question was again discussed in connection with the appro- 
 priation called for in the treaty of 1867 purchasing Alaska from 
 Russia. After some debate, the House appropriated the mooey, 
 but prefaced the act with the assertion that " the subjects em- 
 braced in the treaty are among those which by the Constitution 
 are submitted to Congress and over which Congress has juris- 
 diction; and for these reasons it is necessary that the consent of 
 Congress should be given to the said stipulations, before the same 
 can have full force and effect." 
 
 The Senate objected to this statement, and, after having 
 referred the matter to a conference committee, the following com- 
 promise declaration was agreed upon : " Whereas, the President 
 of the United 'States has entered into a treaty with the Emperor 
 of Russia, . . . and whereas said stipulations cannot be car- 
 ried into full force and effect, except by legislation to which the 
 
 2C/. Moore, International Law Digest, V, 759.
 
 TREATIES A_\D CONGRESS. 483 
 
 consent of both Houses of Congress is necessary; therefore be it 
 resolved, etc/' 3 
 
 What has been said regarding the power of Congress to refuse 
 to appropriate moneys for the payment of which the United 
 States has been obligated by the treaty-making power applies 
 with equal force to whatever otEer legislation may be required 
 in order to put a treaty into full force and effect. 
 
 Though, as is seen from the foregoing, it cannot be said that 
 precedent has established the doctrine one way or the other, it is 
 quite clear that whatever moral obligation, as a matter of good 
 faith, or principle of expediency, may urge Congress to pass 
 appropriation or other laws required for putting into full force 
 and effect agreements entered into by the treaty-making power, 
 there is no constitutional means by which, in case of refusal, such 
 legislation may be compelled ; nor is there any constitutional right 
 on the part of the executive or judicial branches of the Federal 
 Government to supply the lacking legislation. A treaty is by the 
 Constitution declared to be a law of the land, and where its pro- 
 visions operate directly upon a subject, it may be enforced as such 
 without further legislative sanction. But where the treaty is not 
 thus directly executory, the executive and judicial departments 
 must wait until Congress has enacted Ihe necessary legislation. 
 Justice McLean declares: "A treaty is the supreme law of the 
 land in respect of such matters only as the treaty-making power, 
 without the aid of Congress, can carry into effect. Where a 
 treaty stipulates for the payment of money for which an appro- 
 priation is required, it is not operative in the sense of the Con- 
 stitution. Every foreign government may Ijp presumed to know- 
 that so far as the treaty stipulates to pay money the legislative 
 sanction is required." 4 
 
 In Foster v. Xeilson 5 Chief Justice Marshall with reference 
 to the legal character of a treaty, as fixed by United States Con- 
 stitutional Law, says : " Our Constitution declares a treaty to 
 
 3 For other discussions in Congress upon this subject, sec Butler, Chapter X. 
 < McLean. Constitutional Laic. p. 347. As to whether the last statement of 
 McLean is correct or not, see post, Section 221. 
 6 2 Pet. 253 ; 7 L. ed. 415.
 
 484 UNITED STATES CONSTITUTIONAL LAW. 
 
 be the law of the land. It is. consequently, to be regarded in 
 courts of justice as equivalent to an act of the legislature, when- 
 ever it operates of itself without aid of any legislative provision. 
 But when the terms of the stipulation import a contract when 
 either of tke parties engages to perform a particular act the 
 treaty addresses itself to the political, not to the judicial depart- 
 ment; and the legislature must execute the contract before it 
 cant became a rule for the court." 6 
 
 207. Congress May by Statute Abrogate Treaties. 
 
 As has been said r treaties, so far as they are self-executory, are 
 the supreme law of the land, and in this respect rest upon a 
 plane of equality with acts of Congress. But upon no higher 
 .plane. Resulting from this, it has been held in a number of well 
 considered cases that an act of Congress operates to repeal or 
 annul .prior treaty provisions inconsistent with it. 
 
 In- Edje v. Robertson,' after reviewing various cases, the court 
 say : "A treaty, then, is a- law of the land as an act of Congress 
 is? whenever its provisions present a rule by which the rights of 
 the private citizen or subject may be determined. And when 
 s-uck rigkts, are of a nature to be enforced in a court of justice, 
 that court resorts to the tfeaty for a rule of decision for the case 
 before it, as. it would to a statute. . . . But even in this 
 aspect of the case, there is nothing in this law which makes if 
 irrepeaJable or unchangeable. The Constitution gives it no 
 superiority over an act of Congress in this respect which may be 
 repealed or modified by an act of a later date. Xor is there any- 
 thing in its essentiaLcharacter or in the branches of the 
 
 als United States v. Percheman, 7 Pet. 51; 8 L. ed. 604. and Garcia v. 
 Lee, 12 Pet. 511; 9 L. ed. 1176. " If Congress . . . does not choose to carry 
 out a treaty or if it prefers to violate one, citizens of the United States, or 
 even subjects of foreign powers, seeking relief in our courts, may not, in that 
 manner, be able to- obtain redress for evils arising from the failure of the gov- 
 ernment of the United States to comply with treaty stipulations. The courts 
 are botmd by the laws enacted by Congress, and cannot declare them either 
 unconstitutional or inoperative because they violate national contracts or 
 natwuraf gw>d faith and honor/' Butler. I, 451, 31o. 
 
 fHeadmoney Cases, 112 U. S. 580; 5 Sop. Ct. Rep. 247; 28 L. ed. 798.
 
 TREATIES AND CONGRESS. 485 
 
 ment by which the treaty is made, which gives it this superior 
 sanctity. ... In short we are of the opinion that, so far as 
 a treaty made by the United Stares with any foreign nation can 
 become the subject of judicial cognizance in the courts of this 
 country, it is subject to such acts of Congress as Congress may 
 pass for its enforcement, modification or repeal." 
 
 The doctrine thus unqualifiedly stated has been repeatedly 
 followed in later cases. 8 Especially strong is the Chinese Exclu- 
 sion Case, Chae Chan Ping v. United States. 9 
 
 208. Whether the Treaty-Making Power may Modify or Re- 
 peal Laws Enacted by Congress. 10 
 
 To Congress is given the power by the Constitution to legis- 
 late with reference to certain matters. AVe have already learned 
 that by statute the President has been authorized in a number of 
 instances to enter into international agreements for the regulation 
 of certain matters within the legislative control of Congress. W-e 
 have now to examine whether, without congressional direction or 
 permission, it is competent for the treaty-making power to regulate 
 a matter which it is within the legislative power of Congress to 
 control; or, by international agreements, to alter Arrangeaieiits 
 which Congress has by statute already established. 
 
 That the treaty-making power extends to subjects within the 
 ordinary legislative powers of Congress there can be no doubt, 
 
 8 Butler, op. cit. II, 86, cites the following cases in which acts supersed- 
 ing prior treaties in conilict with them have been sustained by the Supreme 
 Court: United States v. McBratney, 104 U. S. 621; 26 L. ed. SW; Chew 
 Heong v. United States, 112 U. S. 536; 5 Sup. Ct. Rep. 255; 28 L. ed. 770; 
 Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244; 
 Draper v. United States, 164 U. S. 240; 17 Sup. Ct. Rep. 107; 41 L. ed. 419; 
 Thomas v Gay, 161) U. S. 204; 18 Sup. Ct. Rep. 340; 42 L. ed, 740; Fong 
 Yue Ting v. United States, 149 U. S. 60S; 13 Sup. Ct. Rep. 1016; 37 L. ed. 
 <K5: Chinese Exclusion Cases, 130 U- S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 
 1068; La Abra Silver Mining Co. A". United States, 17.3 U. S. 423; BO Sup. 
 Ct. Rt>p. 1(58; 44 L. ed. 223; United Stated v. Gue Lim, 176 U S. 459 ; 
 Mi p. Ct. Rep. 415; 44 L. ed. 544. 
 
 I !:;<> U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. e4. 1068. 
 
 10 for a very full account of discussions of this subject in Congress, see 
 Hinds' Precedents of the House <jf lii.^ri-sentntic^, Chapters XLVIil and 
 XL1X.
 
 486 UNITED STATES CONSTITUTIONAL LAW. 
 
 That is to say, the treaty-making .power is fully competent to 
 enter into agreements with foreign powers in respect to those 
 matters which are binding internationally upon the United States. 
 The question here to be considered is, however, whether these 
 international compacts become, so far as they are self-executing, 
 immediately binding municipally, that is, may be enforced as 
 law in our courts. The Supreme Court has, in a number of 
 instances, declared that treaties and acts of Congress stand, as 
 law, upon exactly equal planes, and, therefore, that the later 
 treaty operates to supersede the earlier law, exactly, as we have 
 seen, the later law has the effect of abrogating a prior incon- 
 sistent treaty. Thus in Cherokee Tobacco Case 11 the court say: 
 " The effect of treaties and acts of Congress, when in conflict, 
 is not settled by the Constitution. But the question is rot 
 involved in any doubt as to its proper solution. A treaty may 
 supersede a .prior act of Congress (Foster v. Keilson, 2 Pet. 2.>> ; 
 7 L. ed. 415) and an act of Congress may supersede a prior 
 treaty. (Taylor v. Morton, 2 Curt. . C. 454; The -Clinton 
 Bridge, 1 "VVolv. 155.)" 
 
 In United States v. Lee Yen Tai 12 the court declare: " That 
 it was competent for the two countries by treaty to have super- 
 seded a prior, act of Congress on the same subject is not to be 
 doubted; for otherwise the declaration in the Constitution that 
 a treaty, concluded in the mode prescribed by that instrument, 
 shall be the supreme law of the land, would not have due effect. 
 As Congress may by statute abrogate, so far at least as this 
 country is concerned, a treaty previously made by the United 
 States with another nation, so the United States may by treaty 
 supersede a prior act of Congress on the same subject. In Foster 
 v. Neilson (2 Pet 253; 1 L. ed. 415), it was said that a treaty 
 was ' to be regarded in courts of justice as equivalent to an act 
 of the legislature, whenever it operates of itself without the aid 
 of any legislative provision.' In the case of The Cherokee 
 Tobacco (11 Wall. 616), this court said ' a treaty may supersede 
 
 nil Wall/616; 20 L. ed. 227. 
 
 12185 U. S. 213; 22 Sup. Ct. Rep. 629; 46 L. ed. 878.
 
 TREATIES AND CONGRESS. 487 
 
 a prior act of Congress and aii act of Congress may supersede a 
 prior treaty.' So in the Head Money Cases (112 U. S. 580; 5 
 Sup. Ct Rep. 247; 28 L. ed. 798) this court said: ' So far as a 
 treaty made 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, modification or repeal.' Again, in Whitney v. 
 Robertson (124 U. S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 386) ; 
 ' By the Constitution a treaty is placed on the same footing, and 
 made of like obligation, with an act of. legislation. Both are 
 declared by that instrument to be the supreme law of the land, 
 and no superior efficacy is given to either over the other. When 
 the two relate to the same subject, the courts will always endeavor 
 to construe them so as to give effect to both if that can be done 
 without violating the language of either ; but if the two are incon- 
 sistent, the one last in date will control the other, provided always 
 that the stipulation of the treaty on the subject is self-executing.' 
 (See also Taylor v. Morton, 2 Curt, C. C. 454, Fed. Cas. No. 
 13,799 ; Clinton Bridge Case, Woolw. 155, Fed. Cas. No. 2,900 ; 
 Ropes v. Clinch, 8 Blatchf . 304, Fed, Cas. No. 12,041 ; 2 Story, 
 Const. 1838.) Nevertheless, the purpose by statute to abrogate 
 a treaty or any designated part of a treaty, or the purpose by 
 treaty to supersede the whole or a part of an act of Congress, 
 must not be lightly assumed, but must appear clearly and dis- 
 tinctly from the words used in the statute or in the treaty" 13 
 
 is See also Johnson v. Browne, 205 U. 6. 309; 27 Sup. Ct Rep. 539; 
 51 L. ed. 816. 
 
 Moore, in his Digest of International Law (V, 370), says: "A treaty 
 assuming it to be made conformably to the Constitution in substance and 
 form, has the legal effect of repealing under the general conditions of the 
 legal doctrine that ' leges posteriores priores contrarias abrogant,' all pre- 
 existing federal law in conflict with it, whether unwritten as law of nations, 
 of admiralty, and common law, or written as acts of Congress. A treaty, 
 though complete in itself, and the unquestioned law of the land, may be 
 inexecutahle without the aid of an act of Congress. But it is the constitu- 
 tional duty of Congress to pass the requisite laws. But the need of further 
 legislation, however, does not affect the question of the legal force of the 
 treaty per se. dishing, At Gen. 1854 (6 Op. 291). See also Akerman, At. 
 Gen. 1870 (13 Op. 354).
 
 488 UXITED STATES CONSTITUTIONAL LAW. 
 
 In fact, however, there have been few (the writer is not certain 
 that there have been any) instances in which a treaty incon- 
 sistent with a prior act of Congress has been given full force 
 and effect as law in this country without the assent of Congress. 
 There may indeed have been cases in which, by treaty, certain 
 action has been taken without reference to existing federal laws, 
 as, -for example, where by treaty certain populations have been 
 collectively naturalized, but such treaty action has not operated 
 to repeal or annul the existing law upon the subject. Further- 
 more, with specific reference to commercial arrangements with 
 foreign powers, Congress has explicitly denied that a treaty can 
 operate to modify the arrangements which it, by statute, has pro- 
 vided, and, in actual practice, Congress in every instance suc- 
 ceeded in maintaining this point. 
 
 209. Treaties and Revenue Acts. 
 
 There would seem to be certainly one exception to the rule 
 that the later treaty abrogates the prior inconsistent statute, and 
 this is in reference to acts for raising revenue. The Constitution 
 expressly declares that " all bills for raising revenue shall origi- 
 nate in the House of Representatives." u Strictly interpreted 
 this provision might be held to apply only to " bills," that is to 
 propositions for a statute, but in practice the spirit of the clause 
 has been followed rather than its exact letter. 
 
 In 1816 the question received an especially careful discussion 
 in Congress with reference to a convention which the treaty- 
 making power had entered into in 1815 with Great Britain. The 
 house passed a bill specifically enacting in detail the provision 
 of the treaty, with the evident purpose of making it plain that 
 
 See Davis v. Concordia, 9 How. 280; 13 L. ed. 138; Fellows v. Blacksmith, 
 19 How. 366; 15 L. ed. 684; The Clinton Bridge, 1 Woohvorth, 1.5.5; Kull 
 v. Kull, 37 Hun (N. Y.), 476. 
 
 The provision^ of the convention with China, proclaimed December 8, 1894, 
 were self -executing, so as to modify or repeal a prior statute with which 
 they were in conflict. Knox, At. Gen., Oct. 10, 1901 (23 Op. 545) approving 
 opinions of Conrad Act. At. Gen., May 20, 1896 (21 Op. 347) and Harmon, 
 At. Gen., May 26, 1896 (21 Op. 357)." 
 
 "Art. I, Sec. VII, Cl. 1.
 
 TREATIES AXD COXGKESS. 
 
 without such legislative enactment the provisions -would be with- 
 out legal force. The Senate refused its concurrence upon the 
 ground that the treaty was self-operative and, therefore, that the 
 legislative approval should be only declarator} 7 in form. After 
 reference to a committee of conference, a bill was agreed upon 
 between the two Houses, based upon the principle, conceded by 
 rue Senate, that " whilst some treaties might not require, others 
 may require, legislative provision to carry them into effect ; that 
 the decision of the question, how far such provision was neces- 
 sary, must be founded upon the peculiar character of tlie treaty 
 itself." 15 
 
 Tins was clearly a compromise agreement, but later practice 
 has served to strengthen the position of the House and it is 
 believed tliat there has been no instance in "winch a treaty has, 
 without legislative permission, been allowed to repeal or annul 
 existing revenue laws. 
 
 In 1846, the Senate Committee on Foreign Affairs, to which 
 had been referred a reciprocity treaty negotiated by Mr. Wheaton, 
 reported adversely in the following words: " The committee 
 . . . are not prepared to sanction so large an innovation upon 
 ancient and uniform practice in respect of the department of 
 government by which duties on imports shall be imposed. The 
 convention which has been submitted to the Senate changes duties 
 which have been laid by law. It changes them ex direclo and by 
 its own vigor, or it engages the faith of the nation and the fnith 
 of the legislature through which the nation acts to make the 
 change. In either aspect it is the President and Senate v/Ji <>. by 
 the instrumentality of negotiation, repeal or materially vary regu- 
 lations of commerce and laws of revenue which Congress had 
 ordained. Mure than this, the executive department, by the same 
 instrumentality of negotiations, places it beyond the power of 
 Congress to exceed the stipulated maximum of import duties for 
 at least three years, whatever exigency may intervene to require 
 it. In the judgment of the committee the legislature is the 
 department of government by which commerce should be regu- 
 
 13 Moore's Int. Law Digest, V, 223.
 
 490 UNITED STATES CONSTITUTIONAL LAW. 
 
 lated and laws of revenue be passed. The Constitution, in terms, 
 communicates the power to regulate commerce and to impose 
 duties to that department." It communicates it, in terms, to no 
 other. Without engaging at all in examination of the extent, 
 limits, and objects of the power to make treaties, the committee 
 believes that the general rule of our system is indisputably that 
 the control of trade and the functions of taxing belong, without 
 abridgement or participation, to Congress. They infer this from 
 the language of the Constitution, from the nature and principles 
 of our Government, from the theory of republican liberty itself, 
 from the unvaried practice, evidencing the universal belief of all, 
 in all periods and all parties and opinions. They think, too, that, 
 as the general rule, the representatives of the people, sitting in 
 their legislative capacity, with open doors, under the eye of the 
 country, communicating freely with their constituents, may 
 exercise this power more intelligently, more discreetly, may 
 acquire more accurate and more minute information concerning 
 the employments and the interests on which this description of 
 measures will press, and may better discern what true policy 
 prescribes and rejects than is within the competence of the execu- 
 tive department of the Government. To follow, not to lead ; to 
 fulfil, not to ordain, the law; to carry into effect, by negotiation 
 and compact with foreign governments, the legislative will, when 
 it has been announced, upon the great subjects of trade and 
 revenue; not to interpose with controlling influence; not to go 
 forward with too ambitious enterprise these seem to the com- 
 mittee to be the appropriate functions of the Executive." 16 
 
 16 Compilation of Reports of the Committee on Foreign Relations, VIII, 36. 
 With reference to this report, Mr. Calhoun, then Secretary of State, wrote to 
 Mr. Wheaton, " If this be the true view of the treaty-making power it may 
 be truly said that its exercise has been one continual series of habitual and 
 uninterrupted infringements of the Constitution." He then continued : " From 
 the beginning and throughout the whole existence of the Federal Government, 
 it [the treaty-making power] has been exercised constantly on commerce, 
 navigation, and other delegated powers, to the almost entire exclusion of 
 the reserved, which, from their nature, rarely ever come into question between 
 us and other nations. The treaty-making power has, indeed, been regarded 
 to be so comprehensive as to embrace, with few exceptions, all questions
 
 TREATIES AND CONGRESS. 491 
 
 In the reply of Secretary Calhoun to the report of the Senate 
 committee, Calhoun asserted that from the beginning of the gov- 
 ernment it had been the practice of the treaty-making power to 
 compact regarding matters within the legislative powers of Con- 
 gress. It will be observed, however, that neither the report, nor 
 the reply of Calhoun bear upon the point we are now considering, 
 namely, whether, when a treaty is entered into providing for the 
 regulation of a matter within the ordinary legislative control of 
 Congress, that treaty before it may be given full force and effect 
 in this country as law, requires congressional approval. 
 
 After an account of the practice of the government and of dis- 
 cussions of the "subject in Congress, Mr. Crandall, writing in 
 1904, says: "From this historical review it appears that, what- 
 ever may be the ipso facto effect of the treaty stipulations, entered 
 into by the President and Senate, upon prior inconsistent revenue 
 laws, not only has the House uniformly insisted upon, but the 
 Senate has acquiesced in, their execution by Congress; that in 
 case of proposed extensive modifications a clause has been inserted 
 in the treaty by which its operation is expressly made depend- 
 nt upon the action of Congress; and that in the recent Cuban 
 treaty such a clause was inserted on the initiative of the 
 Senate." 17 
 
 It is to be observed, before leaving this subject, that in no case 
 has the treaty-making power, whatever its actual concessions, ever 
 admitted in full terms its inability to fix as law matters which 
 
 that can possibly arise between us and other nations, and which can only 
 be adjusted by their mutual consent, whether the subject-matter be comprised 
 among the delegated or the reserved powers. So far, indeed, is it from 
 bein^ true, as the report supposes, that the mere fact of a power being 
 de-legated to Congress excludes it from being the subject of the treaty stipu- 
 lations, that even its exclusive delegation, if we may judge from the habitual 
 practice of the government, does not of which the power of appropriating 
 money affords a striking example. It is expressly and exclusively delegated 
 to Congress, and yet scarcely a treaty has been made of any importance 
 which d< es not stipulate for the payment of money. No objection has ever 
 been made en this account. The only question ever raised in reference to 
 it 1-. whether Congress has not unlimited discretion to grant or withhold 
 the appropriation." Moore's Digest of International Laic, V, 164. 
 IT Treaties and Treity Making, p. 145.
 
 492 UNITED STATES CONSTITUTIONAL LAW. 
 
 are within the legislative powers of Congress. Thus in 19C2, 
 Senator Cullom emphatically asserted that only with reference 
 to the appropriation of money is legislative assistance needed in 
 order that treaties may receive acceptance as law in our courts. 18 
 It is to be remarked, however, that in Bertram v. Robertson 10 
 and Whitney v. Robertson, 2 ' though the point is not expressly 
 discussed, it would seem that the court impliedly held that a 
 treaty might modify revenue laws, for m these cases the effect 
 of treaties upon existing tariff laws is considered without a sug- 
 gestion that the inquiry is an unnecessary one because of the 
 inability of the treaty power to modify such statutes. 
 
 18 Cf. Butler, I, 457. 
 
 "122 U. S. 116; 7 Sup. Ct. Rep. 1115; 30 L. ed. 1118. 
 
 20124 U. S. 190; 8 Sup. Ct. Rep. 456; 21 L. ed. 38ti.
 
 CHAPTER XXXV. 
 
 THE CONSTITUTIONAL EXTENT OF THE TREATY-MAKING POWER. 
 
 210. Treaty-Making Power Granted Without Express Limita- 
 tions. 
 
 The treaty-making power is granted in the Constitution with- 
 out any express limitations as to the subjects to which it may 
 relate. And all treaties, without qualification, are declared to 
 be the supreme law of the land, " anything in the Constitution 
 or laws of any State to the contrary notwithstanding." If, then, 
 there are any limitations to its extent, they must be found 
 inherent in the nature of the treaties themselves, or implied in 
 other clauses of the Constitution or in the very nature of the 
 polity which that instrument is designed to create and maintain. 
 
 211. Implied Limitations. 
 
 Xo treaty has ever been held unconstitutional in any court, 
 federal or state, in the United. States. That there are, however, 
 limits, despite the fact that in no case has there arisen the neces- 
 sity for applying them in a court of law, would appear beyond 
 question. From the early years of the present Government to 
 the decision of the Insular Cases in 1901, the Supreme Court 
 has, upon frequent occasions, stated, not only in general terms, 
 but with reference to specific matters, that there are limits to 
 the subjects that inay, by treaty, be made the supreme law of 
 the land. In Xew Orleans v. United States 1 speaking with 
 reference to the succession of the United States Government to 
 the French Government in. Louisiana, the court said: "This 
 succession did not authorize the United States to exercise preroga- 
 tives of sovereignty not consistent with the Constitution of 
 the United States." In Pollard's Lessee v. Hagaii 2 the court 
 
 110 Pet. 062; 9 Lr. ed. 573. 
 23 How. 212; 11 L. ed. 565. 
 
 [493]
 
 494 UNITED STATES CONSTITUTIONAL LAW. 
 
 said : " It cannot be admitted that the King of Spain could by 
 treaty or otherwise impart to the United States any of his royal 
 prerogatives, and much less can it be admitted that they have 
 capacity to receive or power to exercise them." And, later on 
 in the same opinion : " The court denies the faculty of the 
 Federal Government to add to its powers by treaty." In the 
 Cherokee Tobacco Case 3 the opinion declares : " It need hardly 
 be said that a treaty cannot change the Constitution, or be held 
 valid if it be in violation of that instrument. This results from 
 the nature and fundamental principles of our government." 
 
 In De Geofroy v. Riggs 4 Justice Field declares : " The treaty 
 power, as expressed in the Constitution, is in terms unlimited 
 except by those restraints which are found in that instrument 
 against the action of the government or of its departments, and 
 those arising from the nature of the government and of that of 
 the States. It would not be contended that it extends so far as 
 to authorize what the Constitution forbids, or a change in the 
 character of the government or in that of one of the States, or a 
 cession of any portion of the territory of the latter, without its 
 consent. (Fort Leavenworth Eailroad Co. v. Lowe, 114 U. S. 
 525, 5 Sup. Ct. Rep. 995; 29 L. ed. 264.) But with these ex- 
 ceptions, it is not perceived that there is any limit to the questions 
 which can be adjusted touching any matter which is properly 
 the subject of negotiation with a foreign country. (Ware v. 
 Hylton, 3 Dall. 199 ; 1 L. ed. 568 ; Chirac v. Chirac, 2 Wheat 
 259; 4 L. ed. 234; Hauenstein v. Lynham, 100 U. S. 483; 25 L. 
 ed. 628; 8 Opinions Attys. Gen. 417; The People v. Gerke, 5 
 California 381.)" 
 
 In Downes v. Bidwell 5 four of the majority justices in their 
 opinion deny the authority of the treaty-making power to " in- 
 corporate " annexed territory into the United States. And the 
 minority declare that " a treaty which undertook to take away 
 
 311 Wall. 616; 20 L. ed. 227. 
 
 4133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. 
 
 6 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.
 
 COXSTITUTIOXAL TREATY-MAKING POWEK. 495 
 
 what the Constitution secured, or to enlarge the federal jurisdic- 
 tion, would be simply void." G 
 
 These dicta of the Supreme Court that have been quoted are 
 really olitcr in that in no case was a treaty provision held void. 
 However, the statement being so often and so positively asserted 
 it may be taken for granted that there are constitutional limits 
 to the treaty-making power, and that when these limits are over- 
 stepped, the courts will interpose their veto. 
 
 212. The Treaty-Making Power and the Reserved Rights of 
 the States. 
 
 The supremacy of a federal treaty over a conflicting state law, 
 with reference to matters not reserved to the States, has not been 
 questioned since the time it was established that a federal statute, 
 enacted within either the concurrent or exclusive constitutional 
 
 6 For additional declarations by the Supreme Court that treaties are neces- 
 sarily subordinate to the Constitution, see Ware v. Hylton, 3 Dall. 199; 1 
 L. ed. 568; United States v. The Peggy, 1 Cr. 103; 2 L. ed. 49; Lattimer v. 
 Poteet, 14 Pet. 4; 10 L. ed. 328; Doe v. Braden, 16 How. 635; 14 L. ed. 
 1090; Thomas v. Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740. 
 Jn the Wong Kira Ark case, the minority point out that the effect of the de- 
 cision of the majority is to limit the treaty-making power to prevent children 
 of resident aliens becoming citizens of the United States. 
 
 Calhoun, in his Discourse on the Constitution and Government of the United 
 States, says: "It [the treaty-making power] is limited by all the provisions 
 of the Constitution which inhibit certain acts from being done by the 
 government, or any of its departments; of which description there are many. 
 It is also limited by such provisions of the Constitution as direct certain acts 
 to be done in a particular way and which prohibit the contrary, of which 
 a striking example is to be found in that which declares that ' no money 
 shall be drawn from the Treasury but in consequence of appropriations to be 
 made by law.' This not only imposes an important restriction on the power, 
 but gives to Congress as the law-making power, and to the House of Repre- 
 sentatives as a portion of Congress, the right to withhold appropriation's; 
 and, thereby, an important ^control over the treaty-making power whenever 
 money is required to carry a treaty into effect; which is usually the case, 
 especially in reference to those of much importance. There still remains 
 another, and more important limitation, but of a more general and indefinite 
 character. It can enter into no stipulation calculated to change the char- 
 acter of the government; or to do that which can only be done by the 
 constitution-making power ; or which is inconsistent with the nature and 
 structure of the government." I Works, 203.
 
 496 UNITED STATES CONSTITUTIONAL LAW. 
 
 competency of Congress, operates to nullify all inconsistent stare 
 legislation. In this respect, as the Constitution expressly declare-. 
 treaties and acts of Congress are upon precisely the same footiii.i. 
 
 In Ware v. Hylton/ decided in 1796, Justice Chase say- : 
 " There can be no limitation on the power of the people of 
 United States. By their authority the state constitutions were 
 made, and by their authority the Constitution of the United 
 States was established ; and they had the power to change or 
 abolish the state constitutions, or to make them yield to the Gen- 
 eral Government and to Treaties made by their authority. A 
 treaty cannot be the supreme law of the land, that is, of all the 
 United States, if any act of a state legislature can stand in its 
 way. If the constitution of a State (which is the fundamental 
 law of the State, and paramount to its legislature) must give way 
 to a treaty, and fall before it; can it be questioned whether the 
 less power, an act of the state legislature, must not be prostrate '. 
 It is the declared, will of the people of the United .States that 
 every treaty made by the authority of the United States shall be 
 superior to the constitution and laws of any individual State; and 
 their will alone is to decide. If a law of a State contrary to a 
 treaty is not void, but voidable only by a repeal or nullification 
 of a state legislature, this certain consequence follows : that the 
 will of a small part of the United States may control or defeat 
 the will oi the whole. The people of America have been pleased 
 to declare, that all treaties made before the establishment of the 
 national Constitution, or laws of any of the States, contrary to 
 a treaty, shall 'be disregarded." 
 
 In Fairfax v. Hunter, 8 Chirac v. Chirac, 9 Hauenstein v. Lyn- 
 ham, 10 and other cases, the doctrine declared in Ware v. Hylton 
 was approved and applied. 
 
 The attempt has been made to detract from the force of Chase's 
 doctrine as declared in AVare v. Hylton, by emphasizing the fact 
 
 -^ ^V 
 
 ?3 Dali. 199; 1 L. ed. 568. 
 8 7 Cr. 603 ; 3 L. e J. 453. 
 92 Wh. 259; 4 L. ed. 234. 
 10100 U. S. 483; 25 L. ed. 628.
 
 CONSTITUTIONAL TlIEATY-MAKING POWER. 497 
 
 that in that case the treaty in question was one which had been 
 originally entered into under the Confederation, that is, at a 
 time when the States were severally sovereign, and that, there- 
 fore, it was a treaty to which the States may be said to have in- 
 dividually assented. There would not, however, seem to be much 
 force in this, for if, after the adoption of the Constitution, the 
 treaty in question could be considered in any way as still an in- 
 strument deriving its validity from the consent of the State, it 
 could have been abrogated by subsequent state action, but this, 
 of course, was expressly denied by the court in \Vare v. Hylton. 
 The truth is that the Constitution puts treaties, made and to be 
 made, upon exactly the same footing, and in the later cases which 
 are cited above, the doctrine of Ware v. Hylton is considered as 
 controlling with reference to treaties made after the adoption of 
 the Constitution. 
 
 It may, then, be considered as established that a treaty en- 
 tered into by the Federal Government with respect to a matter 
 within the federal jurisdiction is supreme over a conflicting state 
 law. This leads to the question whether, by an exercise of the 
 treaty-making power, the Federal Government may regulate mat- 
 te rs within the States which it may not control by act of Con- 
 gress, and if, in this respect, the treaty-making power is broader 
 than the legislative, in what respects, and to what extent, it is 
 broader. 
 
 213. Judicial Dicta that Reserved Rights of the States May 
 not Be Infringed. 
 
 Fpon this point the declarations of the Supreme Court are not 
 completely satisfactory. In various of its opinions this tribunal 
 has explicitly asserted that the rights reserved by the Constitution 
 from the control of the other departments of the Federal Govern- 
 ment may not be infringed by its treaty-making power. 
 
 In Prevost v. Greenaux 11 the court say : " That a treaty is no 
 more the supreme law of the land than is an act of Congress is 
 
 " 1!) Ilo\v. 1; 15 L. ed. 572. 
 32
 
 498 UNITED STATES CONSTITUTIONAL LAW. 
 
 shown by the fact that an act of Congress vacates pro ianto a prior 
 inconsistent treaty. Whenever, therefore, an act of Congress 
 would be unconstitutional, as invading the reserved rights of the 
 States, a treaty to the same effect would be unconstitutional." 
 
 In the License Cases 12 Justice Daniel, dissenting, declared: 
 " This provision of the" Constitution, it is to be feared, is some- 
 times applied or expounded without those qualifications which 
 the character of the parties to that instrument, and its adaptation 
 to the purposes for which it was created, necessarily imply. 
 Every power delegated to the 1 Federal Government must be ex- 
 pounded in coincidence with a perfect right in the States to all 
 that they have not delegated ; in coincidence, too, with the pos- 
 session of every power and right necessary for their existence and 
 preservation; for it is impossible to believe that these ever were 
 in intention or in fact, ceded to the General Government. Laws of 
 the United States, in- order to be binding, must be within the legiti- 
 mate powers vested by the Constitution. Treaties, to be valid, 
 must be made within- the scope of the same powers ; for there can 
 be no ' authority of the United States ' save what is derived medi- 
 ately or immediately, and regularly and legitimately, from the 
 Constitution. A treaty, no" more than an ordinary statute, can 
 arbitrarily cede away any one right of a State or of any citizen of 
 a State. In cases of alleged conflict between a law of a State and 
 the Constitution or a statute of the United States, this court must 
 pronounce upon the validity of either law with reference to the 
 Constitution; but whether the decision of the court in such cases 
 be itself binding or otherwise must depend upon its conformity 
 with, or its warrant from, the Constitution. ^It cannot be correctly 
 held, that a decision, merely because it be by the Supreme Court, 
 is to override alike the Constitution and the laws both of the 
 States and of the L T nited States." 
 
 And in a dissenting opinion in the Passenger Cases 13 Chief 
 Justice Taney with respect to the treaty power declared : " The 
 first inquiry is, whether, under the Constitution of the L T nitcd 
 States, the General Government has the power to compel the sev- 
 eral States to receive, and suffer to remain in association with its 
 
 125 How. 504; 12 L. ed. 2o6. 
 127 How. 283; 12 L. id. 71:1.
 
 CONSTITUTIONAL TREATY-MAKING POWER. 499 
 
 citizens, every person or class of persons whom it may be the 
 policy or pleasure of the United States to admit. In my judg- 
 ment, this question lies at the foundation of the controversy in 
 this case, I do not mean to say that the General Government 
 have, by treaty or act of Congress, required the State of Massa- 
 chusetts to permit the aliens in question to land. I think there is 
 no treaty or act of Congress which can justly be so construed. 
 But it is not necessary to examine that question until we have 
 first inquired whether Congress can lawfully exercise such a 
 power, and whether the States are bound to submit to it. For if 
 the people of the several States of this Union reserved to them- 
 selves the power of expelling from their borders any person, or 
 class of persons, whom it might deem dangerous to its peace, or 
 likely to prove a physical or moral evil among its citizens, then 
 any treaty or law of Congress invading this right, and authoriz- 
 ing the introduction of any person or description of persons 
 against the consent of the State, would be an usurpation of power 
 which this court could neither recognize nor enforce. I had sup- 
 posed this question not now open to dispute." 
 
 In addition to the foregoing assertions of incompetence of the 
 treaty-making power to invade the reserved rights of the States, 
 there are the dicta, earlier quoted, to the effect that this power, 
 though not in terms limited by the Constitution, is not competent 
 to change the general character of our government. If the treaty- 
 making power has not this power, then certainly the reserved 
 riahts of the States are not completely at its mercy. For to in- 
 vade radically the exclusive jurisdiction of the States would be, 
 in effect, to change the nature of our federal constitutional system. 
 
 214. Instances in Which Treaties Have Been Upheld though 
 
 Infringing Reserved Rights of the States. 
 
 Opposing, however, these dicta which have been quoted are a 
 line of cases, in which treaties have been held constitutional with 
 reference to matters which are -admittedly not within the power 
 of Congress to control. And, also, there have been numerous 
 cases in which state laws with reference to matters within the
 
 500 UXITED STATES CONSTITUTIONAL LAW. 
 
 ordinary legislative competence of the States, have been held void 
 because of conflict with subsisting federal treaties. 14 
 
 Thus, in the case of De Geofroy v. Eiggs, 15 to which reference 
 has already been made, it is declared: "That the treaty power 
 of the United States extends to all proper subjects of negotiation 
 between our government and the government of other nations, "is 
 clear. It is also clear that the protection which should be afforded 
 to the citizens of one country owning property in another, and 
 the" manner in which that property may be transferred, devised or 
 inherited, are fitting subjects for such negotiations and of regula- 
 tion by mutual stipulations betAveen the two countries. As com- 
 mercial intercourse increases between different countries the resi- 
 dence of citizens of o"ne country within the territory of the other 
 naturally follows, and the removal of their disability from alien- 
 age to hold, transfer and inherit property in such cases tends to 
 promote amicable relations. Such removal has been within the 
 present century the frequent subject of treaty arrangement. The 
 treaty power, as expressed in the Constitution, is in terms un- 
 limited except by those restraints which are found in that instru- 
 ment against the action of the government or of its department?., 
 and those arising Trom the nature of the government itself and 
 of that of the States. It would not be contended that it extends 
 so far as to authorize what the Constitution forbids, or a change 
 in the character of the government or in that of one of the States, 
 or a cession of any portion of the territory of the latter, without 
 its consent (Fort Leaven worth R. Co. v. Lowe, 114 U. S. 525 ; 
 5 Sup. Ct. Eep. 995; 29 L. ed. 264.) But with these exceptions, 
 it is not perceived that there is any limit to the questions which 
 can be adjusted touching any matter which is properly the subject 
 of negotiation with a foreign country." 
 
 Ware v. Hyltan, 3 Ball. 199; 1 L. ed. 563; Hopkirk v. Bell, 3 Cr. 454; 
 2 L. ed. 497 ; Fairfax v. Hunter, 7 Cr. 603 ; 3 L. ed. 453 ; Chirac v. Chirac, 
 2 Wheat. 259; 4 L. ed. 234; Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328; 
 Haucustein v. Lynham, 100 U. S. 483; 25 JL. ed. 628; De Geofroy v. Riggs, 
 133 U.'S. .258; 10 Sup. Ct. Eep. 295; 33 L. ed. 642. See also a strong 
 dictum in Ward v. Race Horse, 163 U. S. 504; 1C Sup. Ct. Rep. 1076; 
 41 L. ed. 244. 
 
 15 133 U. S. 258; 10 Sup. Ct. Rep.. 295; 33 L. ed. 642.
 
 CONSTITUTIONAL TlJEATY-MAKIXG POWEK. 
 
 In 1898 the President requested the official opinion of his 
 Attorney-General as to the power of the United States- to enter 
 into treaty stipulations with Great Britain for the regulation of 
 fisheries in the waters of the United States and Canada a4ong the 
 international boundary. In his opinion Mr. Griggs said: '' The 
 waters of the lake and rivers which form the boundary between 
 the United States and Canada are upon this side of the boundary 
 line within the territorial jurisdiction of the sereral riparian 
 States. The regulation of fisheries in navigable waters within 
 the territorial limits of the several States, in the absence of a 
 federal treaty, is a subject of state rather than of federal juris- 
 diction. Congress has the paramount right to regulate navigation 
 in the navigable waters of the United States for the benefit of 
 all the citizens of the Union, but Congress has no authority in 
 the absence of treaty regulations, to pass lawa to regulate or pro- 
 tect fisheries within the territorial jurisdiction of the States. 
 (McCready v. Virginia, 94 U. S. 391; 24 L. ed. 248; Lawton v. 
 Steele, 152 U. S. 133; 14 Sup. Ct. Rep. 499; 38 L. ed. 385.) 
 The question for consideration, therefore, is whether the United 
 States by treaty may deprive the riparian States of the power of 
 control and regulation over the fisheries in the waters within their 
 respective jurisdictions conterminal with the boundary between 
 the United States and Canada. It is obvious that if by the exer- 
 cise of the treaty-making power the regulation of this subject is 
 assumed by the Federal Government, the respective state govern- 
 ments will be deprived of jurisdiction over that subject in the 
 same waters. The regulation of fisheries has been recognized as 
 a proper subject for international agreement. . . . Where a 
 lake er river is divided into two jurisdictions by a boundary line 
 between two nations, it is manifest that it would be not only con- 
 venient but almost necessary for the adequate regulation of the 
 subject that an agreement by treaty or other stipulation should 
 exist between the governments of the two countries, in order to 
 make any system of regulation and protection effective. The 
 several States are by the Constitution forbidden to enter into any 
 such treaty or regulation with any foreign power, and unless the
 
 502 UNITED STATES CONSTITUTIONAL LAW. 
 
 United States may regulate the subject by treaty it is impossible 
 of regulation by uniform and reciprocal rules. I advise you, 
 therefore, that the regulation of the fisheries in these boundary 
 waters is a proper subject of the treaty-making power vested by 
 the Constitution in the President If it be suggested that such 
 a treaty is beyond the constitutional power of the President and 
 the Senate to effect, because it deprives the States of jurisdiction 
 and authority now vested in them, and practically would annul 
 their laws and destroy one subject of state sovereignty, without 
 going into a history of that clause of the Constitution above 
 quoted, which declares that all treaties made or which shall be 
 made by the authority of the United States shall be the supreme 
 law of the land (the discussions of which in the Constitutional 
 Convention and in the state conventions called for the adoption 
 of the Constitution were very extensive and interesting), it is 
 sufficient to say that it has been held by the Supreme Court of 
 the United States that it is no objection to the validity of a treaty 
 that it establishes within state jurisdiction a different law and 
 standard of rights from that established by the laws of the State." 
 In a number of instances, as said, state laws, with reference 
 to matters ordinarily within state cognizance, have been held 
 void when in conflict with existing federal treaties. Examples 
 of this, are laws denying the right of the alien to be employed 
 by contractors upon public works, or to be employed by private 
 corporations. 16 
 
 215. The True Doctrine. 
 
 How, now, are we to harmonize these declarations that the re- 
 served rights of the States may not be infringed by the treaty- 
 making power with the fact that, in specific instances, the invasion 
 of these rights has been upheld ? 
 
 Essentially speaking, the two positions, thus absolutely stated, 
 cannot be harmonized. There is no principle that can be stated 
 
 is Baker v. Portland, 5 Sawyer, 566 ; In re Tiburcio, 6 Sawyer, 349 ; In re 
 Ah Chong, 6 Sawyer, 451. Cf. Proceedings of the American Soc. of Int. Law, 
 1907, Address by Prof. G. N. Gregory.
 
 CONSTITUTIONAL TREATY-MAKING POWER. 503 
 
 which will bring the dicta quoted into consonance with the de- 
 cisions referred to. Either the dicta denying to the treaty-making 
 power the right to infringe State rights are wrong, and must be 
 abandoned, or the decisions upholding such infringement were 
 improper, and will not be followed in the future. 
 
 The author is convinced that the obiter doctrine that the 
 reserved rights of the 'States may never be infringed upon by the 
 treaty-making power will sooner or later be frankly repudiated 
 by the Supreme Court. In its place will be definitely stated the 
 doctrine that in all that properly relates to matters of interna- 
 tional rights and obligations, whether these rights and obligations 
 rest upon the general principles of international law or have been 
 conventionally created by specific treaties, the United States 
 possesses all the powers of a constitutionally centralized sovereign 
 State; and, therefore, that when the necessity from the inter- 
 national standpoint arises the treaty power may be exercised, 
 even though thereby the rights ordinarily reserved to the States 
 are invaded. 
 
 The writer is led to the belief that this will be the position 
 finally and affirmatively taken by our judiciary from a review of 
 the manner in which, in the past, in every instance in which it 
 has been necessary to endow the Federal Government with a power 
 in order that its national supremacy, and its administrative effi- 
 ciency, might be preserved, the Supreme Court of the United 
 States has found the means to do so. 17 
 
 216. Constitutional Limits to the Treaty-Making Power. 
 
 Assuming, then, that the reasoning which has gone before is 
 correct, it may be asked: Are we led to the conclusion that, in 
 extent, the treaty-making power is without constitutional limits, 
 and may it be predicted that in no conceived case will the Su- 
 preme Court hold void of legal force a treaty duly entered into 
 by the treaty-making power? This question may be answered in 
 
 l" A more detailed statement of this argument is given in Chapter LXIV of 
 this work, in the section entitled " The Collusiveness of Administrative 
 Determinations."
 
 50-i UXITED STATES CONSTITUTIONAL LAW. 
 
 the negative. As pointed out at the beginning of this chapter, there 
 undoubtedly are limits to the extent of the treaty-making power 
 which the Supreme Court may be expected to recognize and apply. 
 It is true that all of the dicta that were quoted are obiter in that 
 in no instance were they applied to hold a treaty provision void ; 
 yet, when we find the statement so positively asserted, and so 
 many times repeated, we may, I think, take it as established. 
 
 If, however, as we have seen, individual rights and the reserved 
 powers of the States may, upon occasion, be sacrificed to the 
 treaty-making power, under what circumstances, and according 
 to what principle, may we expect these limitations to be imposed ? 
 Briefly stated, the answer is that these limitations are to be found 
 in the very nature of treaties. That is, that the treaty-making 
 power may not be used to secure a regulation or control of a mat- 
 ter not .properly and fairly a matter of international concern. It 
 cannot be employed with reference to a matter not legitimately 
 a subject for international agreement, any more than can the 
 States under the claim of an exercise of their police powers regu- 
 late a matter not fairly comprehended within the field of police 
 regulation. Thus, while it might be appropriate for the United 
 States, by treaty with England, to provide that English citizens 
 living in the United States- should have certain rights of property, 
 or schooling privileges, etc., within the States, state law to the 
 contrary notwithstanding, it would not be appropriate, and, there- 
 fore, would not be constitutional, for the United States by such 
 a treaty to provide that all aliens, whether British subjects or not, 
 should enjoy these rights within the States in which they might- 
 live. So likewise, it would not be a proper or constitutional exer- 
 cise of the treaty-making power to provide that Congress should 
 have a general legislative authority over a subject which has not 
 been given it by the Constitution ; or that a power now exercised 
 by one of the departments of the General Government should be 
 exercised by another department. For there are matters of do- 
 mestic national law with which foreign power has no concern. 
 In short, the treaty-making power is to be exercised with constitu- 
 tional bona fides.
 
 CO.XSTITUTIOXAL TIII;ATV-^[AKI.\G POWEB. 505 
 
 The principle which has been stated, that, to be constitutionally 
 valid, a treaty must have reference to a subject properly a matter 
 for international agreement, excludes from the federal treaty- 
 making power the authority to disregard those prohibitions of the 
 Constitution, express and implied, which are directed not to Con- 
 gress but to the National Government as a whole. 
 
 i t is scarcely to be conceived that the treaty-making power will 
 ever make the attempt, but should it seek to override these pro- 
 hibitions, or to alter the distribution of powers provided for in 
 the Constitution, or in any way to 'change the general character 
 of the governmental polity by that instrument created, it may be 
 expected that the judiciary will interpose its veto. The treaty- 
 making power in all its fulness is granted that the Xationai Gov- 
 ernment may be preserved, that it may be efficient for the pur- 
 poses for which it is created, not that it may be destroyed or 
 changed in essential character. 
 
 It is a principle of international law that treaties between 
 nations should be executed with uberrima fides. Undoubtedly, 
 however, our courts, in construing a treaty which infringes upon 
 the ordinary reserved rights of the States, will, when possible, so 
 interpret it as to minimize so far as possible the extent of this 
 infringement. And, undoubtedly, the treaty-making power itself 
 will, when possible, refrain from entering upon treaties which 
 will trench upon the States' reserved .powers, and will, in the 
 future, take extreme .pains so to word international agreements as 
 to render impossible an interpretation by the other signatory 
 parties which will give to them this effect. This caution the 
 recent Japanese school question in California will suggest. But 
 in any case, the Supreme Court will be exceedingly loth to deny 
 1- ual validity to a treaty provision. For it does not need to be 
 rved that, though by holding a treaty provision unconstitu- 
 tional that provision is denied legal validity in this country, the 
 Unite' 1 . States is not thereby released from its obligation under 
 it to the other signatory powers, and the result is, necessarily, a 
 breach of our covenant with those powers. The same, of course, 
 would be true should Congress refuse to pass the legislation neces-
 
 506 UNITED STATES CONSTITUTIONAL LAW. 
 
 sary for putting a treaty into full force and effect, unless, indeed, 
 as is sometimes done, it were provided in the treaty itself that it 
 was not to go into effect unless, and until, the necessary legislative 
 assistance was obtained. 18 
 
 217. Legislative Powers Ancillary to Treaty-Making Powers. 
 
 One final .point with reference to the extent of the treaty-making 
 power deserves notice. This is that where, for its enforcement, a 
 
 is Mr. Butler, in his Treaty-Making Power of the United States, 3, gives 
 the following summary of his conclusions regarding the extent of the treaty- 
 making power in the United States: "First: That the treaty-making power 
 of the United States, as vested in the Central Government, is derived not 
 only from the powers expressly conferred by the Constitution, but that it is 
 also possessed by that Government as an attribute of sovereignty, and that 
 it extends to every subject which can be the basis of negotiation and contract 
 between any of the sovereign powers of the world, or in regard to which the 
 several States ef the Union themselves could have negotiated and contracted 
 if the Constitution had not expressly prohibited the States from exercising 
 the treaty-making power in any manner whatever and vested that power 
 exclusively in, and expressly delegated it to, the Federal Government. Second: 
 That this power exists in, and can be exercised by, the National Government, 
 whenever foreign relations of any kind are established with any other sovereign 
 power, in regulating by treaty the use of property belonging to States or 
 citizens thereof, such as canals, railroads, fisheries, public lands, mining 
 claims, etc. ; in regulating the descent or possession of property within the 
 otherwise exclusive jurisdiction of States; in surrendering citizens and inhab- 
 itants of States to foreign powers for punishment of crimes committed out- 
 side of the jurisdiction of the United States or of any State or territory 
 thereof; in fact, that the power of the United States to enter into treaty 
 stipulations in regard to all matters, which can properly be the subject of 
 negotiation between sovereign States, is practically unlimited, and that in no 
 case is the sanction, aid or consent of any State necessary to validate the 
 treaty or to enforce its provisions. Third: That the power to legislate in 
 regard to all matters affected by treaty stipulations and relations is co-exten- 
 sive with the treaty-making power, and that acts of Congress enforcing such 
 stipulations which, in the absence of treaty stipulations, would be unconstitu- 
 tional as infringing upon the powers reserved to the States, are constitutional, 
 and can be enforced, even though they may conflict with state laws or pro 
 visions of state constitutions. Fourth: That all provisions in state statutes 
 or constitutions which in any way conflict with any treaty stipulations, 
 whether they have been made prior or subsequent thereto, must give way to 
 the provisions of the treaty, or act of Congress basad on and enforcing the 
 same, even if such provisions relate to matters wholly within state juris- 
 diction."
 
 CONSTITUTIONAL TREATY-MAKING POWER. 507 
 
 treaty requires ancillary legislation, Congress would seem to have 
 the constitutional power to enact the needed laws, even though 
 these may relate to matters not within the general sphere of its 
 legislative authority. For it is to be presumed that the General 
 Government has the power to render effective a treaty which it 
 has the constitutional power to enter into. A somewhat analogous 
 case is the legislative power recognized to belong to Congress with 
 reference to matters of admiralty and marine, because of the grant 
 to the Federal Judiciary of jurisdiction over admiralty and mari- 
 time causes. 
 
 218. The Treaty-Making Power May not " Incorporate " For- 
 eign Territory into the United States. 
 
 As we have already learned from our examination of the insu- 
 lar case of Downes v. Bidwell, 19 the treaty-making power is, ac- 
 cording to that decision, without the power to incorporate into 
 the United States territory acquired from a foreign power. For 
 this the consent of Congress is required. Four of the five majority 
 justices in this case,' it will be remembered, held to a distinction 
 between incorporated and unincorporated territory. The fifth 
 justice (Mr. Brown) held that in no case are Territories parts 
 of the United States in the strict constitutional sense; and that, 
 therefore, they are not entitled to all the constitutional guarantees 
 until, by statute, the Constitution has been extended over them, 
 or until they have been admitted into the Union as States. 20 
 
 219. The Treaty-Making Power May Alienate Territory of the 
 United States or of a State or States. 
 
 In several treaties in settlement of boundary disputes areas 
 previously claimed by the United States as its own have been 
 surrendered to foreign powers. These, however, can scarcely be 
 considered as instances of the alienation of portions of its own 
 territory, for the fact that the treaties were assented to by the 
 
 United States is in itself evidence that it was conceded that the 
 
 \ __ 
 
 19 182 U. S. 244; 21 Sup. Ct. Hep. 770; 45 L. eel. 1088. 
 
 20 See ante, Chapter XXX.
 
 508 UNITED STATES CONSTITUTIONAL LAW. 
 
 claim that the areas in question belonged to the United States 
 was unfounded. There has been no instance in which territory, 
 indisputably belonging to the United States, has been alienated 
 to another power. Whether or not the power to do so, should the 
 occasion arise, exists, has been often discussed, and,* in fact, we 
 have a number of obiter statements upon the point from the 
 Supreme Court 
 
 In De Geofroy v. Riggs 21 Justice Field, in his enumeration of 
 the limitations upon the treaty-making power, includes its ina- 
 bility to cede any portion of a State without its consent. In sup- 
 port of this declaration reference is made to the case of Fort 
 Leavenworth R. R. Co. v. Lowe. 22 That case decided, simply, 
 that the legislative power of Congress is exclusive over lands 
 within a State purchased with its consent by the United States 
 for a constitutional purpose; and that a State has the constitu- 
 tional powder thus to cede portions of its territory to the General 
 Government. The court in its opinion, however, goes on to say 
 that " it is undoubtedly true that the State, whether represented 
 by her legislature, or through a convention specially called for 
 that purpose, is incompetent to cede her political jurisdiction and 
 legislative authority over any part of her territory to a foreign 
 country, without the concurrence of the General Government.'' 
 As to the truth of this obiter statement, there can, of course, be 
 no question, for, as we have already learned, the State cannot, 
 constitutionally, have any international dealings. 23 
 
 But the court go on to say: " The jurisdiction of the L'nited 
 States extends over all the territory within the States, and, there- 
 fore, their authority must be obtained, as well as that of the State 
 within which the territory is situated, before any cession of sover- 
 eignty or political jurisdiction can be made to a foreign country/' 
 
 In support of this statement the court refers to the adjustment 
 of the northeastern boundary dispute in 1842 with Great Britain, 
 
 21 133 U. S. 258; 10 Sup. Ct. Rep. 293: 33 L. ed. 642. 
 22114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264. 
 
 23 Except, possibly, as we have seen (Chapter XV), with reference to suoli 
 an unimportant matter as the administration of fishing upon boundary waters.
 
 COXSTITUTIOXAL TlJKATY- BAKING POWER. 
 
 in which the United States before coming to an agreement with 
 Great Britain, obtained the co-operation and concurrence of Maine 
 and Massachusetts. Maine appointed commissioners by her legis- 
 lature, and Massachusetts by her Governor under authority of an 
 act of her legislature, to act with the Secretary of State of the 
 United States in the matter. 
 
 This co-operation of the authorities of Maine and Massachusetts 
 was at the suggestion of Webster, then Secretary of State, but it 
 does not appear from his correspondence that he considered this 
 a constitutional necessity, but rather that it was expedient from 
 a political standpoint that the opinion of these two States should 
 be considered. 24 Thus, writing privately to the Governor of 
 Maine, December 21, 1841, Webster says: " In the present posi- 
 tion of affairs, I suppose it will not be prudent to stir in the 
 direction of a compromise without the consent of Maine."- 25 
 
 Besides the assertions of the Supreme Court in De Geofroy v. 
 Riggs and Fort Leavenworth R. R, Co. v. Lowe, we have the argu- 
 ment of Justice White in Downes v Bidwell, 20 that the United 
 States is without the treaty-right to sell or trade away any por- 
 tion of territory, whether within a State or a Territory, which 
 has been " incorporated " into the United States. " In conform- 
 ity to the principle which I have admitted," he says, " it is im- 
 possible for me to say at one and the same time that territory is 
 an integral part of the United States protected by the Constitu- 
 tion, and yet the safeguards, privileges, rights, and immunities 
 which arise from this situation are so ephemeral in their character 
 that by a mere act of sale they may be destroyed. And applying 
 this reasoning to the provisions of the treaty under consideration, 
 to me it seems indubitable that if the treaty with Spain incor- 
 porated all the territory ceded into the United States, it resulted 
 that the millions of people to whom that treaty related were, with- 
 out the consent of the American people as expressed by Congress, 
 
 24 -See Works of Wclstcr, V, 98; VI, 272. 
 
 -" Van Tyne's Letters of Webster, 248; quoted in Moore, Digest of Int. I 
 V. 174. 
 
 2c Concurred in by Justices Shiras, McKenna and Gray.
 
 510 UNITED STATES CONSTITUTIONAL LAW. 
 
 and without any hope of relief, indissolubly made a- part of our 
 common country." 
 
 Later on in his opinion Justice White is, however, forced to 
 say : " True, from the exigency of a calamitous war or the neces- 
 sity of a settlement of boundaries, it may be that citizens of the 
 United States may be expatriated by the action of the treaty- 
 making power, impliedly or expressly ratified by Congress. But 
 the arising of these particular conditions cannot justify the gen- 
 eral proposition that territory which is an integral part of the 
 United States may, as a mere act of sale, be disposed of." 
 . In fact, however, as we know, Justice White held that territory 
 might be annexed by treaty without " incorporation " into the 
 United States, and such unincorporated territory concededly 
 might, by treaty be sold or traded away. 27 
 
 Opposing these judicial obiter dicta are the decisions of the 
 Supreme Court in L at timer v. Poteet 28 and the opinions of such 
 commentators as Kent, Story and Butler. 
 
 In Lattimer v. Poteet the Supreme Court upheld a treaty of 
 the United States with an Indian tribe whereby was ceded to the 
 Indians an area claimed by a State as its own. " It is argued," 
 said the court in its opinion, " that it was not in the power of 
 the United States and the Cherokee Xation, by the Treaty of 
 Tellico in 179>8, to vary in any degree the treaty line of Holston 
 so as to affect private rights or the rights of jSTorth Carolina. 
 . . . It is a sound principle of international law, and applies to 
 the treaty-making power of this government, whether exercised 
 with a foreign nation or an Indian tribe, that all questions of 
 disputed boundaries may be settled by the parties to the treaty. 
 And to the exercise of these high functions by the government, 
 
 27 It will be observed that Justice White's denial to the treaty power of the 
 right to alienate incorporated territory, save as necessitated by a disastrous 
 war, is not predicated upon the federal character of the United States, that 
 is, upon a doctrine of reserved rights of the States, but upon the general 
 constitutional character of the Federal Government as one deriving its power 
 by grant from its citizens. Cf. American Law Register, February, 1907, p. 83, 
 note. 
 
 2814 Pet. 4; 10 L. ed. 328.
 
 CONSTITUTIONAL TREATY-MAKING POWER. 511 
 
 within its constitutional power, neither the rights of a State nor 
 those of an individual can be interposed." 
 
 Kent in his Commentaries says: " The better opinion would 
 seem to be, that such a power of cession of the territory of a State 
 without its consent does reside exclusively in the treaty-making 
 power, under the Constitution of the United States, yet sound 
 discretion would forbid the exercise of it without the consent of 
 the local government who are interested, except in cases of great 
 necessity, in which the consent might be presumed." ** 
 
 " On April 1-i, 1838, Edward Everett, who was then governor 
 of Massachusetts, confidentially asked the opinion of Mr. Justice 
 Story concerning a resolution of the Massachusetts legislature, 
 which had been presented to him for his signature, in which it 
 was declared that no power delegated by the Constitution to the* 
 United States authorized the government to cede to a foreign 
 nation any territory lying within the limits of a State of the 
 Union. Mr. Everett called attention to the faot that in section 1502 
 of Story's Commentaries on the Constitution, in which certain 
 restrictions on the treaty-making power were named, that of ced- 
 ing a part of a State was not mentioned, but that the remark was 
 added, ' Whether there are any other restrictions necessarily 
 growing out of the structure of the government will remain to be 
 considered whenever the exigency shall arise.' Mr. Everett fur- 
 ther observed that the restriction in question, if it existed, must 
 be one of this character, bjat that the pending controversy did not 
 appear to him to create such an exigency, since it was a question 
 not of ceding an admitted part of the territory of Maine, but of 
 ascertaining the boundary between British and American terri- 
 tory. Mr. Justice Story, on the 17th of April, replied that ho 
 could not admit it to be universally true that the Constitution of 
 the United States did not authorize the government to cede to a 
 ' foreign nation territory within the limits of a State, since such 
 a cession might, for example, be indispensable to purchase peace, 
 or might be of a nature calculated for the safety of both nations 
 or be an equivalent for a like cession on the other side. The 
 
 291, 1C7, note b.
 
 512 UNITED STATES CONSTITUTIONAL LAW. 
 
 learned justice added that be liad some years previously had a 
 conversation on the subject with Chief Justice Marshall. ' lie 
 was/ said Mr. Justice Story, ' unequivocally of opinion, that the 
 treaty-making power did extend to cases of cession of teriitory, 
 though he would not undertake to say that it could extend to all 
 cases; yet he did not doubt it must be construed to extend to 
 some.' " 30 
 
 Mr. Butler's views as to the constitutional effect of the treaty- 
 making power have already been quoted in this chapter. They 
 grant to the Federal Government full power to alienate without 
 the consent of a State, any portion or all of its territory. On 
 page 394 of nis second volume, Mr. Butler, after referring to the 
 settlement of the northeastern boundary, says: "If it he said 
 only a part of a State was involved in that case, and that although 
 the power might possibly be exercised as to a part of a State, an 
 entire State could not have been ceded away, the answer can only 
 be that if the salvation of every other State in the Union depended 
 upon the boundary line being so fixed that an entire State should 
 be included in British possessions, and in default thereof the 
 Union might have been plunged into a war resulting in its de- 
 struction, undoubtedly the treaty-making power in the Central 
 Government would have been able to accomplish that result, and 
 it might have been just as necessary to exercise it, as at times it 
 has been necessary to amputate a limb in order to save the life 
 itself; in such extreme cases (and it is to be hoped they will never 
 occur) the full extent of the power would have to be exercised 
 regretfully indeed but nevertheless effectually." 
 
 In accordance with the principles already laid down in this 
 chapter, the author of this treatise is of the opinion that the 
 United States has, through its treaty-making organ, the constitu- 
 tional power, in cases of necessity, to alienate a portion of, or the 
 entire territory of a State or States. The same reasoning which 
 supports the power of the United States, as a sovereign power 
 in international relations, to annex territories, is sufficient to sus- 
 
 30 Story, Life of Joseph Story, II, 286-280. Quoted by Moore, International 
 Laic Digest, V, 172.
 
 COXSTITTTIOKAI. TiJKATY-M A KI .\Ci PoWKR. 513 
 
 tain its power to part with them, even should the area so parted 
 with be a part of one of the States or include one or more of 
 them. 
 
 Should territory be alienated to a foreign power, it would seem 
 that this would have to be done by treaty. Should, however, the 
 alienation be by the way of granting independence to a particular 
 territory, as, for example, Porto Rico or the Philippine Islands, 
 this could be done by joint resolution. Should the people of a 
 territory revolt against the United States control, establish a de 
 facto government, and realize in fact their independence, this inde- 
 pendence might be recognized by a treaty. But in such case the 
 treaty would recognize a fait accompli, rather than bring it about. 
 
 220. The Violation of Treaties. 
 
 Treaties entered into by the United States may be viewed in 
 two lights; (1) as constituting parts of the supreme law of the 
 land, and (2) as compacts between the United States and foreign 
 Powers. Viewed in this second light this infraction is a matter 
 outside judicial cognizance, and within the exclusive concern of 
 the political departments. 
 
 In Taylor v. Morton, 31 approved by the Supreme Court, 32 Jus- 
 tice Curtis says : " Is it a judicial question, whether a treaty 
 with a foreign sovereign has been violated by him; whether the 
 consideration of a particular stipulation in a treaty has been 
 voluntarily withdrawn by one party, so that it is no longer obliga- 
 tory on the other; whether the view and acts of a foreign sover- 
 eign, manifested through his representative, has given just occa- 
 si'.n to the political departments of our government to withhold 
 the execution of a promise contained in a treaty or to the act in 
 direct contravention of such promise? I apprehend not. These 
 powers have not been confided by the people to the judiciary, 
 which has no suitable means to exercise them, but to the execu- 
 tive and legislative departments of our government. ' 
 
 si 2 Curtis, 4.34. 
 
 322 Black, 481; 17 L. ed. 277. 
 
 33
 
 514 UNITED STATES CONSTITUTIONAL LAW. 
 
 The rule thus laid down in Taylor v. Morton has been uni- 
 formly followed in subsequent cases. In Head Money Cases, 33 
 the court say: "A treaty is primarily a compact between inde- 
 pendent nations. It depends for the enforcement of its provisions 
 on the interest and the honor of the governments which are parties 
 to it. If these fail, its infraction becomes the subject of inter- 
 national negotiations and reclamations, so far as the injured party 
 chooses to seek redress, which may in the end be enforced by 
 actual war. It is obvious that with all this the judicial courts 
 have nothing to do, and can give no redress. But a treaty may 
 also contain provisions which confer certain rights upon the citi- 
 zens or subjects of one of the nations residing in the territorial 
 limits of the other, which partake of the nature of municipal law, 
 and which are capable of enforcement as between private parties. 
 in the courts of the country. An illustration of this character is 
 found in treaties which regulate the mutual rights of citizens and 
 subjects of the contracting nations in regard to rights of property 
 by descent or inheritance, when the individuals concerned are 
 aliens." 
 
 Again, in Whitney v. Robertson, 34 the opinion declares : "A 
 treaty is primarily a contract between two or more independent 
 nations, and is so regarded by writers on public law. For the 
 infraction of its provisions a remedy must be sought by the in- 
 jured party through reclamations upon the other. When the 
 stipulations are not self-executing, they can only be enforced pur- 
 suant to legislation to carry them into effect, and such legislation 
 is as much subject to modification and repeal by Congress as legis- 
 lation upon any other subject. If the treaty contains stipulations- 
 which are self-executing, that is, require no legislation to make 
 them operative, to that extent they have the force and effect of a 
 legislative enactment. Congress may modify such provisions, so 
 far as they bind the United States, or supersede them altogether. 
 By the Constitution a treaty is placed on the same footing and 
 made of like obligation with an act of legislation. Both are de- 
 
 33112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798. 
 34 124 U. S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 386.
 
 CONSTITUTIONAL TREATY-MAKING POWER. 515 
 
 clared by that instrument to be the supreme law of the land, and 
 no superior efficacy is given to either power over the other. When 
 the two relate to the same subject, the courts will always endeavor 
 to construe them so as to give effect to both, if that can be done 
 without violating the language of either ; but if the two are incon- 
 sistent, the one last in date will control the other, provided always 
 the stipulation of the treaty on the subject is self-executing. If 
 the country with which the treaty is made is dissatisfied with the 
 action of the legislative department, it may present its complaint 
 to the executive head of the government, and take such other 
 measures as it may deem essential for the protection of its inter- 
 ests. The courts can afford no redress. Whether the complaining 
 nation has just cause of complaint, or our country was justified in 
 its legislation, are not matters for judicial cognizance." 
 
 221. Treaties Remain Internationally Binding upon the United 
 States even when Congress has Refused the Legislation 
 Necessary to put Them into full Force and Effect, or 
 when it Has Abrogated Them by Subsequent Legisla- 
 tion, or when the Supreme Court Has Declared them 
 Unconstitutional. 
 
 It is a principle of international law that one Nation in its 
 dealings with another Xation is not required to know, and, there- 
 fore, is not held to be bound by, the peculiar constitutional struc- 
 ture of that other Xation. It is required, indeed, to know what 
 is the governmental organ through which treaties are to be rati- 
 fied. But further than this it need not examine, for each State 
 is conclusively presumed to be able to carry into full force and 
 effect any international engagement which it, through its treaty- 
 making power, may enter upon. 
 
 In Dana's edition of Wheaton's International Law, it is de- 
 clared : " If a treaty requires the payment of money, or any 
 other special act, which cannot be done without legislation, the 
 treaty is still binding on the nation; and it is the duty of the 
 nation to pass the necessary laws. If that duty is not performed, 
 the result is a breach of the treaty by the nation, just as much
 
 516 UXITED STATES CONSTITUTIONAL LAW. 
 
 as if the breach had been an affirmative act by any other depart- 
 ment of the Government. Each nation is responsible for the 
 right working of the internal system, by which it distributes its 
 sovereign fnnetions; and r as foreign nations dealing with it can- 
 not be permitted to interfere with or control these, so they are not 
 to be affected or concluded by them to their own injury." 35 
 
 This principle the United States has not hesitated upon occasion 
 to assert, ilr. Elaine, when Secretary of State, wrote to our 
 minister to Hawaii, in 18S1, with reference to a treaty which that 
 country had concluded with the United States, as follows: "I 
 am not aware whether or not a treaty, according to the Hawaiian 
 constitution is, as with us, a supreme law of the land, upon the 
 construction of which the proper case occurring every citi- 
 zen would hare the right to the judgment of the courts. But, even 
 if it be so, and if the judicial department is entirely independent 
 of the executive authority of the Hawaiian government, then the 
 decision of the court would be the authorized interpretation of 
 the Hawaiian government, and however binding upon that gov- 
 ernment would be none the less a violation of the treaty. In the 
 event, therefore, that a judicial construction of the treaty should 
 annul the privileges stipulated, and be carried into practical execu- 
 tion, this government would have no alternative and would be 
 compelled to consider such action as the violation by the Hawaiian 
 government of the express terms and conditions of the treaty, and, 
 with whatever regret, would be forced to consider what coarse in 
 reference to its own interests had become necessary upon the 
 manifestation of such unfriendly feeling." 
 
 And in 1835 with reference to the refusal of the French Cham- 
 ber of Deputies to make an appropriation called for by a treaty 
 concluded between France and this country, ]\Ir. AYheaton wrote: 
 " X either government [France nor the United States] has any- 
 thing to do with the auxiliary legislative measures necessary, on 
 the part of the other State, to give effect to the treaty. The 
 nation is responsible to the government of the other nation fur 
 
 Dana's Wheaton, 543, note 250, citing 1 Kent, 165-6; Heffter, 84; 
 Vattel, lib. IV.. c. 2, 14: Hal leek, 854.
 
 CONSTITUTIONAL TKEATY-MAKI.\<; I'^WEB. 017 
 
 its non-execution, -whether the failure to fulfil it proceeds from 
 the omission of one or other of the departments of its government 
 to perform its duty in respect to it. The omission here is on the 
 part of the legislature ; but it might have been on the part of the 
 judicial department the court of cassation might have refused 
 to render some judgment necessary to give effect to the -treaty. 
 The King cannot compel the Chambers, neither can he compel Ac 
 courts; but the nation is none the less responsible for the breach 
 of faith thus arising out of the discordant action of the internal 
 machinery of its constitution." 36 
 
 222. The Date at Which Treaties Go into Effect. 
 
 In Haver v. Yaker 37 Justice Davis speaking with reference to 
 the date at which a treaty goes into effect, says: " It is undoubt- 
 edly true as a principle of international law, that, as respects 
 the rights of either government under it, a treaty is considered as 
 concluded and binding from the date of its signature. In this re- 
 gard the exchange of ratifications has a retroactive effect, confirm- 
 ing the treaty from its date, (Wheat. Int. Law, by Dana, 336.) 
 But a different rule prevails where the treaty operates on indi- 
 vidual rights. The principle of relation does not apply to right* 
 cf this character, which were vested before the treaty irms ratified. 
 In so far as it affects them, it is not considered as concluded until 
 there is an exchange of ratifications, and this we nnderstand to 
 Lave been decided by this court, in Arredondo's ease, reported 
 in 6 Peters, The reason of the rule is apparent In this conntry, 
 a treaty is something more than a contract, for the federal Coaa- 
 stitution declares it to be the iaw of the land. If so, before it 
 can become a law. the Senate, in whom rests the authority to 
 ra'ify it, must agree to it. But the Senate are not required to 
 adopt or reject it as a whole, but may modify or amend it, as was 
 d>ne with the Treaty under consideration. As the individual 
 
 sMr. Wheaton, Minister at Copenhagen, to Mr. Butler, Attorney-General, 
 January 20. 1835. adopted in Lawrence's Wheatnn (1863), 450: and quoted 
 al< with approval in Meier, Abschluss von Staatsrcrtrfigcn, Leipzig, 1, 1874, 
 p. 168. See Moore's nifjrst of Int. Laic, V, 231. 
 
 379 Wall. 32; 19 L. ed. 571.
 
 518 UNITED STATES CONSTITUTIONAL LAW. 
 
 citizen, on whose rights of property it operates, has no means of 
 knowing anything of it while before the Senate, it would be 
 wrong in principle to hold him bound by it, as the law of the land, 
 until it was ratified and proclaimed. And to construe the law, 
 so as to make the ratification of the treaty relate back to its sign- 
 ing, thereby divesting a title already vested, would be manifestly 
 unjust, and cannot be sanctioned." 
 
 223. The Denunciation of Treaties. 
 
 Though the Senate participates in the ratification of treaties, 
 the President has the authority, without asking for senatorial 
 advice and consent, to denounce an existing treaty and to declare 
 it no longer binding upon the United States. In important cases, 
 however, he would undoubtedly seek senatorial approval before 
 taking action. But whether or not this approval be sought,, the 
 courts hold themselves bound by the denunciation, the existence 
 or non-existence of a treaty being a political question the decision 
 upon which by the political departments of the government is 
 binding upon the judicial departments. 38 
 
 224. The Construction of Treaties. 
 
 As to public rights the courts hold themselves bound by the 
 construction given to treaties by the political departments. As 
 to private rights, however, arising under treaties in force, and 
 even as to public rights when these are inseparable from private 
 rights, the courts exercise independent judgment as to the mean- 
 ing to be given to treaty provisions. 39 
 
 38 See Chapter LI, and especially the case of Terlinden v. Ames, 184 U. S. 
 270; 22 Sup. Ct. Rep. 484; 46 L. ed. 534. 
 
 39 See Chapter LI,
 
 CHAPTER XXXVI. 
 
 THE AMENDMENT OF THE FEDERAL CONSTITUTION. 
 225. The Amending Clause. 
 
 The amendment of the federal Constitution, while politically 
 a subject of great importance, has given rise to few legal adjudi- 
 cations. 
 
 Article V of the Constitution provides : " The Congress, when- 
 ever two-thirds of both Houses shall deem it necessary, shall pro- 
 pose amendments to this Constitution, or, on the application of 
 the legislatures of two-thirds of the several States, shall call a 
 convention for proposing amendments, which, in either case, shall 
 be valid to all intents and purposes as parts of this Constitution, 
 when ratitied by the legislatures of three-fourths of the several 
 States, or by conventions in three-fourths thereof, as the one or 
 the other mode of ratification may be proposed by the Congress; 
 Provided that no amendment which may be made prior to the 
 year one thousand eight hundred and eight shall in any manner 
 affect the first and fourth clauses in the ninth section of the first 
 article; 1 and that no State, without its consent, shall be deprived 
 of its equal suffrage in the Senate." 
 
 It will be seen that two methods for proposing, as well as 
 two methods for ratifying proposed amendments are provided. 
 In practice, however, the fifteen amendments which have been 
 added to the Constitution as originally adopted have all been 
 proposed by Congress and that body has in each instance provided 
 for ratification by the state legislatures. 
 
 i Art. I, Sec. 9, Cl. 1 : " The migration or importation of such persona 
 as any of the States now existing shall think proper to admit, shall not be 
 prohibited by the Congress prior to the year one thousand eight hundred and 
 eight, but a tax or duty may be imposed on such importation not exceeding 
 ten dollars for each person." 
 
 Art. I, Sec. 9, Cl. 4 : " No capitation, or other direct tax shall be laid, 
 unless in proportion to the census or enumeration hereinbefore directed to 
 be taken." 
 
 [519]
 
 520 UNITED STATES CONSTITUTIONAL LAW. 
 
 When proposing amendments it has been held that only two- 
 thirds of those present in the House of Congress and not two- 
 thirds of their entire membership is sufficient. 2 
 
 The requirement of a two-thirds vote applies only as to the 
 vote on the final passage of the proposal. Proposed amend- 
 ments, it has therefore been held, may be amended by a majority 
 vote, but two-thirds are required when one House is voting finally 
 to concur as to proposals of the other House. 3 
 
 226. Presidential Approval not Required. 
 
 The President's approval of a proposed amendment is not re- 
 quired. In Hollingsworth v. Virginia 4 the court without argu- 
 ment say : " The negative of the President applies only to the 
 ordinary cases of legislation; he has nothing to do with the propo- 
 sition or adoption of amendments to the constitution." 
 
 In 1865 a proposed amendment having been inadvertently sent 
 to the President for his approval, the Senate adopted the follow- 
 ing resolution : 
 
 2 The question having been raised by a member, Speaker Reed of the Hoase 
 said: 
 
 " The question is one that has been so often decided that it seems hardly 
 necessary to dwell upon it. The provision of the Constitution says " two- 
 thirds of the House." What constitutes a House? A quorum of the member- 
 ship, a majority, one-half and more. That is all that is necessary to con- 
 stitute a House to do all the business that comes before the House. Among 
 the business that comes before the House is the reconsideration of a bill that 
 has been vetoed by the President ; another is a proposed amendment to the 
 Constitution; and the practice is uniform in both cases that if a quorum of 
 the House is present the House is constituted and two-thirds of those voting 
 are sufficient in order to accomplish the object. It has nothing to do with 
 the question of what States are present and represented, or what States are 
 present and vote for it. It is the House of Representatives in this instnniv 
 that votes and performs its part of the function. If the Senate does the same 
 thing, then, the matter is submitted to the States directly, and they pass 
 upon it. 
 
 The first Congress, I think, had about sixty-five members, and the first 
 amendment that was proposed to the Constitution was voted for by thirty- 
 seven members, obviously not two-thirds of the entire House. (First session 
 First Congress, Journal, p. 121, Gales and Seaton ed.) So the question seems 
 to have been met right on the very threshold of our Government and disposed 
 of in that way." 
 
 8 Hinds, Precedents of the House of Representatives, V, 7029-7039. 
 
 <3 Dall. 378; 1 L. ed. 644.
 
 OF THK FhDKKAL CONSTITUTION. 
 
 -olved, That the article of amendment proposed by Con- 
 gress to be added to the Constitution of the United Stain respect- 
 ing- the extinction of shivery therein having been inadvertently 
 presented to the President for his approval, it is hereby declared 
 that such approval was unnecessary to give effect to the action of 
 Congress in proposing said amendment, inconsistent with former 
 practice in reference to all amendments to the Constitution here- 
 tofore adopted, and being inadvertently done, should not crm- 
 >titute a precedent for the future; and the Secretary is hereby 
 instructed not to communicate the notice of the approval of said 
 proposed amendment by the President to the House of Repre- 
 seiitafives.'' 5 
 
 227. Scope of the Amending Clause, 
 
 In scope the amending power is now limited as to but one sub- 
 ject, -namely, the equal representation of the States in the Senate, a 
 It has by some been argued that even this limitation may be 
 evaded by adopting a constitutional amendment eliminating this 
 limitation upon the amending power, and thus opening the way 
 to subsequent amendments providing for an unequal senatorial 
 representation of the States, 7 
 
 It would seem that a state legislature having rejected an 
 amendment proposed by Congress, may later reconsider its action 
 and give its approval. 3 In 1865 the legislature of Kcntucky 
 having rejected a proposed amendment the governor of the State, 
 in a recommendation to the legislature, said: " Whon ratified by 
 the legislatures of the several States the question will be finally 
 withdrawn, and not before. Until ratified it will remain an 
 open question for the ratification of the legislatures of the several 
 
 5 For similar deoi-ions in the TTonso or Rejrresentatives, see Hinds, Prece- 
 dents of the House of Ifrfn-csoit'itircK, V, 1' 
 
 6 It lias jit limes boon allowed that no amendments in' violation of the 
 "spirit" of the Constitution or providing for a change in the essential nature 
 of tho Ainori.-an Stato, would he valid. The argument in support of this view 
 rest-, howrvir, upon a conception of the Constitution as a contract between 
 the Stut. -. 
 
 ^ Cf. von Il'ilst, Constitutional f.nn-. p. 31, note. 
 SJameson, COK! it utiai/'il Cmiri'iitions. 576.
 
 522 UNITED STATES CONSTITUTIONAL LAW. 
 
 States. When ratified by the legislature of a State, it will be 
 final as to such State; and, when ratified by the legislatures of 
 three-fourths of the several States, will be final as to all. Noth- 
 ing but ratification forecloses the right of action. When ratified, 
 all power is expended. Until ratified, the right to ratify 
 remains." 
 
 In the foregoing quotation it is said that a state legislature 
 having once ratified its action is final. Until three-fourths 
 of the States have ratified, any State may withdraw a rejection 
 previously given. This in fact was done by several States with 
 reference to the Fourteenth Amendment, and the ratifications thus 
 given accepted as valid. That a ratification onc given may not 
 be withdrawn would also seem to be settled by the action taken 
 by the federal authorities in counting among those ratifying the 
 Fourteenth Amendment certain States which, having ratified, 
 later attempted to reverse this 'action. 9 
 
 The submission in 1866 of the Fourteenth Amendment to the 
 legislatures of the States at a time when a number of the 
 Southern States had not yet been " reconstructed " and admitted 
 to the full enjoyment of privileges belonging to member States 
 of the Union, gave rise to the question whether the legislatures of 
 the reconstruction governments in those States were constitu- 
 tionally qualified to act in the premises. Seward, Secretary of 
 State, seemed at first doubtful of this. In his proclamation of 
 July 20, 1868, announcing the adoption of the Amendment, after 
 saying that in six States ratification had been had " by newly 
 constituted and established bodies avowing themselves to be and 
 acting as the legislatures respectively " of those States, and after 
 calling attention to the fact that Ohio and Xew Jersey had with- 
 drawn their ratifications, he said, hypothetically : "If the reso- 
 lutions of the legislatures of Ohio and New Jersey ratifying the 
 aforesaid Amendment are to be deemed as remaining in full 
 force and effect, notwithstanding the subsequent resolutions of 
 those States which purport to withdraw the consent of those 
 States from such ratification, then the aforesaid Amendment has 
 
 9 Jameson, 577-584.
 
 AMENDMENT OF THE FEDERAL CONSTITUTION. 523 
 
 been ratified in the manner heretofore mentioned, and so has 
 become valid to all intents and purposes as part of the Constitu- 
 tion of the United States." 
 
 Later, however, in a second proclamation Seward declared in 
 a positive manner the Amendment to have been adopted. 
 
 The requirement of ratification by the States lately in rebellion 
 of the Fourteenth Amendment as a condition precedent to their 
 readmission to full constitutional rights as member States of the 
 Union, was a requirement the imposition of which by Congress it 
 is difficult constitutionally to justify. But, a State having 
 yielded and ratified, the Supreme Court expressed the view in 
 White v. Hart 10 that a claim could not be made that the ratifica- 
 tion was void because given under coercion. 11 
 
 10 13 Wall. 646; 20 L. ed. 685. 
 
 11 The court say: "The third of these propositions is clearly unsound, and 
 requires only a few remarks. Congress authorized the State to form a new 
 constitution and she elected to proceed within the scope oi the authority 
 conferred. The result was submitted to Congress as a voluntary and valid 
 offering, and was so received and so recognized in the subsequent action of 
 that body. Upon the same grounds she might deny the validity of her ratifi- 
 cation of the constitutional amendments. The action of Congress upon the 
 subject cannot be inquired into. The case is clearly one in which the judicial 
 is bound to follow the action of the political department of the government 
 and is concluded by it/'
 
 CHAPTER XXXVII. 
 
 CONGRESS ITS ORGANIZATION: PRIVILEGES OF MEMBERS. 
 
 228. The Name. 
 
 The first section of Article I of the Constitution provides that 
 " all legislative powers herein granted shall be vested in a Con- 
 gress of the United States, which shall consist of a Senate and 
 House of Representatives." Following sections of this article 
 provide for the composition and organization of these two 
 branches of the national legislature and enumerate the powers 
 which they may collectively or severally exercise. In the present 
 chapter we shall be concerned with the constitutional provisions 
 for the organization of Congress. 
 
 The term ll Congress " is an old one, its international nse as 
 the title of formal meetings of heads of sovereign States or their 
 representatives, dates from the seventeenth century. 1 In America 
 the word had been used of such joint conferences as the colonies 
 had convened. When the articles of consideration were drawn 
 up, the term was applied to the confederate administrative and 
 law-making body, and, as was but natural, the same name was 
 given to the legislature provided for in the Constitution which 
 replaced the Articles. 
 
 229. Qualifications for Senators and Representatives. 
 
 It is required by the Constitution that Representatives shall 
 have attained the age of twenty-five years, have been seven years 
 citizens of the United States, 2 and be, when elected, inhabitants 
 of the State in which they are chosen. 3 Senators are required 
 to be thirty or more years of age, to have been nine years citizens 
 of the United States, and to be, when elected, inhabitants of the 
 State for which they are chosen. 4 
 
 1 Cf. Reinseh, American Legislatures, Chapter I. 
 
 2 This requirement was satisfied in the first congress by assuming that the 
 citizenship demanded could be dated from the time of the Articles of Con- 
 federation, if not indeed, from the Declaration of Independence. 
 
 3 Art. I, Sec. II, Cl. 2. 
 < Art. I, Sec. II, Cl. 3. 
 
 [524]
 
 CONGRESS ITS 
 
 It is furthermore provided by the Constitution that "no per- 
 son holding any office under the United States shall be a member 
 of either house during his continuance in office." 5 
 
 Furthermore, by Section 3 of the Fourteenth Amendment it is 
 declared that: " ^N'o 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." 8 
 
 It will be observed that habitancy and not mere residency m 
 a State is required. Habitancy implies greater permanency than 
 does residence. "A man's residence is often a legal conclusion 
 from statements showing his intention. Habitaney is a physical 
 fact which may be proved by eye witnesses." 7 
 
 The constitutional provision is that habitancy shall exist at 
 the time of election. It is thus legally possible for a member 
 of Congress, after election, to become the inhabitant of another 
 State without thereby forfeiting his seat. 
 
 $ 230. Qualifications Determined by Congress. 
 
 Though essentially a judicial function the conclusive deter- 
 mination as to whether the constitutional qualifications for mem- 
 bership have been met is, by the Constitution, placed in, the hands 
 of each of the two Houses of Congress. 8 It thus happens that 
 though neither House may formally impose qualifications addi- 
 
 5 Art. I, Sec. 6, Cl. 2. 
 
 cOngress has removed this disability from all, or practically all, persons 
 suffering from thn localise of participation in thf civil War. Delegates 
 from the Territories who are given the right to sit hnt not to vote in tin- House 
 of Representatives have their qualifications aud terms of office determined by 
 Congress. 
 
 7 Foster, Commentaries, G2. 
 
 8 "Each Il.nise shall l>e the judge of the elections, returns and qualifications 
 of its own meml>ers." Art. I, Sec. IV. C 1. 1.
 
 526 UNITED STATES CONSTITUTIONAL LAW. 
 
 tional to those mentioned in the Constitution, or waive those that 
 are mentioned, each may in practice do either of these things. 
 For example, in 1900, the House excluded Brigham Ii. Roberts 
 of Utah because of various charges brought against him, none of 
 which, however, alleged a constitutional disqualification. In this 
 case it was strenuously argued that, having the necessary consti- 
 tutional disqualifications, Roberts should be admitted to member- 
 ship, and then, if the House should so see fit, he might be 
 expelled by a two-thirds vote. 9 For the right to expel, it is 
 admitted, is absolute, and may be exercised for any reason which 
 the House thinks adequate.: 10 The House, however, by a large 
 majority voted to exclude Roberts.' 11 
 
 It is plain that no State may add qualifications to those 
 required by the Constitution of members of Congress. Thus in 
 1856, the governor of a State having refused to issue credentials 
 to the rival claimants, because they were disqualified under pro- 
 visions of the state constitution to membership in the House, the 
 House seated the one shown prima facie by official statement to 
 have a majority of votes. 12 Similar action was taken by the 
 Senate the same year. 
 
 The disqualification of a member of Congress, it has been held, 
 does not entitle the one receiving the next highest vote, to his 
 seat. 13 
 
 Members who have already taken the oath may, it has been 
 held, be unseated by a majority vote. That is to say, disqualifi- 
 cation being shown the process of expulsion, which requires a 
 two-thirds vote, is not needed: 1 * 
 
 9 " Each House may . . . with the concurrence of two-thirds, expel a 
 member." Art. I, Sec. V, Cl. 2. 
 
 Win Patterson's case (Hinds, 1276) it was held that a resolution of ex- 
 pulsion would not be entertained after the term of the accused Senator had 
 expired. In Whittemore's case it was held that one who, to escape expulsion, 
 had resigned, would, upon re-election, be refused his seat. 
 
 11 For a full statement of the arguments pro and contra in this important 
 case see House Rpt. 85, 56th Cong., 1st Sess. See also Hinds, Precedents of 
 the House of Representatives, Vol. I. 
 
 "Hinds, op. cit. 415; Story, Commentaries, 623-629. 
 
 is Hinds, 424. 
 
 "Hinds, 424.
 
 CONGRESS ITS ORGANIZATION. 527 
 
 In contested election cases each House may examine witnesses, 
 compel testimony and the production of papers, and punish wit- 
 nesses for contempt. 15 Imprisonment for contempt must, how- 
 ever, cease with the adjournment of the Congress which orders 
 it, for with the dissolution of that body its authority necessarily 
 ceases. 10 
 
 In the case of In Re Loney' 7 it was held that a notary public 
 or other state officer designated by Congress to take depositions 
 in cases of contested election of members of the House of Repre- 
 sentatives of the United States performs this function under the 
 authorityvof Congress and not under that of the State; and that 
 perjury alleged to have been committed before such notary or 
 other state official is exclusively cognizable in the federal courts. 
 In its opinion the court say : "Any one of the officers designated 
 by Congress to take the depositions of such witnesses (whether 
 he is appointed by the United States . . . or by the State 
 . . . ) performs this function, not under any authority derived 
 from the State, but solely under the authority conferred upon 
 him by Congress, and in a matter concerning the government of 
 the United States. . . . There are cases (the most familiar 
 of which are those of making and uttering counterfeit money) 
 in which the same act may be a violation of the laws of the State, 
 as well as of the laws of the United States, and may be punish- 
 able by the judiciary of either [citing cases]. But the power 
 of punishing a witness for testifying falsely in a judicial pro- 
 ceeding belongs peculiarly to" the government in whose tribunals 
 that proceeding is had. It is essential to the impartial and 
 efficient administration of justice in the tribunals of the nation 
 that witnesses should be able to testify freely before them unre- 
 strained by legislation of the State, or by fear of punishment in 
 the state courts. ... A witness who gives his testimony, 
 pursuant to the Constitution and laws of the United States, in 
 a case .pending in a court or other judicial tribunal of the United 
 
 isKilbourn v. Thompson, 103 U. S. 168; 26 L. ed. 377. 
 
 " Anderson v. Dunn, 6 Wh. 204 ; 5 L. ed. 242. 
 
 17134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 049.
 
 52 S UNITED STATES CONSTITUTIONAL LAW. 
 
 States, whether he testifies in the presence of that tribunal, or 
 before any magistrate or officer (either of the Nation or of the 
 State) designated by act of Congress for the purpose, is account- 
 able for the truth of his testimony to the United States only; and 
 perjury committed in so testifying is an offense against the public 
 justice of the United States, and within the exclusive jurisdic- 
 tion of the courts of the United States, and cannot therefore be 
 punished in the courts of Virginia." 18 
 
 231. Disqualification of Congressmen to Hold Federal Office. 
 
 The second clause of Section VI of Article I of the Constitu- 
 tion provides that: " Xo Senator or Representative shall dur- 
 ing the time for which he was elected be appointed to any 
 civil office under the authority of the United States, which shall 
 have been created, or the emoluments whereof shall have been 
 in-creased, during such time, and no person holding any office 
 under the United States shall be a member of either House dur- 
 ing his continuance in office." 
 
 In pursuance of this provision members of Congress have had 
 their seats, declared vacant for accepting commissions as officers 
 of the volunteer and regular army forces of the United States. 
 Visitors to academies, directors and trustees of public federal in- 
 stitutions appointed by law, are not held disqualified. In a House 
 Report on this subject, 19 the committee say : " It is not contended 
 that every position held by a member of Congress is an office 
 within the meaning of the Constitution, even though the term 
 office may usually be applied to many of these positions. . . . 
 In United States v. Hartwell (6 Wall. 3S5 ; 18 L. ed. 830), it is 
 laid down that ' an office is a public station or employment con- 
 ferred by the appointment of government. The term embraces the 
 ideas of tenure, duration, emolument, and duties.' Elsewhere it 
 is held that an office is ' an employment on behalf of the govern- 
 ment, in any station of public trust, nor merely transient, occa- 
 
 w For historical accounts of the manner in which contested ' elections in 
 Congress have 'been considered, see Journal of Social Science, 1870, pp. 56. and 
 Political Science Quarterly, XX, 421. 
 
 19 55th Cong. 3d Sess. Rpt. No. 2205.
 
 ->S ITS UK<.A.\IZATIO>*. 529 
 
 sional or incidental' (20 Johns. Rep. 492). A careful considera- 
 tion of all the positions above referred to will show that they are 
 merely transient, occasional or incidental in their nature, and 
 none of them possess the elements of duration, tenure or emolu- 
 ment All of these appointees were hut instruments to procure 
 detailed information for the better information and guidance of 
 Congress and are wholly lacking in the essential elements of an 
 office within the meaning of the Constitution." 
 
 The House has also held that a contractor under the Federal 
 Government is not constitutionally disqualified as a member. 
 
 A state office does not disqualify for membership. Thus, for 
 example, Senator La Follette held the office of Governor of Wis- 
 consin until January, 1906, although the Senate, after his elec- 
 tion to that body, met in extra session the preceding March. 
 Senator La Follette did not, however, appear in the Senate or 
 take the oath until January 4, 1906. 
 
 Members-elect, it has been held, may defer until the meeting 
 of Congress their choice between their seats and incompatible 
 offices to which they may have been elected or appointed. 211 
 
 The seat of a member who has accepted an incompatible office 
 may be declared vacant by a majority vote. 21 
 
 232. Ineligibility of Congressmen to Offices, the Emoluments 
 
 of Which Have Been Increased. 
 
 In 1909 it having been announced that President-Elect Taft 
 intended to nominate Senator Philander C. Kn>x as Secretary of 
 State, it was pointed out that he was constitutionally ineligible, 
 the salary of the Secretary's office having been increased by a 
 law passed while Knox was a Senator. In order to render Sena- 
 tor Knox eligible to the Secretaryship an act was passed by Con- 
 gress reducing the salary in question to that which it had been 
 before the increase mentioned. The strict constitutionality of 
 this action by Congress was questioned by many. 22 
 
 20 Hind.*, 402. 
 
 21 Hinds, 504. 
 
 22 In a minority report from a House Committee (House Rpt., No. 2155, 
 60th Cong., 2d Scss.) it is said: " We do not believe that a provision of the 
 
 34
 
 530 UNITED STATES CONSTITUTIONAL LAW. 
 
 233. Privileges of Members of Congress. 
 
 The first clause of the sixth section of Article I of the Con- 
 stitution provides : " The Senators and Representatives . . 
 shall in all cases, except treason, felony and breach of the peace, 
 be privileged from arrest during their attendance at the session 
 of their respective houses, and in going to and returning from 
 the same ; and for any speech or debate in either house, they shall 
 not be questioned in any other place." 
 
 The exemption from arrest thus given is now of little impor- 
 tance as arrest of the person is now almost never authorized except 
 for crimes which fall within the classes exempt from the privi- 
 lege. The words " treason, felony and breach of the peace " have 
 been construed to mean all indictable crimes. 23 
 
 Having decided in Kilbourn v. Thompson 24 that the investiga- 
 tion, in aid of which Kilbourn's testimony had been demanded, 
 was in reference to a matter concerning which Congress had not 
 the power to legislate, and that, therefore, the order for Kilbourn's 
 
 Constitution that is so clear and emphatic should be sought to be annulled or 
 suspended in the manner attempted -by the passage of this bill. The emolu- 
 ments of the Secretary of State were increased by the Fifty-ninth Congress. 
 The occupant of that office has been regularly receiving these emoluments. 
 We believe that the mischief undertaken to be provided against by this pro- 
 vision of the Constitution clearly embraces the act of appointing one of the 
 said United States Senators to the office of the Secretary of State. It might 
 be said, and truly, that this mischief is remote in any event; however this 
 may be, it contained sufficient danger for the framers of the Constitution to 
 provide against it. If the Constitution prohibits it, surely it can not be 
 argued that if this prohibition can be so easily overcome by the device of 
 reducing the salary below what in the judgment of the Congress it should 
 be, with the hope which in this case is almost a certainty, of the salary being 
 restored to its present amount, that that would not be clear evasion of the 
 plain provision of the Constitution. The office of the Secretary of State will 
 be probably held for eight years by its next incumbent, and a designing 
 Senator, which the Constitution seeks to provide against, could reasonably 
 anticipate, that although his salary would be temporarily reduced in the 
 closing years of his senatorial term, at the expiration of that term it would, 
 through his influence, be restored to the amount to which it was placed by 
 the Congress of which he was a member, and thus he would receive the higher 
 salary from at least two to probably eight years." 
 
 23 Williamson v. United States, 207 U. S. 425; 28 Sup. Ct. Rep. 163; 52 
 L. ed. 278; Hinds, Precedents of the House of Representatives, 2673. 
 
 24 103 U. S. 168; 26 L. ed. 377.
 
 CONGRESS ITS ORGANIZATION. 531 
 
 imprisonment had been void for want of jurisdiction, the court 
 go on to consider the personal liability of the individual mem- 
 bers voting for and participating in the commitment for con- 
 tempt. Having pointed out that these individual members had 
 undoubtedly, by their speeches, reports and notes, approved and 
 authorized the imprisonment of Kilbourn, and having quoted the 
 constitutional clause with reference to the exemption of members 
 of Congress from arrest, and from being questioned as to any 
 speech or debate, the court ask : " Is what the defendants did 
 in the matter in hand covered by this provision ? Is a resolution 
 offered by a member, speech or debate, within the meaning of 
 the clause ? Does its protection extend to the report which they 
 made to the House, of Kilbourn's delinquency ? To the expression 
 of opinion that he was in contempt of the authority of the House ? 
 To their vote in favor of the resolution under which he was 
 imprisoned? If these questions be answered in the affirmative, 
 they cannot be brought in question for their action in a court of 
 justice or in any other place. And yet if a report, or a resolu- 
 tion, or a vote, is not speech or debate, of what value is the con- 
 stitutional protection ? We may perhaps find some aid in ascer- 
 taining the meaning of this provision, if we can find out its 
 source, and fortunately in this therje is no difficulty. For while 
 the framers of the Constitution did not adopt the lex et con- 
 suetudo of the English Parliament as a whole, they did incor- 
 porate such parts of it, and with it such privileges of Parlia- 
 ment, as they thought proper to be applied to the two Houses of 
 Congress." 
 
 After reviewing the English case of Stockdale v. Hansard, and 
 the early Massachusetts case of Coffin v. Coffin 25 and the dictum 
 of Story in his Commentaries ( 8G6) the court say: " It seems 
 to us that the views expressed in the authorities we have cited 
 arc sound and are applicable to this case. It would be a narrow 
 vic-w of the constitutional provision to limit it to words spoken 
 in debate. The reason of the rule is as forcible in its applica- 
 tion to written reports presented in that body by its committees, 
 
 254 Mass. 1.
 
 532 UNITED STATES COXSTITUTIONAL LAW. 
 
 to resolutions offered, which, though in writing, must be repro- 
 duced in speech, and to the act of voting, whether it is done 
 vocally or by passing between the tellers. In short, to things 
 generally done in a session of the House by one of its members 
 in relation to the business before it. It is not necessary to decide 
 hre that there may not be things done, in the one House or 
 the other, of an extraordinary character, for which the members 
 who take part in the act may be held legally responsible. If we 
 conld suppose the members of these bodies so far to forget their 
 high functions and the noble instrument under which they act 
 as to imitate the Long Parliament in the execution of the Chief 
 Magistrate of the Xation, or to follow the example of the French 
 Assembly in assuming the function of a court for capital punish- 
 ment, we are not prepared to say that such an utter perversion of 
 their powers to a criminal purpose would be screened from pun- 
 ishment by the constitutional provision for freedom of debate. 
 In this, as in other matters which have been pressed on our 
 attention, we prefer to decide only what is necessary to the case 
 in hand, and we think the plea set up by those of the defendants 
 who were members of the House is a good defense." 
 
 As regards the freedom of the members of Congress from 
 prosecution for words spoken in either House, no comment is 
 needed, except to observe that this privilege does not extend to 
 the outside publication by a member of libelous matter spoken 
 in Congress. 23 As Story observes : " Xo man ought to have a 
 right to defame others under color of a performance of the duties 
 of his office. And if he does so in the actual discharge of his 
 duties in Congress, that furnishes no reason why he should be 
 enabled through the medium of the press to destroy the reputa- 
 tion and invade the repose of other citizens." 27 
 
 It may further be observed that the constitutional immunity 
 extends to witnesses appearing before committees of Congress, 
 and, probably, to petitions, and other addresses to that body. 28 
 
 26 King v. Creery, 1 Maule & Selw. 273. 
 
 27 Cummenlnrics, 863. 
 
 28 See Columbia Lair Her. Feb. 1910. the excellent paper of Mr. Van Veehten 
 Veeder, entitled "Absolute Immunity in Defamation: Legislative and Exec- 
 utive Proceedings."
 
 CHAPTER XXXYITI. 
 
 ELECTION OF MEMBERS OF COXGRESS.l 
 234. Their Apportionment among the States. 
 
 The Constitution provides that the House of Representatives 
 shall be composed of members chosen every second year by the 
 people of the several States, and that they shall be apportioned 
 among the States according to their several populations, the 
 whole number of persons in each State, excluding Indians not 
 taxed, being counted. 2 The Fourteenth Amendment provides, 
 however, that " when the right to vote at any election for the 
 ehuice of electors for President and Vice-President of the United 
 States, representatives in Congress, the executive or 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 
 
 1 The Senate and House of Representatives are spoken of as two "Houses'* 
 of Congress, the Senate being often termed the Upper House, and the House 
 of Representatives, the Lower House, or, simply the " House." 
 
 2 The original provision of the Constitution (Art. 8, Sec. 88, Cl. 3) was as 
 follows: "Representatives and direct taxes shall be apportioned among the 
 several States which may be included within this Union, according to their 
 respective numbers, which sliall 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 
 rrnintcratWB shall be made within three years after the first meeting of the 
 ( (.iiuu-s , k f the United States, and within every subsequent terra 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 
 ha>t one Representative; and until such enumeration shall be made, the State 
 < f Xe\v Hampshire shall be entitled to choose three, Massachusetts eight, 
 Rhode Island and Providence Plantations one, Connecticut five, New York six, 
 Xe\v Jersey four, Pennsylvania eight, Delaware one. Maryland six, Virginia 
 ten. Xurth Carolina five. South Carolina five, and Georgia three." 
 
 By section 2 of the Fourteenth Amendment, it is provided that " Repre- 
 sentative> 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. 
 
 [533]
 
 534 UNITED STATES CONSTITUTIONAL LAW. 
 
 which the number of such male citizens shall bear to the whole 
 number of male citizens twenty-one years of age in such State." 
 
 This amendment thus leaves it within the constitutional power 
 of the States to place such restrictions as they may choose upon 
 the exercise of the suffrage within their limits, but subject to a 
 reduction of the number of representatives to which they are 
 entitled in Congress to the extent to which the right to vote is 
 denied to adult male inhabitants, citizens of the United States. 
 
 The Fifteenth Amendment, adopted two years later, places the 
 absolute prohibition upon the States that " the right of citizens 
 of the United States to vote shall not be denied or abridged . . . 
 on account of race, color or previous condition' of servitude." 
 
 By some it has been argued that the Fifteenth Amendment is 
 to be construed as repealing the clause of the Fourteenth Amend- 
 ment relating to the reduction of the representation of the States, 
 in that it renders constitutionally impossible the action which 
 it was the object of that clause to deter -the States from taking. 
 This argument, though it has had the support of eminent author- 
 ity, 3 cannot be considered a sound one, for the clause of the 
 Fourteenth Amendment provides for a reduction not simply in 
 cases where adult male inhabitants, citizens of the United States, 
 are denied the right to vote because of race, color or previous 
 condition of servitude, but for any cause whatever, saving for 
 participation in rebellion or other crime. 
 
 As is well known, most of the Southern States have, by various/ 
 provisions adopted in their several constitutions, in large measure 
 eliminated the negro vote. This has led to a certain amount of 
 agitation both in the public press and in Congress for the enforce- 
 ment of the reduction of representation clause of the Fourteenth 
 Amendment, but as yet no decisive steps have been taken. 4 
 
 3 E. g. Senator John Sherman, Recollections, I, 450. See also article by Mr. 
 Emmet O'Neal in North American Review, Vol. 181, p. 530. 
 
 < In the platform of the Republican party adopted by the National Conven- 
 tion in 1904 it was declared: "We favor such congressional action as shall 
 determine whether, by special discriminations, the elective franchise in any 
 State has been unconstitutionally limited, and, if such be the case, we demand 
 that representation in Congress and in the Electoral College shall be propor- 
 tionally reduced, as directed by the Constitution of the United States."
 
 ELECTION OF MEMBERS OF CONGRESS. 535 
 
 In various States of the Union property, educational, and other 
 qualifications upon the right to vote have been established. These 
 limitations upon adult male suffrage have not, however, been held 
 to warrant an application of the reduction of representation 
 clause of the Fourteenth Amendment. To quote the words of 
 Cooley: "To require the payment of a capitation tax is no 
 denial of suffrage, it is demanding only the preliminary perform- 
 ance of public duty and may be classed, as may also presence at 
 the polls, with registration, or the observance of any other pre- 
 liminary to insure fairness and protect against fraud. Xor can 
 it be said that to require ability to read is any denial of suffrage. 
 To refuse to receive one's vote because he was born in some par- 
 ticular country rather than elsewhere, or because of his color, or 
 because of any natural quality or peculiarity which it would be 
 impossible for him to overcome, is plainly a denial of suffrage. 
 But ability to read is within the power of any man, it Is not 
 difficult to attain it, and it is no hardship to require it. On the 
 contrary the requirement only by indirection compels one to 
 appropriate a personal benefit he might otherwise neglect. It 
 denies to no man the suffrage, but the privilege is freely tendered 
 to all, subject only to a condition that is beneficial in its perform- 
 ance and light in its burden. If a property qualification, or the 
 payment of taxes upon property when one has none to be taxed, 
 is made a condition to suffrage, there may be room for more 
 question." 5 
 
 235. The Mode of Apportionment. 
 
 Jn the first Congress representatives were apportioned among 
 the States according to a rough estimate as to their respective 
 populations. Since that time new apportionments have been 
 based upon the figures of the decennial censuses. 
 
 6 Principles of Constitutional Law, edition of 1898, p. 292. The state courts 
 have very generally held that reasonable registration and other laws for the 
 protection of the ballot against fraud, intimidation, ignorance, etc., are not 
 unconstitutional under the state Constitution as adding to the qualifications 
 laid down. Cf. Cooley, Const. Lini., 7th ed., Ch. XVIII.
 
 536 I'xiTED STATES CONSTITUTIONAL LAW. 
 
 The first apportionment bill passed by. Congress ^as vetoed by 
 President Washington as unconstitutional in that it provided 
 for a representative for each thirty thousand of population, the 
 minimum fixed by the Constitution, and also an additional num- 
 ber to the States having the largest fractions left over after the 
 division was made. 6 
 
 Until 1842 fractions of populations left over by the dividing 
 of the populations of the several States by the number selected 
 for determining the number of representatives, went unrepre- 
 sented. Since that time, however, where these fractions have 
 exceeded a half of the ratio number, an additional representative 
 has been allowed. 
 
 236. Congressional Districts. 
 
 The division of the States into congressional districts for the 
 purpose of selecting representatives is left to the state legislatures. 
 Congress has, however, provided that these districts shall be com- 
 posed of contiguous territory. It has become an established rule 
 of political practice, though not one of constitutional obligation, 
 that a representative shall be a resident of the district in which 
 he is elected. Representatives are, however, occasionally elected 
 by districts in which they do not reside, and in such cases there 
 is no question as to their right to sit In certain cases, congress- 
 men at large, that is, from the whole State, are elected. This 
 happens when a State has not been divided into districts, or where, 
 after a reapportionment, an additional representative or repre- 
 sentatives have been allotted a State and that State has not re- 
 
 6 " Construing the Constitution to authorize a process by which the whole 
 num<ber of representatives should be ascertained on the whole population of 
 the United States, and afterwards ' apportioned among the several States 
 according to their respective numbers,' the Senate [in an amendment which 
 the House accepted] applied the number thirty thousand as a divisor to the 
 total population, and taking the quotient which was one hundred and twenty, 
 -s the number of representatives given by the ratio which had been adopted 
 in the House where the bill originated, they apportioned that number among 
 the several States by that ratio, until as mnny representatives as it would 
 give were allotted to each. The residuary numbers were then distributed among 
 the States having the highest fractions." Marshall, Lif<- of V\'aakington, V, 
 319. Cf. Foster, Commentaries on the Constitution, I, 385.
 
 ELECTION OF HEM UK us OF CONGRESS. ;,:;; 
 
 districted itself so as to provide the necessary additional districts. 
 In such case^, of course, only the additional representatives are 
 elected at large. 
 
 237. Members of the House of Representatives: by Whom 
 
 Elected. 
 
 The Constitution provides that for the election of Representa- 
 tives to Congress, " the electors in each State shall have the quali- 
 fications requisite for electors of the most numerous branch of the 
 state legislature." This places the determination of who may ex- 
 ercise the suffrage wholly within the control of the States, except 
 for the restriction placed upon them by the Fifteenth Amendment. 
 There thus exists the rather curious fact that the Xational Gov- 
 ernment though able to control its citizenship by naturalization 
 is not able to confer the suffrage for the election even of its own 
 officials; whereas the States may confer, and, indeed, in a number 
 of instances have conferred this suffrage upon persons not citi- 
 zens of the United States. 7 
 
 238. The Right to Vote for Representatives not a Necessary 
 
 Incident of National Citizenship. 
 
 That the suffrage is not a necessary incident of federal citizen- 
 ship is declared by the Supreme Court in Minor v. Happersett, 8 a 
 case in which it was argued that a woman, a citizen of the United 
 States, was, as such, entitled to a vote. In this case the direct 
 question was presented whether all citizens are necessarily vntcrs. 
 This the court answered by declaring that the United States has 
 no voters of its own creation in the States. After going on to 
 show that at the time the Constitution was adopted and ever 
 since, the right of suffrage in the States had not been coextensive 
 with that of citizenship, the opinion concludes: " For nearly 
 
 "i E. g., upon aliens who have declared their intention to become eit 
 but have not yet taken out their final papers. Hare (American Conatitufitmal 
 I.a>r. p. 520 1 denies the constitutionality "f this. He says: " Re*din? the 
 ; Constitution in the light of the Fifteenth Amendment, the just inference 
 j would perm to be that national riti/enship is a prerequisite to the right of 
 suffrage." This view is plainly incorrect. 
 821 Wall. 162; 22 L. cd. 627.
 
 538 UNITED STATES CONSTITUTIONAL LAW. 
 
 ninety years the people have acted upon the idea that the Con- 
 stitution, when it conferred citizenship, did not necessarily con- 
 fer the right of suffrage. . . . Being unanimously of the 
 opinion that the Constitution of the United States does not con- 
 fer the right of suffrage upon anyone, and that the constitutions 
 and laws of several States which commit that important trust to 
 men alone are not necessarily void, we affirm the judgment of the 
 court below." 
 
 It cannot be said, therefore, that the right to vote either at 
 federal or state elections is in any case determined directly by 
 federal law. Even the Fifteenth Amendment does not itself give 
 to any one the right. In United States v. Reese 9 the court say: 
 " The Fifteenth Amendment does not confer the right of suffrage 
 upon any one. It prevents the States, or the United States, how- 
 ever, from giving preference, in this particular, to one citizen 
 over another, on account of race, color, or previous condition of 
 servitude. ... It follows that the Amendment has invested 
 the citizens of the United States with a new constitutional right 
 which is within the protecting power of Congress. That right is 
 exemption from discrimination in the exercise of the elective 
 franchise on account of race, color or previous condition of 
 servitude." 
 
 And in United States v. Cruikshank 10 the court say: " In 
 Minor v. Happersett (21 Wall. 162; 22 L. ed. 627) we decided 
 that the Constitution of the United States has not conferred the 
 right of suffrage upon any one, and that the United States have 
 no voters of their own creation in the States. In United States 
 v. Reese (92 U. S. 214; 23 L. ed. 563), just decided, we held that 
 the Fifteenth Amendment has invested the citizens of the United 
 States with a new constitutional right, which is, exemption from 
 discrimination in the exercise of the elective franchise on account 
 of race, color, or previous condition of servitude. From this it 
 appears that the right of suffrage is not a necessary attribute of 
 national citizenship; but that exemption from discrimination in 
 
 992 U S. 214; 23 L. ed. 563. 
 i<>92 U. S. 542; 23 L. ed. 588.
 
 ELECTION OF MEMBERS OF COXGKESS. 53j 
 
 the exercise of that right on account of race, etc., is. The right 
 to vote in the States comes from the States; but the right of ex- 
 emption from the prohibited discrimination comes from the 
 United States." 
 
 In a much later case, Pope v. Williams, 11 the court again say: 
 " The privilege to vote in any State is not given by the federal 
 Constitution or by any of its Amendments." 
 
 In Xeal v. Delaware, 12 a case decided but a little later, the 
 court, however, point out that the effect of the Amendment by 
 abolishing ipso facto all limitations in state laws and constitutions 
 founded upon race, color, or previous condition of servitude, may 
 in effect operate to qualify certain persons to vote who otherwise 
 would not have the right The opinion says : " Beyond all ques- 
 tion the adoption of the Fifteenth Amendment had the effect, in 
 law, to remove from the state constitution, or render inoperative, 
 that provision which restricts the right of suffrage to the white 
 race. . . . There is, then, an excision or erasure of the word 
 ' white ' in the qualification of voters in this State ; and the Con- 
 stitution is now to be construed as if such word had never been 
 there." 
 
 Although, as appears from the foregoing, the right of deter- 
 mining the conditions upon which the suffrage is granted lies ex- 
 clusively within the discretion of the several States, subject only 
 to the limitation of the Fifteenth Amendment, it may happen 
 that state suffrage laws may be rendered invalid because in viola- 
 tion of certain other general limitations laid upon the States. 
 Thus, for example, a disfranchising law, operating as to particular 
 individuals as a bill of attainder, or as an ex post facto law, or as 
 tending to destroy a republican form of government in the State, 
 or as favoring the citizens of certain .States above those of other 
 States would probably be held void. 
 
 In Pope v. Williams 13 the court say : " It is unnecessary in 
 this case to assert that under no conceivable state of facts could a 
 state statute in regard to voting be regarded as an infringement 
 
 n 193 U. S. 621 ; 24 Sup. Ct. Rep. 573; 48 L. ed. 817. 
 
 12 103 U. S. 370 ; 26 L. ed. 567. 
 
 is l'.)3 U. S. 621 ; 24 Sup. Ct. Rep. 573; 48 L. ed. 817.
 
 540 UNITED STATES CONSTITUTIONAL LAW. 
 
 upon, or a discrimination against, the individual rights of a citizen 
 of the United States removing into the State, and excluded from 
 voting therein by state legislation. The question might arise if 
 an exclusion from the privilege of voting were founded upon the 
 particular State from which the person came, excluding from that 
 privilege, for instance, a citizen of the United States coming from 
 Georgia and allowing it to a citizen of the United States coming 
 from Xew York or any other State. In such case an argument 
 might be urged that, under the Fourteenth Amendment of the 
 federal Constitution, the citizen from Georgia was, by the state 
 statute, deprived of the equal protection of the laws. Other ex- 
 treme cases might be suggested." 
 
 In this case the court held valid a state law requiring persons 
 coming into the State to make a declaration of their intention of 
 becoming citizens and residents of the State before they could 
 claim the right to be registered as voters. The court say: " The 
 statute, so far as it provides conditions precedent to the exercise 
 of the elective franchise within the State, by persons coining 
 therein to reside ... is neither an unlawful discrimination 
 against any one in the situation of the plaintiff in error nor does 
 it deny to him the equal protection of the laws, nor is it repugnant 
 to any fundamental or inalienable rights of citizens of the United 
 States, or a violation of any implied guaranties of the federal 
 Constitution," 
 
 239. Though Determined by State Law, the Right to Vote for 
 
 Representatives is a Federal Right. 
 
 A distinction is to be made between the right to vote for a Rep- 
 resentative to Congress and the conditions upon which that right 
 is granted. In the preceding section it has been shown that the 
 right to vote is conditioned upon and determined by state 
 law. But the right itself, as thus determined, is a federal right. 
 That is to sayj the right springs from the provision of the federal 
 Constitution that Representatives shall be elected by those who 
 have the right in each State to vote for the members of the most 
 numerous branch of the state legislature. The Constitution thus
 
 ELECTION OF MEMBERS or CONGRESS. 541 
 
 gives the right but accepts, as its own, the qualifications which 
 the States severally see fit to establish with reference to the elec- 
 tion of the most numerous branch of their several state legislatures. 
 This is the doctrine laid down by the Supreme Court in Ex parte 
 Yarbrough 14 in which they say: "But it is not correct to say 
 that the right to vote for a member of Congress does not depend 
 upon the Constitution of the United States. The office, if it be 
 properly called an office, is created by that Constitution and by 
 that alone. It also declares how it shall be filled, namely, by 
 election. Its language is : ' The House of Representatives shall 
 be composed of members chosen every second year by the people 
 of the several States, and the electors in each State shall have the 
 qualifications requisite for the electors of the most numerous 
 branch of the state legislature.' (Article I, Section 2.) The States 
 in prescribing the qualifications of voters for the most numerous 
 branch of their own legislatures, do not do this with reference to 
 <he election of members of Congress. Xor can they prescribe the 
 qualifications for those eo nomine. They define who are to vote 
 for the popular branch of their own legislature, and the Constitu- 
 tion of the United States says the same persons shall vote for mem- 
 bers of Congress in that State. It adopts the qualification thus 
 furnished as the qualification of its own electors for members of 
 Congress. It is not true, therefore, that members of Congress owe 
 their right to vote to the state law in any sense which makes the 
 exercise of the right depend exclusively on the law of the 
 State." 15 
 
 " 110 U. S. 651 ; 4 Snp. Ct. Kpp. 152; 28 L. cd. 274. 
 
 is The opinion continues: "Counsel for petitioners, seizing upon the expres- 
 sion found in the opinion of the court in the case of Minor v. Happersett (21 
 Wall. 102: 22 L. ed. 027) that "the Constitution of the United States does 
 not confer the right of suffrage upon any one," without reference to the con- 
 nection in which it is u-v-:l. in.si*ts that the voters in this sense do not owe 
 their right to vote in any S"nse to that instrument. But the court was com- 
 batting the argument that this right was conferred on all citizens, and there- 
 fore upon women as well as men. In opposition to that idea, it was said the 
 Constitution adopts as the qualification for voter-; of meml>er9 of Congress 
 that which prevails in tho State whore the voting is to he d<tw . therefore, 
 said the opinion, the right is not definitely conferred on any per -son r class 
 of persons hy the Constitution alone, because you have to look to the !:
 
 542 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Wiley v. Sinkler, 10 an action brought in one of the federal 
 circuit courts against the board of managers of a general state 
 election to recover damages in the sum of twenty-five thousand 
 dollars for wrongfully rejecting the plaintiff's vote for a member 
 of the House of Representatives of the United States. , The de- 
 fendants demurred on the grounds that the court had no jurisdic- 
 tion because it did not affirmatively appear on the face of the 
 complaint that a federal question was involved, and because the 
 verdict for an amount sufficient to give the court jurisdiction 
 would be excessive. Upon error to the federal .Supreme Court, 
 that tribunal held that a federal right was directly involved for 
 
 the State for the description of the class. But the court did not intend to 
 say that when the class or the person is thus ascertained, his right to vote 
 for a member of Congress was not fundamentally based upon the Constitution, 
 which created the office of member of Congress, and declared it should be 
 elective, and pointed to the means of ascertaining who should be electors. 
 The Fifteenth Amendment of the Constitution, by its limitation on the power 
 of the States in the exercise of their right to prescribe the qualifications of 
 voters in their own elections and by its limitation of the power of the United 
 States over that subject, clearly shows that the right of suffrage was con- 
 sidered to be of supreme importance to the National Government, and was 
 not intended to be left within the exclusive control of the States. It is in 
 the following language: Sec. 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, en 
 account of race, color, or previous condition of servitude. Sec. 2. The Con- 
 gress shall have power to enforce this article by appropriate legislation. 
 
 " While it is quite true, as was said by this court in United States v. Reese 
 (92 U. S. 214; 23 L. ed. 563) that this article gives no affirmative right to 
 the colored men to vote, and is designed primarily to prevent discrimination 
 against him whenever the right to vote may be granted to others, it is easy 
 to see that under some circumstances it may operate as the immediate source 
 of a right td vote. In all cases where the former slave-holding States had 
 not removed from their Constitutions the words ' white men ' as a qualifica- 
 tion for voting, this provision did, in effect, confer on him the right to vote, 
 because, being paramount to the state law, and a part of the state law. it 
 annulled the discriminating word ' white,' and thus left him in the enjoyment 
 of the same right as white persons. And such would be the effect of any 
 further constitutional provision of a State which should give the right of 
 voting exclusively to white people, whether they be men or women. Xeal v. 
 Delaware, 103 U. S. 370; 26 L. ed. 567. In such cases this Fifteenth Article 
 of Amendment does, proprio vigore. substantially confer on the negro the right 
 to vote, and Congress has the power to protect and enforce that right." 
 
 16179 U. S. 58; 21 Sup. Ct. Rep. 17; 45 L. ed. 84.
 
 ELECTION OF MEMBERS OF COXGEESS. 543 
 
 " the right to vote for members of the Congress of the United 
 States is not derived merely from the Constitution and laws of 
 the State in which they are chosen, but has its foundation in the 
 Constitution of the United States." " The amount of damages 
 claimed, the court held, to be " peculiarly appropriate for the de- 
 termination of a jury," and that no opinion of the court would 
 " justify it in holding that the amount in controversy was in- 
 sufficient to support the jurisdiction of the circuit court" 18 
 
 240. Federal Control of Congressional Elections. 
 
 According to the Constitution, " The times, places and manner 
 of holding elections for Senators and Representatives, shall be pre- 
 scribed in each State by the legislature thereof; but the Congress 
 may at any time by law malce or alter such regulations, except as 
 to the places of choosing Senators." 
 
 In this clause sufficient authority is given the Federal Govern- 
 ment, should it so see fit, to assume entire and exclusive control 
 of the elections of Senators and Representatives; to establish by 
 acts of Congress the regulations governing the same, and to apply 
 and enforce these regulations by federal officials and tribunals. 
 
 The United States government did not exercise any of the 
 power thus given it until 1842 when, conceiving that the system 
 employed in some States of electing all the members of the House 
 of Representatives upon a general ticket (that is, one according 
 to which each voter voted for as many Representatives as there 
 were Representatives to be elected from his State) gave an undue 
 power to the political party in the majority in the State, Congress 
 enacted a law declaring that each member should be elected by a 
 separate district composed of contiguous territory. 19 In 1866 an 
 act was passed regulating the election of Senators by the state 
 
 17 Citing Ex parte Yarbrough, 110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 
 274. 
 
 is As to constitutionality of federal regulation and protection, and the 
 federal character of the right to vote for Representatives to Congress, see 
 In re Coy. 127 U. S. 731; 8 Sup. Ct. Rep. 1263; 32 L. ed. 274; Mason v. 
 Mi-souri. 170 V. S. 32S : 21 Sup. Ct. Rep. 125; 45 L. ed. 214; Swafford v. 
 Tonipleton. 185 I*. S. 487; 22 Sup. Ct. Rep. 783; 46 L. ed. 1005. 
 
 "85 Stat. at L. 491.
 
 544 UNITED STATES CONSTITUTIONAL LAW. 
 
 legislatures. In 1873 Congress again acted, providing by law that 
 the election of Representatives in all of the States should occur 
 upon the same day, namely, the Tuesday following the first Mon- 
 day in Xovember, 1876, and on the same day of every second year 
 thereafter. 20 In like manner Congress fixed the day for election 
 of presidential electors. 
 
 By act of 1872, amended by that of February 14, 1899, it is 
 provided that " all votes for Representatives in Congress must be 
 by written or printed ballot or voting machine, the use of which 
 has been duly authorized by the state law ; and all votes received 
 or recorded contrary to this section shall be of no effect." 
 
 Other federal laws prohibit interference in elections by federal 
 troops, or army or navy officers ; 23 and by the law of 1870 it is pr - 
 vided generally at all elections that no persons shall be provent<_d 
 from voting because of race, color or previous condition of 
 servitude. 22 
 
 A general law enacted in 1870 (amended in 1871), entitled a 
 law " To enforce the Rights of Citizens of the United States to 
 Vote in the Several States of the Union," while not itself estab- 
 lishing .positive regulations of its own, provided for the appoint- 
 ment of marshals and supervisors of elections to see to it that the 
 state laws governing elections of Representatives to Congress were 
 fairly and effectively executed. 23 
 
 This right of oversight' was, however, resisted by some of the 
 States upon the ground that, though the United States might 
 establish regulations of its own, appoint officials to execute them, 
 and compel the officials of the State as well as private citizens t 
 conform to them, it had no right or power to control state officials 
 in the execution of the laws enacted by their own States, even 
 
 20 By act of March 3, 1875, this provision was made "not to apply to any 
 State that lias not yet changed its day of election and whose Constitution 
 must be amended in order to effect a change in the day of election of state 
 officers in said State." The elections in the States of Maine, Vermont and 
 Oregon at present are held under this provision. 
 
 2iEev. Stat., 2003, 5530, 5528. 
 
 22 Rev. Stat , 2004. This Ia\v was of course enacted under authority 
 given by the Fifteenth Amendment. 
 
 23 This law was repealed February 8, 1894.
 
 ELECTION OF MEMBERS OF COXGKESS. 545 
 
 when those laws related to the election of members of the Xa- 
 ticnal Legislature. 
 
 This controversy reached a judicial settlement in the case of Ex 
 parte Siebold, 24 decided in 1879. This suit arose out of the ar- 
 rest of certain state-appointed judges of elections who were 
 charged with interfering with and resisting supervisors and 
 deputy marshals holding appointment from the Federal Govern- 
 ment under the act of 1870. In behalf of the defendants it was 
 maintained that the federal officials had been without constitu- 
 tional authority, and, therefore, that the resistance offered them 
 was not a legal offense. 
 
 The argument is stated by Justice Field in his dissenting 
 opinion, lie there takes the position that in granting to the Fed- 
 eral Government the authority to enact laws regulating the elec- 
 tions of Senators and Representatives, the intention of the framers 
 of the Constitution had been simply to authorize the General Gov- 
 ernment to legislate in case the state government refused to take 
 any steps whatever. He said : '' The act was designed simply 
 to give to the General Government the means of its preservation 
 against a possible dissolution from the hostility of the States to 
 the election of Representatives, or from their neglect to provide 
 suitable means for holding such elections." As evidence that this 
 was the intention, Madison's remarks in the Constitutional Con- 
 vention -and Hamilton's in The Federalist were cited. So loi;g 
 as the state laws are retained and administered by state officials, 
 they cannot, argued Field, be properly regarded as federal laws, 
 and Congress cannot provide for their federal supervision, " The 
 act of Congress," he said, ' asserts a power inconsistent with and 
 destructive of the independence of the States. The right to con- 
 trol their own officers, to prescribe the duties they shall perform, 
 without the supervision or interference of any other authority, 
 and the penalties to which they shall be subjected for a violation 
 of duty is essential to that independence," After quoting from 
 Kentucky v. Deimison, 23 Field continues: " If it be incompetent 
 
 = 100 IT. S. 371 ; 25 L. ed. 717. 
 24 How. 6C; 16 L. d. 717.
 
 546 UNITED STATES CONSTITUTIONAL LAW. 
 
 for the Federal Government to enforce by coercive measures the 
 performance of a plain duty, imposed by a law of Congress upon 
 the executive officer of a State [the rendition of fugitives from 
 justice] it would seem to be equally incompetent for it to enforce 
 by similar measures the performance of a duty imposed upon him 
 by a law of a State. If Congress* cannot impose upon a state 
 officer, as such, the performance of any duty, it would seem logic- 
 ally to follow that it cannot subject him to punishment for the 
 neglect of such duties as the State may impose. It cannot punish 
 for the non-performance of a duty which it cannot prescribe. 
 . . . Whenever, therefore, the Federal Government, instead of 
 acting through its own officers, seeks to accomplish its purposes 
 through the agency of officers of the States, it must accept the 
 agency with the conditions upon which the officers are permitted 
 to act. . . . When, therefore, the Federal Government de- 
 sires to compel, by coercive measures and punitive sanctions, the 
 performance of any duties devolved upon it by the Constitution, 
 it must appoint its own officers and agents, upon whom its power 
 can be exerted. . . . Whatever Congress may properly do 
 touching the regulations [governing elections] one of two things 
 must follow: either the altered or the new regulation remains a 
 state law, or it becomes a law of Congress. If it remains a state 
 law, it must, like other laws of the State, be enforced through its 
 instrumentalities and agencies, and with the penalties which it 
 may see fit to prescribe, and without the supervision or interfer- 
 ence of federal officials. If, on the other hand, it becomes a law 
 of Congress, it must be carried into execution by such officers and 
 with such sanctions as Congress may designate. . . . With 
 respect to the election of Representatives/' Field concludes, " as 
 long as Congress does not adopt regulations of its own and enforce 
 them through federal officers, but permits the regulations of the 
 States to remain, it must depend for a compliance with Tiem upon 
 the fidelity of the state officers and their responsibility to their 
 own government. All the provisions of the law, therefore, author- 
 izing supervisors and marshals to interfere with those officers in 
 the discharge of their duties and providing for criminal prosecu-
 
 ELKCTIOX OF MKMHERS OF CONGRESS. 547 
 
 tions against them in the federal Courts, are, in my judgment, 
 clearly in conflict with the Constitution." 
 
 The majority of the court, however, in their opinion say: 
 " There is no declaration that the regulations shall be made either 
 wholly by the state legislatures or wholly by Congress. If Con- 
 gress does not interfere, of course they may be made wholly by 
 the State; but if it chooses to interfere, there is nothing in the 
 words to prevent its doing so, either wholly or partially. On the 
 contrary, the necessary implication is that it may do either. It 
 may either make the regulations, or it may alter them. If it 
 only alters, leaving, as manifest convenience requires, the general 
 organization of the polls to the State, there results a necessary 
 co-operation of the two governments in regulating the subject. 
 But no repugnance in the system of regulations can arise thence; 
 for the power of Congress over the subject is paramount It may 
 be exercised as and when Congress sees fit to exercise it. When 
 exercised, the action of Congress, so far as it extends and conflicts 
 with the regulations of the State, necessarily supersedes them. 
 This is implied in the power ' to make or alter.' r 
 
 As to the supposed incompatibility of independent sanctions 
 and punishments imposed by the two governments, for the enforce- 
 ment of the duties required of their respective officers of election, 
 and for their protection in the .performance of those duties, the 
 court say: ''While the State will retain the power of enforcing 
 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 in- 
 terfere 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 pre- 
 vention of frauds committed by the state officers in the elections, 
 or for their violation of any duty relating thereto, whether arising 
 from the common law or from any other law, state or national.
 
 548 UNITED STATES CONSTITUTIONAL LAW. 
 
 Why not ? ... It is objected that Congress has no power to 
 enforce state laws or punish state officers, especially has no power 
 to punish them for violating the laws of their -own State. As a 
 general proposition this is. undoubtedly, true; but when, in the 
 performance of their functions, state officers are called upon to 
 fulfil 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 Rep- 
 resentatives 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 trans- 
 action than the state government is. It certainly is net obliged to 
 stand by as a passive spectator, when duties are violated and out- 
 rageous frauds are committed. It is directly interested in the 
 faithful performance, by the officers of elections, of their respect- 
 ive duties. Those duties are owed as well to the United Statea 
 as to the State. This necessarily follows from the mixed nature 
 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 government. ]STo official position can shelter 
 him from this responsibility. In view of the fact that Congress 
 has plenary and paramount jurisdiction over the whole subject, 
 it seems almost absurd to say that an officer who receives or has 
 custody of the ballots given for Representatives owes no duty to 
 the Xational 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 ob- 
 jection 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 necessarv to interfere with the duties of the ordi-
 
 ELECTION OF ]\!KM MKK.S OF CONGRESS. 549 
 
 nary 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 for supervision in 
 order more effectually to secure such performance. The imposi- 
 tion 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 fulfilment 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." 
 
 In Ex parte Clarke 20 and Ex parte Yarbrough 27 the doctrine 
 declared in Siebold's case is reaffirmed, the court saying in the 
 latter case, "If this government is anything more than a mere 
 aggregation of delegated agents of other States and governments, 
 each of which is superior to the General Government, it must have 
 the power to protect the elections from violence and corruption." 
 
 In the Yarbrough case the law of 1870 w-as held to support an 
 indictment charging a conspiracy to intimidate a citizen of 
 African descent from voting. 28 The parties interfered with some 
 
 26 100 U. S. 399; 2o L. ed. 715. 
 
 27 110 U. S. 6.11; 4 Sup. Ct. Rep. 152: 28 L. ed. 274. 
 
 28 " Rev. Stat., 2208. If two or more persons conspire to injure, oppress, 
 threaten or intimidate any citizen in the free exercise or enjoyment of any 
 right or privilege secured to him by the Constitution or laws of the United 
 States or because of his having so exercised the same, or if two or more per- 
 sons go in disguise on the highway or ou the premises of another, with intent 
 to prevent or hinder his free exercise or enjoyment of any right or privilege 
 BO secured, they shall be fined not more than $5.000 and imprisoned not 
 more than ten years; and shall, moreover, thereafter be ineligible to any 
 office or place of honor, profit or trust created by the Constitution or laws of 
 the United States." 
 
 " S o.VJO. If two or mor<> persons in any State or Territory conspire to 
 prevent by force, intimidation or throat, any citi/.en who is lawfully entitled 
 to vote, from giving his support or advocacy, in a legal manner, toward or 
 in favor of the election of any lawfully qualified person as an elector for 
 President or Vice-President, or as a member of the Congress of the United 
 States; or to injure any citizen in person or property on account of such 
 advocacy; each of such persons shall be punished by a fine of not less than
 
 550 UNITED STATES CONSTITUTIONAL LA\V. 
 
 others not officers of the United States, as in the Siebold case, 
 but this difference, the court held, had no bearing upon the consti- 
 tutional power of the Federal Government to punish those in- 
 terfering. 
 
 " The power in either case arises out of the circumstances 
 that the function in which the party is engaged or the right 
 which he is about to exercise is dependent on the laws of the 
 United States. In both cases it is the duty of that government to 
 see that he may exercise this right freely and to protect him from 
 violence while so doing r on account of so doing. This duty 
 does not arise solely from the interest of the party concerned, but 
 from the necessity of the government itself, that its service shall 
 be free from the adverse influence of force and fraud practised on 
 its agents, and that the votes by which its members of Congress 
 and its President are elected shall be the free votes of the electors, 
 and the officers thus chosen the free and uncorrupted choice of 
 those who have the right to take part in that choice." 
 
 241. Enforcement Clause of the Fifteenth Amendment. 
 
 By the second section of the Fifteenth Amendment Congress is 
 given power to enact laws necessary for the enforcement of the 
 prohibition expressed in the first section. 
 
 The federal authority thus granted, it is to be observed, has 
 reference to all elections whether state or federal. In this respect 
 it is thus much broader than that given in Section IV of Article I. 
 In other respects, however, the power granted is much narrower, 
 for it authorizes federal intervention only in cases where the right 
 to vote has been denied o:- abridged on account of race, color, or 
 previous condition of servitude. Thus in United States v. Reese r9 
 an act of Congress which made it a crime to hinder, delay or re- 
 strict any citizen from doing any act to qualify him to vote or 
 from voting at any election, was held void because its operation 
 was not confined to cases in which the interference was on account 
 of race, color, or previous condition of servitude. 
 
 $500 nor more than $5,000, or by imprisonment, with or without hard labor, 
 not less than six months nor more than six years, or by both such fine 
 and imprisonment." 
 
 2992 U. S. 214; 23 L. ed. 563.
 
 ELECTION OF MEMBERS OF CONGRESS. 551 
 
 In James v. Bowman 30 it was finally determined by the Su- 
 preme Court that the prohibition of the Fifteenth Amendment ap- 
 plied not to private but only to state action. Therefore the 
 court held void an act of Congress which provided for the punish- 
 ment of individuals who by threats, bribery or otherwise should 
 prevent or intimidate others from exercising the right of suffrage 
 as guaranteed by the Fifteenth Amendment. 
 
 After reviewing the manner in which the prohibitions of the 
 Fifteenth Amendment had, by judicial construction, been held to 
 relate to state action only, and the legislative power of Congress 
 under the enforcement clause of that Amendment limited to the 
 enactment of laws providing remedies against unconstitutional 
 state action, the cour't in its opinion, say : " These authorities 
 show that a statute [of Congress] which purports to punish purely 
 individual action cannot be sustained as an appropriate exercise 
 of the power conferred by the Fifteenth Amendment upon Con- 
 gress to prevent action by the State through some one or more 
 of its official representatives." w 
 
 242. Disfranchisement Clauses of the Southern States. 
 
 As has been before adverted to, most, if not all, of the Southern 
 States in which the negro population is very considerable, have, 
 by means of constitutional amendments or in constitutions newly 
 adopted, secured in effect the almost total disfranchisement of 
 their colored citizens. This, however, has been done, not by dis- 
 franchisement provisions expressly directed against the negroes, 
 but by requiring all voters to be registered, and placing condi- 
 tions upon registration which very few negroes are able to meet, 
 or, at any rate, to satisfy the registration officers that they do 
 meet taem. 
 
 If the courts may freely go behind the terms of a constitu- 
 tional clause to discover its intent, and to construe it by that 
 intent, or if it may test its validity by its actual operation in 
 practice, it would seem that a possible opportunity is afforded for 
 
 30190 U. S. 127; 23 Stip. Ct. Rep. 678; 47 L. ed. 970. 
 
 31 In this case it is also held that "an indictment which charges no dis- 
 crimination on account of race, color or previous condition of servitude, 
 is likewise destitute of support by such Amendment."
 
 552 UNITED STATES CONSTITUTIONAL LAW. 
 
 holding void some at least of the disfranchising clauses of the 
 constitutions of the Southern States. As yet, however, no case 
 has been brought before the Supreme Court in which the court 
 has consented to make this examination. As to the circumstances 
 under which the court will consent to go back of the terms of a 
 law, to determine its real intent and effect, two interesting cases 
 are Yick Wo v. Hopkins 32 and Williams v. Mississippi. 33 In the 
 former case the law or ordinance in question was held void in that 
 it attempted to give to an administrative officer an arbitrary dis- 
 cretionary power, and also in that an actual arbitrary discriminat- 
 ing use of that authority was shown. In Williams v. Mississippi 
 the court declined to hold void the state law in question, the law 
 being upon its face not in violation of the equal protection clause 
 of the Fourteenth Amendment, and no discrimination in fact 
 being proved. In Yick Wo v. Hopkins the court say : " Though 
 the law itself be fair on its face and impartial in appearance, yet,, 
 if it is applied and administered by public authority with an evil 
 eye and an unequal hand, so as practically to make unjust and 
 illegal discriminations between persons in similar circumstances, 
 material to their rights, the denial of justice is still within the 
 prohibition of the Constitution." This doctrine, however, the 
 court say in the Williams case is not applicable to the Constitu- 
 tion of Mississippi and its statutes. " They do not on their face 
 discriminate between the races, and it has not been shown that 
 their actual administration was evil, only that evil was possible 
 under them." 
 
 In Giles v. Harris, 34 decided in 1903, a colored citizen of Ala- 
 bama brought an action in a federal court against the registrar! 
 his county to compel them to register him as a voter, claiming that 
 the provisions of the Alabama Constitution upon which the regis- 
 trars based their refusal to register him were in violation of the 
 equal protection clause of the Fourteenth Amendment and of the 
 prohibition of the Fifteenth Amendment. The Supreme Court, 
 to which the case finally came for adjudication, refused the relief 
 
 32 118 U. S. 356; 6 Snp. Ct. Rep. 1084; 30 L. erl. 220. 
 S3 170 U. S. 213; 18 Sup. Ct. Rep. 583: 42 L. ed. 1012. 
 34189 U. S. 475; 23 Sup. Ct. Rep. 630 : 47 L. ed. 009.
 
 ELECTION OF MKMUEHS OF CONGRESS. 553 
 
 prayed, saving : " The difficulties which we cannot overcome are 
 two, and the first is this: The plaintiff alleges that the whole 
 registration scheme of the Alabama Constitution is a fraud upon 
 the Constitution of the United States, and asks us to declare it 
 void. But, of course, he could not maintain a bill for a mere 
 declaration in the air. He does not try to do so, but asks to be 
 registered as a party qualified under the void instrument. If, 
 then, we accept the conclusion which it is the chief purpose of the 
 bill to maintain, how can we make the court a party to the unlaw- 
 ful scheme by accepting it and adding another voter to its fraudu- 
 lent lists ? If the sections of the Constitution concerning 
 registration were illegal in their inception, it would be a new doc- 
 trine in constitutional law that the original invalidity could be 
 cured by an administration which defeated their intent. The 
 other difficulty is of a different sort, and strikingly reinforces the 
 argument that equity cannot undertake now, any more than it 
 has in the past, to enforce political rights, and also the suggestion 
 that state constitutions were not left unmentioned in sec'tion 1979 
 by accident. In determining whether a court of equity can take 
 jurisdiction, one of the first questions is what it can do to enforce 
 any order that it may make. This is alleged to be the conspiracy 
 of a State, although the State is not and could not be made a 
 party to the bill. (Hans v. Louisiana, 134 U. S. 1 ; 10 up. Ct 
 Rep. 504; 33 L. ed. 842.) The circuit court has no constitutional 
 power to control its action by any direct means. And if we leave 
 the State out of consideration, the court has as little practical 
 power to deal with the people of the State in a body. The bill 
 imports that the great mass of the white population intends to 
 keep the blacks from voting. To meet such an intent something 
 more than ordering the plaintiff's name to be inscribed upon the 
 lists of 1902 will be needed. If the conspiracy and intent exist, 
 a name on a piece of paper will not defeat them. Unless we are 
 prepared to supervise the voting in that State by officers of the 
 court, it Seems to us that all that the plaintiff could get from 
 equity would be an empty form. Apart from damages to tlic 
 individual, relief from a great political wrong, if done, as alleged,
 
 554 UNITED STATES CONSTITUTIONAL LAW. 
 
 by the people of a State and the State itself, must be given by 
 them or by the legislative and political department of the govern- 
 ment of the United States." 35 
 
 In Giles v. Teasley, 36 which was an action brought to recover 
 damages against the board of registrars for refusing to register 
 the plaintiff as a qualified elector of the State. The Supreme 
 Court of Alabama held that if the provisions of the state consti- 
 tution were repugnant to the Fifteenth Amendment they were 
 void and the board of registrars appointed thereunder had no legal 
 existence and had no power to act and would not be liable for a 
 refusal to register the plaintiff ; while on the other hand, if the 
 provisions were constitutional the registrars acted properly there- 
 under and their action was not reviewable by the courts. The 
 Supreme Court of the United States held that the Alabama court 
 had not decided any federal question adversely to the plaintiff, 
 and, therefore, that the Supreme Court had no jurisdiction to re- 
 view the decision of the state court. 
 
 In Jones v. Montague, 37 decided in 1904, the court declined to 
 review the dismissal of a petition for a writ of prohibition to 
 prevent the canvass of the votes cast at a congressional election 
 (upon claim that the petitioners had, in violation of the federal 
 Constitution, been denied registration) for the reason that the 
 canvass had in fact been already made, and certificates of election 
 issued to persons who had been recognized by the House of Rep- 
 resentatives as members thereof. The court thus, in any event, 
 not being able to provide any relief, the case became merely a 
 moot one, and as such was dismissed. 
 
 In the light of the foregoing unsuccessful attempts to obtain 
 from the Supreme Court relief from the operation of the disfran- 
 chising clauses of the state constitutions we have been consider- 
 ing, the question may properly be asked whether it is constitution- 
 ally possible for the Congress to provide by legislation means l>y 
 which the constitutionality of these clauses may be fairly passed 
 upon by the courts and the appropriate relief given. It would seem 
 
 33 Justices Harlan, Brewer, and Brown dissented. 
 
 36 193 U. S. 146; 24 Sup. Ct. Rep. 359; 48 L. ed. 655. 
 
 87194 U. S. 147; 24 Sup. Ct. Rep. 811; 48 L. ed. 913.
 
 ELECTION OF MEMBERS OF CONGRESS. 555 
 
 that much might be done. As regards congressional elections, Con- 
 gress has, as we have seen, plenary powers of control, and could 
 take complete charge of both the elections and the registration of 
 the voters. In such case the federal registrars might refuse to 
 register white voters under clauses of the state laws which they 
 might hold to be in violation of the federal Constitution, and the 
 voters so refused registration would have to seek redress in the 
 federal courts and set up the validity of these state laws. As re- 
 gards state elections Congress might enact laws giving to federal 
 courts jurisdiction of actions brought against state registrations 
 or election officials who, in violation of federal constitutional 
 rights, have refused registration or opportunity to vote to legally- 
 qualified .persons. 
 
 Whether or not such legislation, the possibility of which is 
 above suggested, would be wise is a question by itself. Whether, 
 if wise, it could be efficiently enforced in communities where it 
 would meet strong and united popular opposition is another ques- 
 tion. " In the last analysis obedience not voluntarily given must, 
 for the most part, be compelled by force applied through the in- 
 strumentality of criminal prosecutions. In the face of the united 
 and passionate opposition of the white people of the .South, such 
 prosecutions in the past have failed to accomplish any permanently 
 useful results. It is probable that convictions would be difficult 
 to obtain even where the offense was flagrant and the guilt of the 
 defendants clear." ^ 
 
 243. The Power of the United States to Compel the Election 
 
 by the States of Representatives to Congress, Senators 
 
 and Presidential Electors. >^ 
 
 It has at times been suggested that the States might, if they 
 
 should so choose, destroy the Federal Government by a refusal to 
 
 select Presidential Electors, Representatives to Congress and 
 
 Senators. In the case of Representatives, should the States refuse 
 
 to take action, their election could, as we have seen, be directly 
 
 ** I*. S. Di*t. Atty. Rose, in American ]'<>liti"tl Science Rcricir. I, 41, in 
 an article entitled ''Negro Suffrage: The Constitutional Point of View."
 
 556 UNITED STATES CONSTITUTIONAL LAW. 
 
 undertaken by the Federal Government. As regards Senators 
 and Presidential Electors, however, the Federal Government 
 could not itself undertake their election, and it is difficult to sug- 
 gest legal means by which state action could be compelled. In 
 Cohens v. Virginia, 36 Barbour, arguing in behalf of the position 
 which had been taken by Virginia, declared : " Whenever the 
 States shall be determined to destroy the Federal Government, 
 they will not find it necessary to act, and to act in violation of 
 the Constitution. They can quietly accomplish the purpose by 
 not acting. Upon the state legislatures it depends to appoint the 
 Senators and Presidential Electors, or to provide for their elec- 
 tion. Let them merely not act in these particulars, the executive 
 department and part of the legislature ceases to exist, and the 
 Federal Government thus perishes by a sin of omission not of 
 commission." To this position Webster alluded in his speech in 
 reply to Calhoun, and endeavored to minimize its importance 
 from the States' Rights standpoint. " I hear it often suggested," 
 he said, " that the States, by refusing to appoint Senators and 
 Electors, might bring this government to an end. Perhaps this 
 is true ; but the same may be said of the state governments them- 
 selves. Suppose the legislature of a State, having the power to 
 appoint the governor and the judges, should omit that duty, would 
 not the state government remain unorganized ? Xo doubt, all 
 elective governments may be broken up by a general abandonment 
 on the part of those entrusted with political powers, of their ap- 
 propriate duties." Moreover, as a matter of fact, as Webster went 
 on to show, in a certain very important sense the federal Consti- 
 tution relies, for the maintenance of the government which it- 
 establishes, upon the plighted faith not of the States, as States, 
 but upon the several oaths of its individual citizens, in that all 
 members of a state legislature are obliged, as a condition prece- 
 dent to their taking their seats, to swear to support the federal 
 Constitution, and from the obligation of this oath no state power 
 can discharge them. Thus, says Webster, " no member of a state 
 legislature can refuse to proceed at the proper time to elect Sena- 
 
 39 6 Wh. 264 ; 5 L. ed. 257.
 
 N OF HEMIJKKS OF COXGEESS. 557 
 
 tors to Congress, or to provide for the choice of Electors of Presi- 
 dent and Vice-President, any more than the members of this body 
 [Senate] can refuse, when the appointed day arrives, to meet the 
 members of the other House, to count the votes for those officers, 
 and to ascertain who are chosen. In both cases, the duty binds, 
 and with equal strength, the conscience of the individual member, 
 and it is imposed on all by an oath in the very same words. Let 
 it then never be said, Sir, that it is a matter of discretion with 
 the States whether they will continue the government, or break 
 it. up by refusing to appoint Senators and Electors. They have 
 no discretion in the matter. The members of the legislatures can- 
 not avoid doing either, so often as the time arrives, without a 
 direct violation of their duty and their oaths ; such a violation as 
 would break up any other government." 
 
 The correctness of the reasoning of V\'ebster may be granted, 
 and yet the fact remains that however great a moral obligation 
 there may be upon the individual members of the several state 
 governments to take such action as is necessary to equip the Fed- 
 eral Government with the officials necessary for its' operation, 
 there exists no legal means, by an issue of mandamus or other- 
 wise, to compel such action when refused, 
 
 244. Election of Senators. 
 
 The Constitution provides that Senators in the federal Congress 
 shall be chosen by the legislatures of the several States, and that 
 " the times, places, and manner of holding elections for Senators 
 and Representatives shall be prescribed in each State by the legis- 
 lature thereof; but that Congress may at any time by law make 
 or alter such regulations, except as to the places of choosing 
 Senators." 
 
 Xot until 18G6 did Congress exercise the control over the elec- 
 tion of -Senators thus given it Prior to that date the Senate had 
 recognized the validity of elections based on majority votes in 
 joint conventions of the two houses of the state legislatures, where 
 a concurrent choice of the two houses sitting separately was not 
 obtained. It was held, however, in the case of James Harlun,
 
 558 UNITED STATES CONSTITUTIONAL LAW. 
 
 1857, that in such joint conventions a quorum of both houses must 
 be present. 
 
 By the act of 1866 the entire matter was federally determined. 
 The text of the law is given below. 40 
 
 In the case of James B. Eustis, the Senate held that, under this 
 law, an election made by a majority vote in a joint convention was 
 
 Rev. Stat., 14-19. 
 
 " 14. The legislature of each State which is chosen next preceding the 
 expiration of the time for which any Senator was elected to represent such 
 State in Congress shall, on the second Tuesday after the meeting and organiza- 
 tion thereof, proceed to elect a Senator in Congress. 
 
 15. Such election shall be conducted in the following manner: Each 
 house shall openly by vi-va-voce vote of each member present, name one person 
 for Senator in Congress from such 'State, and the name of the person so voted 
 for, who receives a majority of the whole number of votes cast in each house, 
 shall be entered on the journal of that house by the clerk or secretary 
 thereof; or if either house fails to give such majority to any person on that 
 day, the fact shall be entered on the journal. At twelve o'clock meridian 
 of the day following that on which proceedings are required to take place 
 as aforesaid, the members of the two houses shall convene in joint assembly, 
 and the journal of each house shall then be read, and if the same person 
 has received a majority of all the votes in each house, he shall be declared 
 duly elected Senator. But if the same person has not received a majority 
 of the votes in each house, or if either house has failed to take proceedings 
 as required by this section, the joint assembly shall then proceed to choose, 
 by a viva-voce vote of each member present, a person for Senator, and the 
 person who receives a majority of all the votes of the joint assembly, a 
 majority of all the members elected to both houses being present and voting, 
 shall be declared duly elected. If no person receives such majority on the 
 first day, the joint assembly shall meet at twelve o'clock meridian of each 
 succeeding day during the session of the legislature, and shall take at least 
 one vote, until a Senator is elected." 
 
 16. Whenever on the meeting of the legislature of any State a 
 vacancy exists in the representation of such State in the Senate, the legis- 
 lature shall proceed, on the second Tuesday after meeting and organization, 
 to elect a person to fill such vacancy, in the manner prescribed in the pre- 
 ceding section for the election of a Senator for a full term. 
 
 17. Whenever during the session of the legislature of any State a 
 vacancy occurs in the representation of such State in the Senate, similar 
 proceedings to fill such vacancy shall be had on the second Tuesday after the 
 legislature has organized and has notice of such vacancy. 
 
 18. It shall be the duty of the executive of the State from which any 
 Senator has been chosen, to certify his election, under the seal of the State, 
 to the President of the Senate of the United States. 
 
 19. The certificate mentioned in the preceding section shall be counter- 
 signed by the secretary of state of the State.
 
 ELECTION OF MEMBERS OF CONGRESS. 550 
 
 valid, even though there was not present a quorum of one of the 
 houses. 
 
 When there is a dispute as to which of two contesting state 
 bodies is the de jure legislature, the United States Senate, while 
 having the power to exercise its own judgment will ordinarily 
 recognize that body which is accepted as de jure by the other 
 state authorities. 
 
 245. Popular Election of Senators. 
 
 The constitutional provision that Senators shall in each State 
 be elected by the legislature thereof has, in a number of instances, 
 been practically evaded by state laws or party regulations provid- 
 ing either that the people shall by popular vote indicate their 
 choice for 'Senators, such indication being in practice, if not 
 legally, binding upon the members of the state legislature ; or that 
 each political party shall in a primary vote indicate its choice, 
 which choice in effect binds the party's Representatives in the 
 state legislature.* 1 
 
 246. Vacancies in the Senate. 
 
 It is provided by the Constitution that if vacancies in the Sen- 
 ate " happen by resignation or otherwise, during the recess of the 
 legislature of any State, the executive thereof may make tempo- 
 rary appointments until the next meeting of the legislature, which 
 shall then h'll such vacancies." 
 
 There has been considerable difference of opinion as to the 
 proper construction to be given to the term " happen " as em- 
 ployed in the foregoing constitutional clause. By some it has 
 been argued that a vacancy " happens " whenever, -for any 
 reason whatever, there is a vacancy in the representation of a 
 State in the Senate. By others, it is asserted, that where a state 
 legislature has had the opportunity to elect a Senator and has 
 failed to do so, it cannot be said that a vacancy has " happened " 
 but that it has been present and brought about by the non-action 
 of the state electoral body, and that that bcdy has thus implies! !v 
 
 <i See Haynes, The Election of Senators. Also Sen. Rep. 530, 54th Cong., 
 1st Sess. ; and Sen. Doc. 400, 57th Cong., 1st Sess.
 
 560 UXITED STATES CONSTITUTIONAL, LAW. 
 
 shown that it does not desire the vacancy to be filled. This was 
 the position taken by the Senate in 1900 in the case of Senator 
 Quay from Pennsylvania. The Committee on Privileges and 
 Elections, in its report to the Senate recommending this action, 
 after stating the facts, said: "It -will thus be seen that tlie va- 
 cancy, which the Governor of Pennsylvania has here attempted 
 to provide for by a temporary appointment, was one which was 
 foreseen, one which was caused by the expiration of a prior term, 
 one which occurred while the legislature of Pennsylvania was in 
 session, and one which that legislature had an opportunity of fill- 
 ing before it occurred, in the interim between the date of the oc- 
 <rurrence and the appointment of the Governor. Under these 
 facts we think that the appointment is invalid. . . . After a 
 vacancy in the office of United States Senator occurs or comes to 
 pass, if the next legislature does not fill it, it continues to exist. 
 It is the same vacancy, not a new one. Xow the state executive 
 is given power to make temporary appointments in case of a 
 vacancy not as long as it continues or exists, but only until the 
 next meeting of the legislature, which is then required to fill the 
 vacancy. This clearly means that the paramount intent to have 
 the legislature choose the Senators is to prevail, and that, when- 
 ever the legislature has had the opportunity to fill the vacancy, 
 either before or after it occurs, the executive has no power to 
 appoint." 42 
 
 The senatorial practice has not been uniform in respect to 
 executive appointments to fill vacancies, but the action in the 
 Quay case has probably determined the doctrine for the future. 
 
 247. Vacancies in the House of Representatives. 
 
 When vacancies happen in the representation from any State, 
 it is provided that the executive authority thereof shall issue 
 writs of election to fill such vacancies. 
 
 Vacancies are occasioned by death, by resignation, or by ac- 
 ceptance of a disqualifying office. 43 
 
 Sen. Rpt. 153, 56th Cong., 1st Sess. 
 Van Xess Case, a. & H. 122.
 
 CHAPTER. XXXIX. 
 
 THE PROCESS OF LEGISLATION AS CONSTITUTIONALLY 
 DETERMINED. 
 
 248. Constitutional Provisions. 
 
 To a certain extent the manner of conducting business in Con- 
 gress, and the process of legislation are determined by the Consti- 
 tution. It is provided that the Vice-President shall be the 
 president of the Senate, but shall have no vote except in case of 
 a tie. The Senate, however, is empowered to choose its other 
 officers, including the president pro tempore to preside in the 
 absence of the Vice-President or when he is exercising the office 
 of President of the United States. The House is empowered 
 to choose all of the officers, including its presiding officer, the 
 Speaker. 
 
 It is required that Congress shall assemble at least once in 
 every year, and that such meeting shall be on the first Monday in 
 December, unless by law a different day is appointed. 
 
 A majority of each House is fixed as a quorum to do business, 
 but a smaller number is competent to adjourn from day to day, 
 and to compel the attendance of absent members in such manner 
 and under such penalties as each House may provide. 
 
 Each House is authorized to determine the rules of its pro- 
 cedure, to punish its members for disorderly behavior, and, as we 
 have seen, with the concurrence of two-thirds to expel a member. 
 
 X either House may, without the consent of the other House, 
 during a session of Congress adjourn for more than three days, 
 nor to any other place than that in which the Houses are sitting. 
 
 Jvach Houae is required to keep a journal of its proceedings, 
 and from time to time to publish the same, excepting such parts 
 as may in their judgment require secrecy; and it is ordered that, 
 at the desire of one-fifth of those present, the yeas and nays of 
 members of either House on any question shall be entered on this 
 journal. 
 
 [561] 
 
 36
 
 562 UNITED STATES CONSTITUTIONAL LAW. 
 
 The foregoing constitutional provisions impose duties upon and 
 grant powers to the two Houses of Congress, the fulfilment and 
 exercise of which are placed within the discretion of the Houses 
 themselves. Very few questions arising under these clauses have, 
 therefore, been, or could have been, brought before the courts. 
 One important point has, however, been raised and deserves at- 
 tention. This is discussed in the next section. 
 
 249. Conclusiveness of the Records of Congressional Pro- 
 ceedings. 
 
 In a few instances the validity of laws purported to have been 
 enacted by Congress has been questioned upon the ground that 
 they have not, in fact, been enacted by that body in accordance 
 with the requirements of the Constitution. This has necessitated 
 the examination of the records of the proceedings of Congress and 
 a determination of the evidential value to be given to these pro- 
 ceedings. 
 
 In Field v. Clark 1 it was contended by the appellants that an 
 enrolled act in the custody of the Secretary of State, and appear- 
 ing upon its face to be a law enacted by Congress, was a nullity, 
 because, as was shown by the records of proceedings in Congress, 
 and the reports of committees, including that of 'the committee 
 on conference, a section of the bill as finally passed was not in the 
 bill authenticated by the signatures of the presiding officers of the 
 two Houses and signed by the President. The court, however, 
 declared that the attestation of the Speaker of the House and of 
 the President of the .Senate, the signature of the President of the 
 United States, and the deposit of a measure as a law in the public 
 archives are to be taken as unimpeachable evidence that the consti- 
 tutional requirements for legislation have been satisfied, and that 
 the measure as thus certified to has received the approval of the 
 legislative branch of the government. The opinion concludes: 
 " We are of the opinion, for the reasons stated, that it is not 
 competent for the appellants to show, from the journals of either 
 House, from the reports of committees, or from other documents, 
 
 i 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.
 
 LEGISLATION AS CONSTITUTIONALLY DETERMINED. 563 
 
 printed bj authority of Congress, that the enrolled bill, designated 
 ' H. R. 9416,' as finally passed, contained a section that does not 
 appear in the enrolled Act in the custody of the State Depart- 
 ment." 
 
 In United States v. Ballin 2 the evidential value of records of 
 congressional proceedings was again considered. The points in- 
 volved and 'their decision sufficiently appear from the following 
 quotation from the opinion : " Two questions only are presented : 
 first, was the Act of May 9, 1890, legally passed and, second, 
 what is the meaning? The first is the important question. The 
 enrolled bill is found in the proper office, that of the Secretary of 
 State, authenticated and approved in the customary and legal 
 form. There is nothing on the face of it to suggest any invalidity. 
 Is there anything in the facts disclosed by the journal of the 
 House, as found by the general appraisers, which vitiates it ? We 
 are not unmindful of the general observations found in Gardner 
 v. Barney (6 Wall. 499; 18 L. ed. 890) 'that whenever a ques- 
 tion arises in a court of law of the existence of a statute, or of the 
 time when a statute took effect, or of the precise terms of a stat- 
 ute, the judges who are called upon to decide it have a right to 
 resort to any source of information which in its nature is capable 
 of conveying to the judicial mind a clear and satisfactory answer 
 to such question ; always seeking first for that which in its nature 
 is most appropriate, unless the positive law has enacted a different 
 rule.' And we have at the present term, in the -case of Field v. 
 Clark, had occasion to consider the subject of an appeal to the 
 journal in a disputed matter of this nature. It is unnecessary to 
 add anything here to that general discussion. The Constitution 
 (Article I, 'Section 5") provides that ' each House shall keep a 
 journal of its proceedings;' and that 'the yeas and nays of the 
 members of either House on any question shall at the desire of one- 
 fifth of those present, be entered on the journal.' Assuming that 
 by reason of this latter clause reference may be had to the journal, 
 to see whether the yca.s and nays were ordered, and if so what 
 was the vote disclosed therein-; and assuming, though without 
 
 2144 U. S. 1; 12 Sup. Ct. Rep. 507; 36 L. ed. 321.
 
 56-i UNITED STATES CONSTITUTIONAL LAW. 
 
 deciding, that the facts which the Constitution requires to be 
 placed on the journal may be appealed to on the question whether 
 a law has been legally enacted, yet if reference may be had to 
 such journal, it must be assumed to speak the truth. It cannot 
 be that we can refer to the journal for the purpose of impeach- 
 ing a statute properly authenticated and approved and then sup- 
 plement and strengthen that impeachment by parol evidence that 
 the facts stated on the journal are not true, or that other facts 
 existed which, if stated on the journal, would give force to the 
 impeachment." 3 
 
 250. Constitutional Force of Rules of the House and Senate. 
 In United States v. Ballin was also raised an interesting ques- 
 tion as to the constitutional validity of a certain rule of procedure 
 adopted by the House of Representatives. As to this the court, in 
 its opinion, say : "The Constitution . . . provides, that ' each 
 House may determine the rules of its proceedings.' It appears 
 that, in pursuance of this authority, the House had. prior to that 
 day, passed this as one of its rules : Rule XV. t On the demand 
 of any member, or at the suggestion of the Speaker, the names 
 of members sufficient to make a quorum in the hall of the House 
 who do not vote shall be noted by the clerk and recorded in the 
 journal, and reported to the Speaker with the names of the per- 
 sons voting, and be counted and announced in determining the 
 presence of a quorum to do business.' (House Journal, 230, Feb. 
 14, 1890.) The action taken was in direct compliance with this 
 rule. The question, therefore, is as to the validity of this rule, 
 and not what methods the Speaker may of his own motion resort to 
 
 3 With reference to laws of the States, the Supreme Court in Duncan v. 
 MrCall (139 U. S. 449; 11 Sup. Ct. Rep. 573; 35 L. ed. 219) say: "It is 
 unnecessary to enter upon an examination of the rulings in the different 
 States upon the qxiestion whether a statute duly authenticated, approved and 
 enrolled can be impeached by resort to the journals of the legislature, or 
 other evidence, for the purpose of establishing that it was not passed in the 
 manner prescribed by the state Constitution. The decisions are numerous and 
 the results reached fail of uniformity. The courts of the United Stnts 
 necessarily adopt the adjudication of the state courts on the subject " 
 [citing cases].
 
 LEGISLATION AS CONSTITTTIDNALLY DETERMINED. 866 
 
 for determining the presence of a quorum, nor what matters the 
 Speaker or clerk of their own volition place upon the journaL 
 Xeither do the advantages or disadvantages, the wisdom or folly, 
 of such a rule present any matters for judicial consideration. AVith 
 the courts the question is only one of power. The Constitution 
 empowers each House to determine its. rules of proceedings. It 
 may not l>y its rules ignore constitutional restraints or violate 
 fundamental rights, and there should be a reasonable relation be- 
 tween the mode or method of proceeding established by the rule 
 and the result which is sought to be attained. But within these 
 limitations all matters of method are open to the determination 
 of the House, and it is no impeachment of the rule to say that 
 some other method would be better, more accurate, or even more 
 just. It is no objection to*the validity of a rule that a diiferent 
 one has been prescribed and in force for a length of time. The 
 power to make rules is not one which once exercised is exhausted. 
 It is a continuous power, always subject to be exercised by the 
 House, and within the limitations suggested, absolute and beyond 
 the challenge of any other body or tribunal. The Constitution 
 provides that ' a majority of each [House] shall constitute a 
 quorum to do business.' In other words, when a majority are 
 present, the House is in a position to do business. Its capacity 
 to transact business is then established, created by the mere pres- 
 ence of a majority, and when that majority are present VAC power 
 of the House arises. But how shall the presence of a majority be 
 determined ? The Constitution has prescribed no method of mak- 
 ing this determination, and it is therefore within the competence 
 of the House to prescribe any method which shall be reasonably 
 certain to ascertain the fact. It may prescribe answer to roli- 
 call as the only method of determination; or require the passage 
 of members between tellers, and their count as the sole test; or 
 the count of the Speaker and the clerk, and an announcement from 
 the desk of the names of those who are present. Any one of these 
 nu-thods, it must be conceded, is reasonably certain of ascertain- 
 ing the fact, and as there is no constitutional method prescribed, 
 and no constitutional inhibition of any of those, and no violation
 
 566 UNITED STATES CONSTITUTIONAL LAW. 
 
 of fundamental rights in any, it follows that the House may adopt 
 either or all, or it may provide for a combination of any two of 
 the methods. That was done by the rule in question ; and all that 
 rule attempts to do is to prescribe a method for ascertaining the 
 presence of a majority, and thus establishing the fact that the 
 House is in a condition to transact business. As it appears from 
 the journal, at the time this bill passed the House there was 
 present a majority, a quorum, and the House was authorized to 
 transact any and all business. It was in a condition to act on the 
 bill if it desired. The other branch of the question is, whether, 
 a quorum being present, the bill received a sufficient number of 
 votes; and here the general rule of all parliamentary bodies is 
 that, when a quorum is present, the act of a majority of the 
 quorum is the act of the body." 
 
 251. Revenue Measures. 
 
 The Constitution provides that " 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." 
 
 This provision has given rise to frequent controversies between 
 the two Houses of Congress, but has but seldom been passed upon 
 by the courts. No formal definition of a revenue measure has 
 been given by the Supreme Court, but in Twin City Xational 
 Bank v. Nebeker 4 the court, in effect, held that a bill, the primary 
 purpose of which is not the raising of revenue, is not a measure 
 that must originate in the House, even though, incidentally, a 
 revenue will be derived by the United States from its execution. 
 
 The House has, upon a number of occasions, 5 refused to agree 
 to or consider senatorial amendments to revenue measures upon 
 the ground that the amendments have enlarged the scope or 
 changed the character of the measure as originated in the House. 
 The views held by the House and the Senate, respectively, regard- 
 ing what, in specific instances, should properly be termed revenue 
 measures and what proper amendments thereto, do not need to 
 
 167 U. S. 196; 17 Sup. Ct. Rep. 766; 42 L. ed. 134. 
 
 6 See Hinds, Precedents of the House of Representatives, Chapter XLV1I.
 
 LEGISLATION AS CONSTITUTIONALLY DETERMINED. 567 
 
 be stated in this treatise. They are set out at length in Mr. 
 Hinds' treatise. 6 Especially the House has denied, and the Senate 
 has insisted upon, its right to originate measures which repeal a 
 law or portion of a law imposing taxes, duties, imposts or excises. 
 
 252. Appropriation Acts. 
 
 It would seem that the Senate has full power to originate meas- 
 ures appropriating money from the federal treasury. This right 
 has at times been denied by certain members of the House, 7 but 
 the House has not itself formally adopted this negative view. 
 
 253. Presidential Participation in Law Making. 
 
 The duties and powers of the President with reference to the 
 enactment of laws are stated in Clause 2 of Section VII of Article 
 I of the Constitution. This clause reads: Every bill which 
 shall have passed the House of Representatives and the Senate, 
 shall, before it become a law, be presented to the President of the 
 United States; if he approve he shall sign it, but if not he shall 
 return it, with his objections to that House in which it shall have 
 originated, who shall enter the 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." 
 
 6 Precedents of the House of Representatives. 
 
 7 See especially the views of the minority in House Report Xo. 147, 46tb 
 Cong., 3d Sess. ; also Hinds, 1500.
 
 568 UNITED STATES CONSTITUTIONAL LAW. 
 
 In an earlier chapter it has been pointed out that the foregoing 
 provisions have no application to amendments to the Constitution 
 proposed by Congress to the States for their approval or disap- 
 proval 
 
 254. Resolutions. 
 
 In the Fifty-fourth Congress, 2d Session, the Senate Committee 
 on the Judiciary was requested to report whether a certain resolu- 
 tion mentioned in a law should be in the form of a " joint resolu- 
 tion," and whether it was necessary that u concurrent resolutions " 
 should be submitted to the President of the United States. 
 
 In its report the committee, while admitting that Clause G, Sec- 
 tion VII of Article I of the Constitution, literally applied, would 
 make it necessary that every joint or concurrent resolution of 
 Congress, whatever its substance or intent, would have to be sub- 
 mitted to the President for his approval, go on to say that the 
 Constitution must look beyond the mere form of a resolution, to 
 its subject-matter, and that the words " to which the concurrence 
 of the Senate and House of Representatives may be necessary " 
 are to be construed to relate only to matters of legislation to which 
 the concurrent action of both Houses is by the Constitution made 
 absolutely necessary ; in short, only to legislative measures. Thus, 
 in general, joint resolutions need to be sent to the President; 
 concurrent resolutions do not. Of these latter the committee say: 
 " For over a hundred years . . . they have never been so pre- 
 sented. They have uniformly been regarded by all the Depart- 
 ments of the Government as matters peculiarly within the prov- 
 ince of Congress alone. They have never embraced legislative 
 decisions proper, and hence have never been deemed to require 
 executive approval. This practical construction of the Constitu- 
 tion, thus acquiesced in for a century, must be deemed the true 
 construction with which no court will interfere." 
 
 255. Parts of Bills May not Be Vetoed. 
 
 In those States whose Constitutions have not expressly given 
 the executive the power to approve parts, and disapprove the
 
 LEGISLATION AS CONSTITUTIONALLY DETERMINED. 569 
 
 remainder of bills, it has been uniformly held that he has not 
 the power. \Yhen, however, he has attempted to do so, the de- 
 cisions have been in conflict as to whether such partial approval 
 is no approval at all and amounts to a veto, or whether the entire 
 measure is to be treated as approved, the disapproval of the parts 
 being considered a nullity. 8 
 
 256. Riders. 
 
 The federal Executive has never attempted the exercise of, or 
 claimed, the right to veto parts of measures submitted to him by 
 Congress, and to approve the remainder. Because thus -bound 
 to accept or reject a bill as a whole, Congress has at times at- 
 tempted to force the hand of the President by incorporating into 
 a measure which it is known he will feel almost obligated to sign, 
 provisions which it is believed he would disapprove if submitted 
 to him as independent propositions. At times, however, these so- 
 called " riders " have led to the veto of the entire bill. President 
 Hayes returned without his approval several appropriation bills 
 which contained legislation which was not agreeable to him. 
 President Johnson returned the act of March 2, 1867 (Army 
 Appropriation Bill), with his signature, but in a message of pro- 
 test said: '" These provisions are contained in the second section, 
 which in certain cases virtually deprives the President of his 
 constitutional functions as Commander-in-chief of the army, and 
 in the sixth section which denies to ten States of the Union their 
 constitutional right to protect themselves in any emergency, by 
 means of their own militia. These provisions are out of place 
 in an appropriation act. I am compelled to defeat these necessary 
 appropriations if I withhold my signature from the act." 
 
 257. May Bills Be Signed by the President after the Adjourn- 
 
 ment of Congress? 
 
 As appears fruin the constitutional provision which has been 
 quoted, a men-lire, if n<>t returned to Congress within ten days. 
 
 Art. by -las. I). Burnett. " The Executive Control of the Legislature." 
 Am. Lair Itr,-.. XLI, 384.
 
 570 UNITED STATES CONSTITUTIONAL, LAW. 
 
 Sundays excepted, becomes a law without the President's signa- 
 ture. If, however, Congress adjourns before the expiration of the 
 ten days, the measure does not become a law and this is known 
 as a pocket veto. The question has, however, been several times 
 raised whether the President may not, if he desires the bill to 
 become a law, sign after the adjournment of Congress. 
 
 In 1824 President Monroe by inadvertence failed to sign a 
 bill before the adjournment of Congress and the question was 
 discussed by his Cabinet as to his right to sign, notwithstanding 
 the adjournment. Some difference of opinion being manifested, 
 the President decided not to sign. 
 
 In 1863 President Lincoln signed a bill eight days after Con- 
 gress had adjourned. At the next session of Congress the Judi- 
 ciary Committee of the House, having been instructed to con- 
 sider the constitutionality of this, unanimously reported that the 
 bill was not a law. No action was taken by the House upon this 
 report, but later substantially the same measure was re-enacted 
 by Congress and signed by the President. The committee, in its 
 report referred to, said : " The ten days' limitation ... re- 
 fers to the time during which Congress remains in session, and 
 has no application after adjournment. Hence if the Executive 
 can hold a bill ten days after adjournment and then approve it, 
 he can as well hold it ten months before approval. This would 
 render the laws of the country uncertain and could not have been 
 intended by the framers of the Constitution. The spirit of the 
 Constitution evidently requires the performance of every act nec- 
 essary to the enactment and approval of laws to be perfect before 
 the adjournment of Congress. " 
 
 9 In United States v. Weil (29 Ct. of Cl. 523) the Court of Claims held that 
 the Supreme Court had impliedly upheld the earlier act, signed after ad- 
 journment, by passing upon claims arising under it. However, it is to be 
 observed that the act was valid upon its face, and the point as to the date 
 of its signature was not raised, and the court was not Obliged to take 
 judicial cognizance of it. 
 
 Professor Barnett in an article in the Am. Law Rev., XLI, 230, entitled 
 " The Executive Control of the Legislature," and Mr. Eenick in an article 
 in the ame journal, XXXII, 208, entitled " The Power of the President to 
 Sign Bills after the Adjournment of Congress," give a full discussion of this
 
 LEGISLATION AS CONSTITUTIONALLY DETERMINED. . 571 
 
 258. Signing of Bills During Recess of Congress. 
 
 In the Weil case the court argued that the President might 
 sign during a recess of Congress even if he might not sign after 
 its adjournment, and this proposition was upheld by the Supreme 
 Court in La Abra Silver Mining Co. v. United States. 10 
 
 subject. They show that the decisions of the state courts with reference to 
 the signing of state bills by the governor after legislative adjournment are 
 in conflict, with the balance of authority, however, in support of the practice. 
 10175 U. S. 423; 20 Sup. Ct. Rep. 168; 44 L. ed. 223. "The ground of 
 this contention is that having met in regular session at the time appointed 
 by law, the first Monday of December, 1892, and having, on the 22d of that 
 month (two days after the presentation of the bill to the President) by 
 the joint action of the two Houses taken a recess to a named day, January 4, 
 1893, Congress was not actually sitting when the President, on the 28th 
 day of December, 1892, by signing it, formally approved the act in question. 
 The proposition, plainly stated, is that a bill passed by Congress and duly 
 presented to the President does not become a law if his approval be given 
 on a day when Congress is in recess. This implies that the constitutional 
 power of the President to approve a bill so as to make it a law is absolutely 
 suspended while Congress is in recess for a fixed time. It would follow from 
 this that if both Houses of Congress by their joint or separate action were 
 in recess from some Friday until the succeeding Monday, the President could 
 not exercise that power on the intervening Saturday. Indeed, according to 
 the argument of counsel the President could not effectively approve a bill 
 on any day when one of the Houses, by its own separate action, was legally 
 in recess for that day in order that necessary repairs be made in the room 
 in which its sessions were being held. Yet many public acts and joint resolu- 
 tions of great importance, together with many private acts, have been treated 
 as valid and enforceable, which were approved by the President during the 
 recesses of Congress covering the Christmas holidays. In the margin will 
 be found a reference to some of the more recent of those statutes. Do the 
 words of the Constitution, reasonably interpreted, sustain the views advanced 
 for appellant? . . . It is said that the approval by the President of a 
 bill passed by Congress is not strictly an executive function, but is legis- 
 lative in its nature; and this view, it is argued, conclusively shows that his 
 approval can legally occur only on a day when both Houses are actually 
 sitting in the performance of legislative functions. Undoubtedly the Presi- 
 dent when approving bills passed by Congress may be said to participate 
 in the enactment of laws which the Constitution requires him to execute. 
 But that consideration does not determine the question before us. As the 
 Constitution, while authorizing the President to perform certain functions of 
 a limited number that are legislative in their general nature, does not re- 
 strict the exercise of those functions to the particular days on which the 
 two Houses of Congress are actually sitting in the transaction of public 
 businaps, the court cannot impose such a restriction upon the Executive.
 
 572 UNITED STATES CONSTITUTIONAL LAW. 
 
 It is made 'liis duty by the Constitution to examine and act upon every 
 bill passed by Congress. The time within which he must approve or dis- 
 approve a bill is prescribed. If he approve a bill, it is made his duty to 
 sign it. The Constitution is silent as to the time of his signing, except 
 that his approval of a bill duly presented to him if the bill is to become a 
 law merely by virtue of such approval must be manifested by his signature 
 within ten days, Sundays excepted, after the bill has been presented to him. 
 It necessarily results that a "bill when so signed becomes from that moment 
 a law. But in order that his refusal or failure to act may not defeat 
 the will of the people, as expressed by Congress, if a bill be not approved 
 and be not returned to the House in which it originated within that time, 
 it becomes a law in like manner as if it had teen signed by him. We 
 perceive nothing in these constitutional provisions making the approval of 
 a bill by the President a nullity if such approval occurs while the two 
 ' Houses of Congress are in recess for a named time. After the bill has been 
 presented to the President, no further action is required by Congress in 
 respect of that bill, unless it be disapproved by him and within the time 
 prescribed by the Constitution be returned for reconsideration. It has prop- 
 erly been the practice of the President to inform Congress by message of 
 his approval of bills, so that the fact may be recorded. But the essential 
 thing to be done in order that a bill may become a law by the approval 
 of the President is that it be signed within the prescribed time after being 
 presented to him. That being done, and as soon as done, whether Congress 
 is informed or not by the message from the President of the fact of his 
 approval of it, the bill becomes a law, and is delivered to the Secretary of 
 State as required by law. Much of the argument of counsel seems to rest 
 upon the provision in relation to the final adjournment of Congress for 
 the session whereby the President is prevented from returning, within the 
 period prescribed by the Constitution, a bill that he disapproves and is 
 unwilling to sign. But the Constitution places the approval and disapproval 
 of bills, as to their becoming laws, upon a different basis. If the President 
 does not approve a bill, he is required within a named time to send 
 it back for consideration. But if by its action, after the presentation of 
 a bill to the President during the time given him by the Constitution for 
 an examination of its provisions and for approving it by his signature, 
 Congress puts it out of his power to return it, not, approved, within that 
 time to the House in which it originated, then the bill falls, and does not 
 become a law. Whether the President can sign a bill after the final adjourn- 
 ment of Congress for the session is a question not- arising in this case, and 
 has not been considered or decided by us. We adjudge and touching this 
 branch of the case adjudge nothing more that the act of 1892 having 
 been presented to the President while Congress was sitting, and having been 
 signed by him when Congress was in recess for a specified time, but within 
 ten days, 'Sundays excepted, after it was so presented to him, was effectively 
 approved, and immediately became a law, unless its provisions are repug- 
 nant to the Constitution."
 
 CHAPTEK XL. 
 
 THE GENERAL POWERS OF CONGRESS. 
 259. General Powers. 
 
 In the chapters which are immediately to follow will be taken 
 up seriatim the legislative powers of Congress except in so far 
 as these powers have been considered incidentally elsewhere in 
 this treatise. 
 
 In addition to its legislative powers the Houses of Congress 
 have certain other powers, judicial or executive in character, such 
 as, for example, with reference to impeachments, to punishing 
 their members for disorderly conduct, or their expulsion if neces- 
 sary, the determination of contested elections, etc. Each House 
 of Congress has also, it has been held, the power to obtain the 
 information necessary for an intelligent exercise of its law- 
 making power, and for this purpose to summon witnesses, and 
 compel the production of documents, and to punish as contempt 
 disobedience to orders thus given. These non-legislative duties 
 are discussed elsewhere in this treatise, and especially in the 
 chapters dealing with the Separation of Powers. 
 
 In some cases the powers granted by the Constitution are also 
 made obligations, and, in general, it may be said that where legis- 
 lation is necessary to make effective the provisions of the Consti- 
 tution there is laid upon Congress the constitutional obligation 
 to enact this legislation. At the same time it must be said that 
 this obligation is an ''imperfect" one in that no legal means 
 exist for compelling its performance or providing for what shall 
 be done in the event of its non-performance. Thus the Constitu- 
 tion provides that " The judicial power of the United States shall 
 be vested in one Supreme Court, and in such inferior courts as 
 Congress may from time to time ordain and establish." Should 
 Congress fail by legislation to establish these inferior judicial 
 tribunals and to clothe them with jurisdiction, there would be 
 no constitutional means of compelling it to do so. Indeed, by 
 
 [573]
 
 574 UNITED STATES CONSTITUTIONAL LAW. 
 
 failing as well to provide for the appointment and remuneration 
 of Justices of the Supreme Court, Congress might render impos- 
 sible the exercise of any federal judicial power whatever. Once 
 established the Supreme Court, by the immediate effect of con- 
 stitutional provision, has the original jurisdiction provided for in 
 Section II of Article I, but it is unable to exercise any appellate 
 jurisdiction by way of appeals either from the state or lower fed- 
 eral courts except as Congress has by statute provided. 
 
 This is but a single illustration of many that might be given 
 of the manner in which the existence and administration of the 
 federal government is absolutely dependent upon the action of 
 Congress. For it may he laid down as a principle which admits 
 of no exceptions that no legal means exist for compelling a legis- 
 lative body to enact a given piece of legislation, or, indeed, to 
 perform any of its functions. 
 
 Though, in many respects, not self-executory, and the obliga- 
 tions created by its provisions not enforceable by legal process, 
 the federal Constitution is, it is to be repeated, in all other re- 
 spects a law and directly enforceable as such in the courts of the 
 land. It is, as has been already said, a law legislatively enacted 
 by the state legislatures or the state conventions which, quoad hoc 
 acting as a national law-making body, established it and ratified 
 the amendments to it.
 
 CHAPTER XLI. 
 
 FEDERAL POWERS OF TAXATION. 
 
 260. Taxes Defined. 
 
 Taxes have been defined by an eminent authority to be "bur- 
 dens or charges imposed by the legislative .power upon persons or 
 property to raise money for public purposes." 1 The same author 
 in another work observes that they " differ from forced contribu- 
 tions, loans, and benevolences of arbitrary and tyrannical periods 
 in that they are levied by authority of law, and by some rule of 
 proportion which is intended to insure uniformity of contribu- 
 tion, and a just apportionment of the burdens of government." 2 
 
 The power to tax is ordinarily spoken of as an incident of 
 sovereignty, or, as a sovereign power. A more exact statement is, 
 however, that inasmuch as the raising of a certain amount of 
 revenue is essential to the existence and operation of a public 
 governing body, that body has, even in default of express consti- 
 tutional grant, an implied power to compel those subject to its 
 authority to contribute the financial means necessary for its 
 support. 
 
 The levying of a tax, that is to say, the determination that a 
 given tax shall be imposed, assessed and collected in a certain 
 manner, is a legislative function. In Meriwether v. Garrett 3 the 
 court say: " The levying of taxes is not a judicial act. It has 
 no elements of one. It is a high act of sovereignty, to be per- 
 formed only by the legislature upon considerations of policy, 
 necessity and the public welfare. In the distribution of the 
 powers of government in this country into three departments, the 
 power of taxation falls to the legislative. It belongs to that 
 
 1 Cooler, Constitutional Limitations, 7th ed., p. 678. 
 
 2 Taxation, Ch. I. 
 
 3102 U. S. 472; 20 L. ed. 197. 
 
 [575]
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 department to determine what measures shall be taken for the 
 public welfare, and to provide the revenues for the support and 
 due administration of the government throughout the State in 
 all its subdivisions. Having the sole power to authorize the tax, 
 it must equally possess the sole power to prescribe the means by 
 which the tax shall be collected, and to designate the officers 
 through whom its will shall be enforced." 
 
 The determination of the precise amount of the tax which 
 each individual or each piece of property shall pay according to 
 the general rule legislatively laid down, is an administrative act. 
 The determination whether the legislative rule is, constitutionally 
 speaking, a proper one, and whether the administrative officials 
 have properly followed it, as well as observed all the other require- 
 ments of law, is, of course, a judicial function. Thus the admin- 
 istrative official must in all cases, in his assessments both as to 
 classes of persons and kinds of property, and as to rates of taxa- 
 tion, be guided by the law. Upon the other hand the legislature, 
 when levying ad valorem taxes, has not the power itself, generally 
 speaking, to declare the value of a specific piece, or of specific 
 pieces of property for taxation purposes. 4 Where, however, taxes 
 are laid not according to values of property, but upon persons, as 
 a capitation tax, or upon occupations, as license fees and tolls, 
 or upon documents, as stamp duties, or upon number or quantities 
 of goods (" specific " taxes), the legislature fixes in each case the 
 amount of the contribution. 
 
 261. Taxation and Eminent Domain. 
 
 The levying and collection of taxes amounts, of course, to the 
 taking of private property for a public use, but the taxing power 
 is distinct from that of eminent domain. AYhen property is taken 
 in exercise of the latter power the Fifth Amendment requires 
 that the Federal Government shall make just compensation. 
 When, however, property is taken under the taxing power the 
 
 4 This question -will be further considered in connection with the subject 
 of special assessments.
 
 FEDERAL POWERS OF TAXATION. 577 
 
 persons so taxed are held compensated by the special benefits 
 received. Cooler observes that while taxation and eminent 
 domain rest upon substantially the same basis in that they both 
 imply the taking of private property for the public use, the com- 
 pensation made is different in the two cases. " When taxation 
 takes money for the public use, the taxpayer receives, or is sup- 
 posed to receive, his just compensation in the protection which 
 government affords to life, liberty, and property, in the public 
 conveniences which it provides, and in the increase in the value 
 of possessions which comes from use to which the government 
 applies the money raised by the tax; and these benefits amply 
 support the individual burden." 5 
 
 262. The Extent of the Taxing Power. 
 
 The power to tax is, from its very nature, one of the most 
 important powers possessed by the State. Aside from express 
 constitutional limitations, the power places every person, every 
 uccupation, and all forms of property subject to such pecuniary 
 burdens as the legislature may see fit to impose, the manner of 
 apportioning and enforcing the collections of the contributions 
 levied being within the discretion of the law-making body which 
 imposes them. 
 
 A classic statement of the extent of the taxing power is that 
 of Marshall in McCulloch v. Maryland. Marshall says: "The 
 power of taxing the people and their property is essential to the 
 very existence of government, and may be legitimately 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 legislature acts upon 
 its constituents. This is, in general, a sufficient security against 
 erroneous and oppressive taxation. The people of a State, there- 
 fore, give to their government a right of taxing themselves and 
 
 s Const. Lint., 7th ed., p. 715. 
 64 Wh. 316; 4 L. ed. 579. 
 
 37
 
 578 UNITED STATES CONSTITUTIONAL LAW. 
 
 their property, and as the exigencies of the government cannot 
 be limited, they prescribe no limit to the exercise of this right, 
 resting confidently on the interest of the legislator and on the 
 influence of the constituents over their representatives to guard 
 themselves against its abuse." " The power to tax," Marshall 
 concludes, " involves the power to destroy." 
 
 263. The Use of the Taxing Power, not for Revenue but for 
 Regulation. 
 
 By definition and by primary purpose a tax is a means whereby 
 a public governing power seeks to secure a revenue. It has been 
 generally held, however, that a tax may be levied avowedly and 
 exclusively not for revenue but as a means for regulating a matter 
 which is within the legislature's power to control. Thus in 
 VeazieBank v. Fenno 7 the power of Congress to levy a tax as a 
 means of regulating the currency is upheld, Chief Justice Chase 
 rendering the opinion. The court say : " Having thus, in the 
 exercise of undisputed constitutional powers, undertaken to pro- 
 vide a currency for the whole country, it cannot be questioned 
 that Congress may, constitutionally, secure the benefit of it to 
 the people by appropriate legislation. To this end, Congress has 
 denied the quality of legal tender to foreign coins, and has pro- 
 vided by law against the imposition of counterfeit and base coin 
 in the community. To the same end, Congress may restrain, by 
 suitable enactments, the circulation as money of any noes not 
 issued under its own authority. Without this power, indeed, it* 
 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 constitu- 
 tionality of the tax under consideration." 
 
 In the so-called Head Money Cases Edye v. Robertson 8 
 was contested an act of Congress of 1882 which, for the regula- 
 tion of immigration, imposed upon the owners of steam or sailing 
 vessels bringing passengers from a foreign port into the United 
 
 78 Wall. 533; 19 L. ed. 482. 
 
 8112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798.
 
 FEDERAL POWERS OF TAXATION. 579 
 
 States, a tax of fifty cents for every such passenger. To this 
 law it was objected that it was not levied to provfde for the com- 
 mon defense and general welfare of the Lnited States and that 
 it was not uniform throughout the United States as required by 
 the Constitution. After disposing of the question of uniformity, 
 the court say : " But the true answer to all these questions is, 
 that the power exercised in this instance is not the taxing power. 
 The burden imposed on the ship owner by this statute is the mere 
 incident of the regulation of commerce, of that branch of 
 foreign commerce which is involved in immigration. The title 
 of the Act, 'An Act to Regulate Immigration,' is well chosen. 
 It describes as well as any short sentence can describe it, the real 
 purpose and effect of the statute. Its provisions, from beginning 
 to end, relate to the subject of immigration, and they are aptly 
 designed to mitigate the evils inherent in the business of bring- 
 ing foreigners to this country, as those evils affect both the immi- 
 grant and the people among whom he is suddenly brought and 
 left to his own resources. It is true not much is said about pro- 
 tecting the ship owner. But he is the man who reaps the profit 
 from the transaction, who has the means to protect himself and 
 knows well how to do it, and whose obligations in the premises 
 need the aid of the statute for their enforcement. The sum 
 demanded of him is not, therefore, strictly speaking, a tax or 
 duty within the meaning of the Constitution. The money thus 
 raised, though paid into the Treasury, is appropriated in advance 
 to the uses of this statute, and does not go to the general support 
 of the government. It constitutes a fund raised from those who 
 are engaged in the transportation of these passengers, and who 
 make a profit out of it, for the temporary care of the passengers 
 whom they bring among us and for the protection of the citizens 
 among whom they are landed. If this is an expedient regula- 
 tion of commerce by Congress, and the end to be attained is one 
 falling within that power, the Act is not void because, within 
 a loose and more extended sense than was used in the Constitu- 
 tion, it is called a tax."
 
 580 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Packet Co. v. Keokuk, 9 and Packet Co. v. St. Louis' munic- 
 ipal ordinances imposing taxes for the use of wharves belonging 
 to the cities-, the amount of which was regulated by the tonnage 
 of the vessels, were held not to be tonnage taxes within the mean- 
 ing of. the constifutional provision that '' no State shall, without 
 the consent of Congress, lay any duty of tonnage," 
 
 In these cases it is seen that the view taken is that though the 
 laws levy a contribution to the State and thus result in a revenue 
 to the 'State, they are not, correctly speaking, tax laws at all. Xot 
 being, in fact, tax laws, they are not subject to the constitutional 
 limitations upon revenue measures as regards uniformity, appor- 
 tionment, etc. 
 
 A. different proposition from the one just discussed, is that a 
 legislature, by a law framed as a tax measure, may, in effect, 
 subject to regulation or even to destruction an enterprise over 
 which it has no direct power of control. This point was squarely 
 raised, with reference to the power of the Federal Government 
 in the comparatively recent case of McCray v. United States, 11 
 decided in 1904. 
 
 In this case was questioned the constitutionality of a law of 
 Congress levying a tax of ten cents a pound upon oleomargarine, 
 artificially colored to look like butter. The contention was that 
 this rate was so high as to be surely prohibitive of the manu- 
 facture and sale of such oleomargarine, and that, therefore, it 
 was to be presumed that the motive of those enacting the law 
 was not that a revenue should be secured for the Federal Govern- 
 ment, but that the manufacture should be prevented; and this, it 
 was argued, rendered the law an unconstitutional effort upon 
 the part of Congress to regulate the manufacture of a commodity 
 within the States. The Supreme Court, however, hold, that tho 
 law being upon its face a revenue measure, its ultimate effect or 
 the motives- of it? en actors might not be judicially inquired into. 
 The scope and effect of a law may be inquired into, the court say, 
 to determine whether the act is, in general character, within the 
 legislative power of Concrress, but. that determined in the anrrma- 
 
 95 U. S. 80: 24 L. ed. 377. 
 
 10 100 U. S. 423; 25 L - ed - 688 - 
 
 11 195 U. S. 27 24 Sup. Ct. Eop. 7459 ; 49 L. ed. 78.
 
 FEDERAL POWEBS OF TAXATION. 581 
 
 tive, the measure may not be invalidated because of consequences 
 that may arise from its enforcement. " Undoubtedly," the 
 opinion declares, '' in determining whether a particular act is 
 within the granted power, its scope and effect is to be considered. 
 Applying this rule to the acts assailed, it is self-evident that on 
 their face they levy an excise tax. This being their necessary- 
 scope and operation, it follows that the acts are within the grant 
 
 In Knowlton v. Moore 12 it was argued that inheritance taxes 
 levied by Congress were unconstitutional in that the effect of their 
 extreme enforcement would or might be to destroy the right "to 
 succession to property on the occasion of death, a subject beyond 
 the control of Congress. As to this the court say : " This principle 
 is pertinent only when there is no power to tax a particular sub- 
 ject, and has no relation to a case where such right exists. In 
 other words, the power to destroy, which may be the consequence 
 of taxation, is a reason only that the right to tax should be con- 
 fined to subjects which may be lawfully embraced therein, -even 
 athough it happens that in some particular instance no great harm 
 may be caused by the exercise of the taxing authority as to a sub- 
 ject which is beyond its scope. But this reasoning has no appli- 
 cation to a lawful tax, for if it had there would be an end of all 
 taxation; that is to say, if a lawful tax can be defeated because 
 the power which is manifested by its imposition may, when fur- 
 ther exercised, be destructive it would follow that every lawful 
 tax would become unlawful, and therefore no taxation whatever 
 could be levied." 13 
 
 The McCray case is, it will be seen, in one respect the opposite 
 of Veazie v. Fenno and the Head Money Ca?e. in that it holds 
 the law in question to be a tax law and constitutional because it 
 is such ; whereas, in the earlier cases, the law- were justified as 
 being, in real character, not revenue measures at all. and. there- 
 fore, not subject to the limitations constitutionally imposed upon 
 Congress when enacting revenue laws. 
 
 T7J T. S. 41; 20 Sup. Ct. Rep. 747: 44 L. ed. 960. 
 
 i" For a criticism of Mefrny v. United Stnte<=. see Michigan 7xi;r Jtrrinr, 
 
 VT. 277, article entitled "May r<>iiL'r"~s TJ-VV Money Exactions, Designated 
 
 ' Taxes,' Solely for the Purpose of Destruction "! "
 
 582 UNITED STATES CONSTITUTIONAL LAW. 
 
 264. Federal Powers of Taxation. 
 
 By section VIII of Article I of the Constitution, Congress is 
 given the general power " to lay and collect taxes, duties, im- 
 posts and excises." 14 
 
 265. " Tax," " Duty," " Impost," and " Excise " Defined. 
 
 Duty and impost have a broad signification which makes them 
 practically synonymous with the general term tax ; more generally, 
 however, they are given a narrower meaning according to which 
 they become equivalent to customs or customs dues, that is, to 
 taxes levied upon goods imported from foreign countries. 
 
 An excise is an inland tax upon manufacture or retail sale 
 of commodities. It is thus often termed a consumption tax. In 
 the United States the excise taxes are more generally known as 
 internal revenue duties. 15 
 
 The general power to levy taxes being given, the Constitution 
 enumerates duties, imposts and excises as the classes of taxes 
 which are to be levied uniformly throughout the United States. 13 
 
 266. Limitations Upon the Federal Taxing Power. 
 
 The power of taxation given to the Federal Government is com- 
 prehensive and complete, embracing all possible subjects and 
 modes of taxation except in so far as the Constitution, in other 
 clauses, expressly limits the power, or except in so far as limita- 
 tions may be implied from the general character of the American 
 constitutional system. The express , limitations are: (1) That 
 " all duties, imposts, and excises shall be uniform throughout the 
 United States;" 17 (2) that "no capitation or other direct tax 
 
 i< The clause continues : " to pay the debts and provide for the common 
 defense and general welfare of the United States." That this is not a gen- 
 eral grant of power to the United States to pay the debts and provide for 
 the common defense and general welfare, but is merely a statement of the 
 purpose for which the power to lay and collect taxes, etc., is granted. See 
 ante, Section 22. Cf. Story, Commentaries, 902-926; Tucker, Constitution, 
 222; The License Tax Cases, 5 Wall. 462; 18 L. ed. 497; Knowlton v. Moore, 
 178 U. S. 41 ; 20 Sup. Ct. Rep. 747 ; 44 L. ed. 969. 
 
 is For a discussion of the various definitions of excise, duty and impost, 
 see Pacific Insurance Co. v. Soule, 7 Wall. 433; 19 L. ed. 95. 
 
 "Hylton v. United States, 3 Dall. 171; 1 L. ed. 556. 
 
 "Art. I, Sec. VIII, Cl. 1.
 
 FEDERAL POWERS OF TAXATION. 583 
 
 shall be laid, unless in proportion to the census or enumeration 
 hereinbefore directed to be taken; 18 and (3) thai " no tax or duty 
 shall be laid on articles exported from any State. 19 
 
 The implied limitations upofTHieriederal taxing power are 
 those that relate to the general, if not absolute, exemption of 
 state governmental agencies from federal interference, whether 
 by way of taxation or otherwise, 20 and those arising out of all 
 the express limitations upon the Federal Government, which, of 
 course, are as operative when the Federal Government is exercis- 
 ing its taxing powers, as it is when employing any of the other 
 rights .possessed by it. Thus, for example, the United States 
 may not, under the guise of a tax, take property without due 
 process of law. 
 
 267. Due Process of Law and Taxation. 
 
 We have already seen that the taking of private property by 
 the State in exercise of the taxing power is not brought within 
 the constitutional requirement, applicable in the case of property 
 taken under the power of eminent domain, that direct pecuniary 
 compensation therefor shall be made. In like manner the_taking 
 of private property in the form of taxes, is not, in itself, a taking 
 of property without due process of law. 
 
 In Davidson v. Xew Orleans 21 the Supreme Court after con- 
 sidering the meaning of the phrase " due process of law " as em- 
 ployed in the Fourteenth Amendment, and after adverting to the 
 difficulty of stating affirmatively and completely the protection 
 afforded by it, go on to say that they can at least state some of 
 the cases which do not fall within its application, and among 
 these, they say, " we lay down the following propositions as 
 applicable to the case before us: that whenever by the laws of a 
 State, or by state authority, a tax, assessment, servitude, or other 
 burden is imposed upon property for the public use, whether it 
 be of the whole State or of some more limited portion of the 
 
 is Art. I, Sec. VII, Cl. 4. 
 19 Art. I, Sec. VIII, Cl. 5. 
 
 -r-tions 57-60. 
 2196 U. S. 97; 24 L. ed. 616
 
 58-1 UNITED STATES CONSTITUTIONAL LAW. 
 
 coinm unity, and those laws provide for a mode of confirming or 
 contesting the charge thus imposed, in the ordinary courts of 
 justice, with such notice to the person or such proceeding in 
 regard to the property as is appropriate to the nature of the case, 
 the judgment in such proceedings cannot be said to deprive the 
 owner of his property without due process of law, however 
 obnoxious it may be to other objections. It may violate some 
 provision of the state Constitution against unequal taxation, but 
 the .Federal Government imposes no restraints on the States in 
 that regard. . . . It is said that plaintiff's property had pre- 
 viously been assessed for the same purpose, and the assessment 
 paid. If this be meant to deny the right of the State to tax or 
 assess property twice for the same purpose, we know of no provi- 
 sion in the federal Constitution which forbids this, or which 
 forbids unequal taxation by the States. If the act under which 
 the former assessment was made is relied on as a contract against 
 further assessments for the same purpose, we concur with the 
 Supreme Court of Louisiana- in being unable to discover such a 
 contract." 
 
 From the foregoing it is apparent that the taking of private 
 property in the form of taxes is not, in itself, a taking of private 
 property without due process of law because no clireat compensa- 
 tion is made for the property thus taken. Though the taking of the 
 property in the form oj: a tax is thus not in itself a taking without 
 due process, it may become such by reason of the purpose for 
 which, or the manner in which, the tax is levied, assessed and 
 collected. 
 
 Due process of law obliges the United States as well as the 
 individual States, in the exercise of their taxing powers, to con- 
 form to the following rules : 
 
 1. That the tax shall be for a public purpose. 
 
 2. That it shall operate uniformly upon those subject to it 
 
 3. That either the person or the property taxed shall be within 
 the jurisdiction of the government levying the tax. 
 
 4. That in the assessment and collection of the tax certain 
 guarantees against injustice to individuals, especially by way of 
 notice and opportunity for a hearing, shall be provided.
 
 I;AI. I'owiars oi-- TAXATION. 585 
 
 28. Taxation Must Be for a Public Purpose. 
 
 A tax being in the eyes of the law an enforced contribution 
 upon persons or property to raise money for a public purpose, it 
 follows that where this public pur.pose is absent, the contri- 
 bution sought to be enforced cannot be justilied as a tax but 
 amounts to an attempt to take property without due process of 
 law. The validity of this proposition is beyond dispute, but 
 judicial records furnish comparatively few instances of tax levies 
 being held void for this reason. This is due, in the first place, 
 to the fact that not often do the laws expressly state the purpose 
 for which a tax is levied ; and, in the second place, where this pur- 
 pose is stated, the courts will, in deference to the legislative judg- 
 ment, construe the purpose to be a public one if it is possible to 
 do so. In Broadhead v. City of Milwaukee" 2 the Supreme Court 
 of Wisconsin say: "To justify the court in arresting the pro- 
 ceeding's and declaring the tax void the absence of all possible 
 public interest in the purpose for which the funds are raised 
 must be clear and palpable to every mind at the first blush." 
 
 A leading federal case with reference to this subject is that of 
 Loan Association v. Topeka.' 3 This case did not involve a law 
 levying a tax, but one authorizing towns to issue bonds payable 
 to private manufacturing companies to encourage and aid them 
 in establishing their plants within their respective limits. It was 
 held by the court that inasmuch as taxes would have to be levied 
 for the payment of these bonds, the law in effect attempted to 
 authorize the towns to lew taxes in aid and encouragement of a 
 private enterprise and was, therefore, void. In its opinion the 
 court say: " The subject of the aid voted to railroads by counties 
 and towns has been brought to the attention of the courts of 
 almost every State in the Union. It has been thoroughly dis- 
 - -d and is still the subject of discussion in those courts. It 
 is (jnite true that a decided preponderance of authority is to be 
 found in favor of the proposition that the legislatures of the 
 States, unles- rer-trifted by some special provisions of their ( 
 
 22 in Wis. 624. 
 
 -320 Wall. (MO: 22 L. od.
 
 586 UNITED STATES CONSTITUTIONAL LAW. 
 
 stitutions, may confer upon these municipal 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 were composed, while others 
 have decided against the existence of the power altogether. 
 State v. Wapello, 13 Iowa, 388; Hanson v. Vernon, 27 la. 
 2-8; Sharpless v. Mayor, 24 Pa. St. 147; Whiting r. Fond 
 du Lac, 25 Wis. 188. In all these cases, however, the de- 
 cision 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 as 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 argument in opposition 
 to this power has been, that railroads built by corporations organ- 
 ized mainly for the purpose of gain the roads which they built 
 being under their control, and not that of the State were pri- 
 vate 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, navi- 
 gable streams and all other highways had in all times been matter 
 of public concern. That such channels of travel and of the carry- 
 ing business had always been established, improved, regulated by 
 the State, and that the railroad had not lost this character, because 
 constructed by private enterprise, aggregated into a corporation. 
 We are not prepared to say that the latter view of it is not the
 
 FEDERAL POWERS OF TAXATION. 587 
 
 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 proposi- 
 tion. Of the disastrous consequences which have followed its 
 recognition by the courts and which were predicted when it was 
 first established there can be no doubt. But in the case before 
 us, in which the towns are authorized 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 purpose 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 employs 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 con- 
 tributions. Xo line can be drawn in favor of the manufacturer 
 which would not open the coffers of the public treasury to the 
 importunities of two-thirds of the business men of the city or 
 town." 
 
 The purpose for which local governing bodies may be author- 
 ized to lay and collect taxes must be not only public in character, 
 but must, generally speaking, relate strictly to the locality con- 
 cerned. In other words, a State may not compel a local body to 
 levy a local tax for the benefit wholly or in considerable part of 
 another community. 24 
 
 24 In Morford v. Unger (8 Iowa. 82) the Supreme Court of Iowa say: " Con- 
 coding to the General Assembly a wide range of discretion as to the objects 
 of taxation, the kind of property to be made liable, and the extent of 
 the territory within which the local tax may operate, there must be some 
 limit to this legislative discretion, which, in the absence of any other criterion, 
 is held to consist in the discrimination to be made between what may 
 reasonably be deemed a just tax, one which ft just compensation is pro- 
 vided in the objects to which it is to bo devoted, and that which is palpably 
 not a tax, but which, under the form of a tax. is the taking of private prop- 
 erty for the public use without just compensation. If there be such a 
 flagrant and palpable departure from equality in the burden imposed, if it be 
 imposed for the benefit of others, and for purposes in which those objecting 
 have no interest, and are, therefore, not bound to contribute, it is no matter
 
 588 UNITED STATES CONSTITUTIONAL, LAW. 
 
 269. Power of Congress to Appropriate Money. 
 
 A parity of reasoning would seem to provide the principle that 
 inasmuch as taxes must be for a public purpose, an appropriation 
 f the proceeds of taxes should be for a public purpose. Further- 
 more, it would seem to be not unreasonable to argue that the 
 Federal Government being one of limited enumerated powers. 
 Congress has not the authority to appropriate money except as 
 required for the performance of the duties thus constitutionally 
 laid upon it. In fact, however, the limitation that an appropria- 
 tion should be for a public purpose has been without practical 
 effect, as the courts have in no case attempted to hold invalid an 
 appropriation by Congress on the ground that it has been for a 
 purpose not public in character; and, as regards the restriction 
 that appropriations shall be in aid of enterprises which the Fed- 
 eral Government is empowered to undertake, the doctrine lias 
 become an established one that Congress may appropriate money 
 in aid of matters which the Federal Government is not consti- 
 tutionally able to administer and regulate. 
 
 The authority of Congress to appropriate money for internal 
 improvements within a State, although the Federal Government 
 has not itself the authority to construct or operate such improve- 
 ments, is discussed by President Monroe in connection with the 
 veto in 1822 of the Cumberland Road Bill, and by President 
 Jackson in his veto in 1830 of the Maysville Turnpike Bill. 
 
 In a paper entitled " Views of the President of the United 
 States on the Subject of Internal Improvements," submitted in 
 connection with his veto, President Monroe takes the position that 
 though Congress has not the constitutional power to provide for 
 the construction or operation under federal direction of reads, 
 canals or other internal improvements within the States, it has 
 
 the power to appropriate money in aid of such improvements. 
 
 a : . 
 
 in what form the power is exercised whether in the unequal levy of the 
 tax, or in the regulation of the boundaries of local government, which re- 
 sults in subjecting the party unjustly to local taxe*. it must bo regarded 
 as coming within the prohibition of the Constitution designed to protect 
 private rights against aggression, however made, and whether under the 
 color of recognized power or not." Cf. MeGehee, Due Process of Laic, 231.
 
 FEDEKAL POWERS OF TAXATION. 589 
 
 The constitutional grant to Congress of 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," he very correctly argues does not operate to vest 
 in the General Government any additional powers of control, but 
 solely to authorize that government to raise revenues and to 
 appropriate money to the purposes specified. These purposes, 
 however, he maintains, are broad enough to enable Congress to 
 appropriate money in aid of enterprises which the- General Gov- 
 ernment cannot undertake or directly control. 20 
 
 25 Monroe's argument is as follows : "A power to lay and collect taxes, 
 duties, imposts and excises, subjects to the call of Congress every branch of 
 the public revenue, internal and external, and the addition to pay the debts 
 and provide for the common defense and general welfare gives the right of 
 applying the money raised that is, of appropriating it to the purposes 
 specified according to a proper construction of the terms. Hence it follows 
 that it is the first part of the clause only which gives a power which affects 
 in any manner the power remaining to the States, as the power to raise 
 money from the people, whether it be by taxes, duties, imposts, or excises, 
 though concurrent in the States as to taxes and excises, must necessarily do. 
 But the use or application of the money after it is raised is a power alto- 
 gether of a different character. It imposes no burden on the people, nor can 
 it act on them in a sense to take power from the States or in any sense 
 in which power can be controverted, or become a question between the two 
 Governments. The application of money raised under a lawful power is a 
 right or grant which may be abused. It may be applied partially among 
 the 'States, or to improper ptirposea in our foreign and domestic concerns ; 
 but still it is a power not felt in the sense of other power, since the only 
 complaint whk-h any State can make of such partiality and abuse is that 
 some other State or States have obtained greater benefit from the applica- 
 tion than by a just rule of apportionment they were entitled to. The right 
 of appropriation is therefore from its nature secondary and incidental to the 
 right of raising moiu'v, and it was proper to place it in the same grant and 
 same clause with that right. By finding them, then, in that order we see a 
 new proof of the sense in which the grant was made, corresponding with the 
 view herein taken of it." 
 
 Having explained that the grant is one of simply a power to appropriate, 
 M' nroe then considers the extent to which this power may be carried. He 
 writes: "It is contended on the one side that as the National Government 
 is a government of limited powers it has no right to expend money except in 
 the performance of acts authorized by other specific grants according to a 
 strict construction of their powers; that this grant in neither of its branches 
 gives to Congress discretionary power of any kind, but is a mere instrument 
 in its hands to carry into effect the powers contained in the other grants.
 
 590 UNITED STATES CONSTITUTIONAL LAW. 
 
 ]*n President Jackson's veto of the Itaysville Road Bill prac- 
 tically the same constitutional position as that taken by Monroe 
 is assumed; the Appropriation in this case, however, is vetoed 
 upon the ground that the improvement in question was, in the 
 
 To this construction I was inclined in the more early stage of our Govern- 
 ment; but on further reflection and observation my mind has undergone a 
 change, for reasons which I will frankly unfold. The grant consists, as here- 
 tofore observed, of a twofold power the first to raise, the second to appro- 
 priate, the public money and the terms used in both instances are general 
 and unqualified. Each branch was obviously drawn with a view to the other, 
 and the import of each tends to illustrate that of the other. The grant to 
 raise money gives a power over every subject from which revenue may be 
 drawn, and is made in the same manner with the grants to declare war, to 
 raise and support armies and a navy, to regulate commerce, to establish 
 post-offices and post-roads, and with all the other specific grants to the General 
 Government. In the discharge of the powers contained in any of these grants 
 there is no other check than that which is to be found in the great principles 
 of our system, the responsibility of the representative to his constituents. If 
 war, for example, is necessary, and Congress declares it for good cause, their 
 constituents will support them in it. A like support will be given them for 
 the faithful discharge of their duties under any and every other power vested 
 in the United States. The power to raise money by taxes, duties, imposts, 
 and excises is alike unqualified, nor do I see any check on the exercise of it 
 other than that which applies to the other powers above recited, the respon- 
 sibility of the representative to his constituents. Congress knows the extent 
 of the public engagements and the sums necessary to meet them; they know 
 how much may be derived from each branch of revenue without pressing it 
 too far; and, paying due regard to the interests of the people, they likewise 
 know which branch ought to be resorted to in the first instance. From the 
 commencement of the Government two branches of this power, duties and 
 imposts, have been in constant operation, the revenue from which has sup- 
 ported the Government in its various branches and met its other ordinary 
 engagements. In great emergencies the other two, taxes and excises, have 
 likewise been resorted to, and neither was the right nor the policy called 
 in question. If we look to the second branch of this power, that which 
 authorizes the appropriation of the money thus raised, we find that it is not 
 less general and unqualified than the power to raise it. More comprehensive 
 terms than to " pay the debts and provide for the common defense and general 
 welfare " could not have been used. So intimately connected with and 
 dependent on each other are these two branches of power that had either 
 been limited the limitation would have had the like effect on the other. Had 
 the power to raise money been conditional or restricted^) special purposes, 
 the appropriation must have corresponded with it, for none but the money 
 raised could be appropriated, nor could it be appropriated to other purposes 
 than those which were permitted. On the other hand, if the right of appro- 
 priation had been restricted to certain purposes, it would be useless and
 
 FEDERAL POWERS OF TAXATION. 591 
 
 President's opinion, of a purely local character, or, as lie says, 
 " if it can be considered national, no further distinction between 
 the appropriate duties of the General and State Governments 
 need be attempted, for there can be no local interest that may not 
 with equal propriety be denominated national." 
 
 improper to raise more than would be adequate to those purposes. It may 
 fairly be inferred these restraints or checks have been carefully and inten- 
 tionally avoided. The power in eacli branch is alike broad and unqualified, 
 and each is drawn with peculiar fitness to the other, the latter requiring 
 terms of great extent and force to accommodate the former, which have been 
 adopted, and both placed in the same cause and sentence. Can it be presumed 
 that all these circumstances were so nicely adjusted by mere accident? Is it 
 not more just to conclude that they were the result of due deliberation and 
 design? Had it been intended that Congress should be restricted in the 
 appropriation of the public money to such expenditures as were authorized 
 by a rigid construction of the other specific grants, how easy would it have 
 been to have provided for it by a declaration to that effect. The omission of 
 such declaration is therefore an additional proof that it was not intended 
 that the grant should be so construed." 
 
 " If, then," Monroe continues, " the right to raise and appropriate the public 
 money is not restricted to the expenditures under the other specific grants 
 according to a strict construction of their powers, respectively, is there no 
 limitation to it? Have Congress a right to raise and appropriate to any and 
 to every purpose according to their will and pleasure? They certainly have 
 not. The Government of the United States is a limited Government, insti- 
 gated Jor great national purposes, and for those only. Other interests are 
 committed to the States, whose duty it is to provide for them. Each govern- 
 ment should look to the great and essential purposes for which it was 
 instituted and confine itself to those purposes. A state government will 
 mrely if tv<-r apply money to national purposes without making it a charge 
 to the nation. The people of the State would not permit it. Nor will Congress 
 b-; apt to apply money in aid of the state administrations for purposes 
 strictly local in which the nation at large has no interest, although the State 
 should desire it. The people of the other States would condemn it. They 
 would declare that Congress had no right to tax them for such a purpose, 
 and dismiss at the next election such of their representatives as had voted for 
 th-? measure, especially if it would be severely felt. I do not think that in 
 offices of this kind there is much danger of the two governments mistaking their 
 interests or their duties. I rather expect that they would soon have a clear 
 and distinct understanding of them and move on in great harmony. Good 
 roads and canals will promote many very important national purposes. They 
 will facilitate the operations of war, the movements of troops, the transporta- 
 tion of cannon, of provisions, and every warlike store, much to our advantage 
 and to the disadvantage of the enemy in time of war. Good roads will facili- 
 tate the transportation of the mail, and thereby promote the purposes of
 
 592 UNITED STATES CONSTITUTIONAL LAW. 
 
 The extent of the appropriating power of Congress is illus< 
 trated in the case of United States v. Realty Co., 2(i in which was 
 upheld the power of Congress to appropriate money for the pay- 
 ment of certain claims which the Federal Government was not 
 legally but only morally obligated to satisfy. The court said: 
 " We are of opinion that the parties in these actions . . 
 acquired claims upon the Government of an equitable, moral or 
 honorary nature . . . Congress has power to lay and^ collect 
 taxes, etc., ' to pay the debts ' of the United States. Having 
 the power to raise money for that purpose, it of course follows 
 that it has power when the money is raised to appropriate it to 
 the same object . . . The term ' debts ' includes those debts 
 or claims which rest upon a merely equitable or honorary obliga- 
 tion r and which would not be recoverable in a court of law if ex- 
 isting against an individual. . . . Payments to individuals, 
 not of right or of a merely legal, claim, but payments in the na- 
 ture o gratuity, yet having some feature of moral obligation fo 
 support them, have been made by the government by virtue of 
 acts of Congress, appropriating the public money, ever since its 
 foundation. Some of the acts were based upon considerations of 
 
 commerce and political intelligence among the people. Tliey will by being 
 properly directed to these objects enhance the value of our vacant laifils, a 
 treasure of vast resource to the nation. To the appropriation of the public 
 money to improvements having these objects in view and carried to a certain 
 extent I" do not see any well-founded constitutional objection. . . . The 
 right of appropriation is nothing more .than a right to apply the public 
 money to this or to that purpose. It has no incidental power, nor does it 
 draw after it any consequences of that kind. All that Congress could do 
 under it in the case of internal improvements would be to appropriate the 
 money necessary to make them. For every act requiring legislative sanction 
 or support the state authority must be relied on. The condemnation of "the 
 land, if the proprietors should refuse to sell it, the establishment of turn- 
 pikes and tolls, and the protection of the work when finished must be done hy 
 the State. To these purposes the powers of the General Government are 
 believed to be utterly incompetent. . . . The substance of what has been 
 urged on this subject may be expressed in a few words. My idea is that 
 Congress have an unlimited power to raise money, and tlnat in its appropria- 
 tion they have a discretionary power, restricted only by the duty to appro- 
 priate it to purposes of common defense and of general, not local, national, 
 not state, benefit." 
 
 2163 U. . 427; 16 Pup. Ct. Eep. 1120; 41 L. ed. 215.
 
 FEBEKAI. POWEBS OF TAXATION. 593 
 
 pure charity. 27 ... In regard to the question whether the facts 
 existing in any given case bring it within the description of that 
 class of claims which Congress can aoad ought to recognize as 
 founded upon equitable and moral considerations and grounded 
 upon principles of right and justice, we think that generally such 
 question must in its nature be one for Congress to decide for itself. 
 Its decision recognizing such a claim and .appropriating money 
 for its payment can rarely, if ever, be the subject of review by the 
 judicial branch of the Government." 
 
 270. Equality in Taxation. 
 
 The Fourteenth Amendment requires upon the part of the 
 States that they shall not deny to any persons within their several 
 jurisdictions the equal protection of the laws, and this obligation 
 is, of course, operative in the field of taxation. Ko similarly 
 phrased obligation is laid upon the Federal Government, but the 
 provision of " the Fifth Amendment forbidding the taking of 
 property without due process of law imposes an obligation broad 
 enough to cover all or nearly all cases of unequal protection of the 
 laws. And, furthermore, as to taxes it is specifically provided 
 that they shall be uniform throughout the United States. 28 
 
 Whether or not the equal protection of the laws is included 
 within the general protection against the taking of life, liberty, 
 or property without due process of law, the provision for equal 
 protection does certainly mark off a specific right or a group of 
 rights within the general field of rights against the violation of 
 which by the States he is guaranteed by the "Constitution. That 
 this protection applies within the field of taxation is well estab- 
 li-hed. A case clearly stating this doctrine is that of County of 
 Santa Clara v. S. Pacific R. R. Co., 28a in which Justice Field 
 rendered the opinion. " Witli the adoption of the Fourteenth 
 
 27 Senator Daniel in a speech on the Blair Ediirational Bill enumerated 
 some forty instance in which Congress had appropriated money to private 
 individuals. Cong. Record, XXI, Pi. 3, p. 2295, 1890. 
 
 zsThe Insular Cases held that this clause has no application to unincor- 
 porated Territories. 
 
 2*a 18 Fed. Rep. 385. 
 
 38
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 Amendment," Field declared, " the power of the States to op- 
 press any one under any pretense or in any form was forever 
 ended; and henceforth all persons within their jurisdiction could 
 claim equal protection under the laws. And by equal protection 
 is meant equal security to every one in his private rights in 
 his right to life, to liberty, to property, and to the pursuit of hap- 
 piness. It implies not only that the means which the laws afford 
 for such security shall be accessible to him, but that no one shall 
 be subject to any burdens or charges than such as are imposed 
 upon all others under like circumstances. This protection attends 
 every one everywhere, whatever be his position in society or his 
 association with others, either for profit, improvement or pleasure. 
 . . . No State in such is the sovereign command of the whole 
 people of the United States no State shall touch the life, the 
 liberty, or the property of any person, however humble his lot or 
 exalted his station, without due process of law, and no State, 
 even with due process of law, shall deny to any one within 
 its jurisdiction the equal protection of the law. Unequal 
 taxation, so far as it can be prevented is therefore, with 
 other unequal burdens, prohibited by the Amendment. There 
 undoubtedly are, and always will be, more or less inequalities in 
 the operation of all general legislation arising from the different 
 conditions of persons from their means, business, or position in 
 life, against which no foresight can guard. But this is a very 
 different thing, both in purpose and effect, from a carefully de- 
 vised scheme to produce such inequality; or a scheme, if not so 
 devised, necessarily producing that result. Absolute equality 
 may not be attainable, but gross and designed departures from it 
 will necessarily bring the legislation authorizing it within the 
 prohibition." 
 
 As has been already noted, the determination as to when a tax 
 shall be levied and upon what persons and property, and by what 
 rule it is to be assessed and by what means collected is a legislative 
 function. However, in levying an ad valorem tax, the legislature 
 may not determine the assessment value of particular pieces of 
 property. So also it follows that while the legislature may, within
 
 FEDERAL POWERS OF TAXATION. 595 
 
 its discretion, determine freely what occupations, or classes of 
 property or persons are to be taxed, it may not select out from 
 the general mass of property, or general citizen body, particular 
 pieces of property or particular individuals to bear the burden of 
 the tax. "When, therefore, a tax is laid upon certain classes of 
 property or of persons, there must be some reasonable basis for 
 the classifications adopted. By this is meant that there must be 
 some substantial reason why the units, whether of .property or of 
 individuals, should be treated as distinct groups. 
 
 In Bell's Gap Kailroad Co. v. Pennsylvania 29 was involved the 
 validity of a state law which levied a certain tax on all moneyed 
 securities according to their actual value, except that as to all 
 bonds and other securities issued by corporations their nominal or 
 par value should be the basis. It being argued that this violated 
 the requirement of the Fourteenth Amendment as to the equal 
 protection of the laws, the court said : " But, be this as it may, 
 the law does not make any discrimination in this regard which the 
 State is not competent to make. All corporate securities are sub- 
 ject to the same regulation. The provision, in the Fourteenth 
 Amendment, that no State shall deny to any person within its 
 jurisdiction the equal protection of the laws, was not intended to 
 prevent a State from adjusting its system of taxation in all proper 
 and reasonable ways. It may, if it chooses, exempt certain 
 classes of property from any taxation at all, such as churches, 
 libraries and the property of charitable institutions. It may im- 
 pose different specific taxes upon different trades and professions, 
 and may vary the rates of excise upon various products; it may 
 tax real estate and personal property in a different manner; it 
 may tax visible property only, and not tax securities for payment 
 of money; it may allow deductions for indebtedness, or not allow 
 them. All such regulations, and those of like character, so long 
 as they proceed within reasonable limits and general usage, are 
 within the discretion of the state legislature, or the people of the 
 State in framing their Constitution. But clear and hostile dis- 
 criminations against particular persons and classes, especially such 
 
 23 J34 U. S. 232; 10 Sup. Ct, Rep. 533; 33 L. ed. 802.
 
 596 UNITED STATES CONSTITUTIONAL LAW. 
 
 as are of an unusual character, unknown to the practice of our 
 governments, might be obnoxious to the constitutional prohibition. 
 It would, however, be impracticable and unwise to attempt to 
 lav down any general rule or definition on the subject, that would 
 include ;all cases. They must be decided as they arise. \\e think 
 that we are safe in saying that the Fourteenth Amendment was 
 not intended to compel the States to adopt an iron rule of taxa- 
 tion. If that were its proper construction, it would not only su- 
 persede all those constitutional provisions and laws of some of the 
 States, whose object is to secure equality of taxation, and which 
 are usually accompanied with qualifications deemed material; 
 but it would render nugatory those discriminations which the 
 best interests of society require, which are necessary for the en- 
 couragement and useful industries, and the discouragement of 
 intemperance and vice, and which every State, in one form or an- 
 other, deems it expedient to adopt." 
 
 In American Sugar Refining Co. v. Louisiana 30 it was held that 
 the equal protection of the laws was not denied by a. license tax 
 imposed .upon manufacturers of sugar, but exempting from its 
 operation those who refined the products of their own plantations. 
 The opinion declares : " The act in question does undoubtedly 
 discriminate in favor of a certain class of refiners, but this dis- 
 crimination, if founded upon a reasonable distinction in principle, 
 is valid. Of course, if such discrimination were purely arbitrary, 
 oppressive, or capricious, and made to depend on diiferences of 
 color, race, nativity, religious opinions, political affiliation, or 
 other consideration having no possible connection with the duties 
 of citizens as taxpayers, such exemption would be pure favoritism, 
 and a denial of the equal protection of the laws to the less favored 
 classes." 
 
 271. Uniformity in Taxation. 
 
 Granting the right of the legislature to classify persons and 
 property for purposes of taxation, the requirements of due process 
 of law and of the additional provision found in the federal Con- 
 so 179 U. S. 89; 21 Sup. Ct. Rep. 43; 45 L. ed. 102.
 
 FEDERAL POWERS OF TAXATION. 597. 
 
 stitution and in almost all if not in all of the stare constitutions 
 that all laws shall be uniform, make it necessary that the assess- 
 ment of all persons and property within the class or district se- 
 lected for taxation shall be according to a uniform rule. Cooley 
 states the principle as follows: "As to all taxation apportioned 
 upon property, there must be taxing districts and within these, 
 districts the rule of absolute uniformity must be applicable. A 
 state tax must be apportioned through the State, a county tax 
 through the county, a city tax through the city ; while in cases of 
 local improvements, benefiting in a special and peculiar manner 
 some portion of the State or of a county or city, it is competent 
 to arrange a special taxing district within which the expense shall 
 be apportioned." 31 And again : " The rule of apportionment 
 must be uniform throughout the taxing district, applicable to all 
 alike, but the legislatures have no power to arrange taxing dis- 
 tricts arbitrarily, and without reference to the great fundamental 
 principles of taxation that the burden must be borne by those 
 upon whom it justly rests. The Kentucky and Iowa decisions 
 hold that, in a case where they have manifestly and unmistakably 
 done so, the courts may interfere and restrain the imposition of 
 municipal burdens on property which does not properly belong 
 within the municipal taxing district at all." 32 
 
 All that the rule of uniformity requires is this, that within 
 the classes or districts taxed the law shall operate according to a 
 uniform rule. Thus, for example, it has been generally held that a 
 city levying a general tax may not discriminate between different 
 wards or sections, for all property within a taxing district must 
 be taxed alike. 33 
 
 su'ooley, Const. Lim., 7th ed., 711. 
 
 32 Const. L\m., 7th erl., 724. The cases referred to are Morford v Tngfrr, 
 s Ii.\va, 82: City of Covington v. Southgate. 15 B. Monr. 491; Arbegiist v. 
 Louisville. 2 Bush, 271; SAvift v. Newport, 7 Bush, 37. 
 
 23 This does not hold true where, by special contract made at the time a 
 rural district is incorporated into the city, special treatment with reference 
 t.) taxation has been promised. The exemption of certain pieces of property 
 from taxation where this exemption has been for some public purpose or in 
 return for consideration received, does not violate this principle.
 
 598 UNITED STATES CONSTITUTIONAL, LAW. 
 
 272. What Constitutes Uniformity Throughout the United 
 States? 
 
 In the Head Money Cases, speaking with reference to the re- 
 quirement of the federal Constitution that all duties, imposts, and 
 excises shall be uniform throughout the United States, the court 
 say : " The uniformity here prescribed has reference to the 
 various localities in which the tax is intended to operate. ' It 
 shall be uniform throughout the United .States.' Is the tax on 
 tobacco void, because in many of the States no tobacco is 
 raised, or manufactured ? Is the tax on distilled spirits 
 void, because a few States pay three-fourths of the revenue 
 arising from it? The tax is uniform when it operates with 
 the same force and effect in every place where the subject 
 is to be found. The tax in this case, which, as far as it 
 can be called a tax, is an excise duty on the business of bring- 
 ing passengers from foreign countries into this by ocean naviga- 
 tion, is uniform and operates precisely alike in every port of the 
 United States where such passengers can be landed. It is said 
 that the statute violates the rule of uniformity and the provisions 
 of the Constitution, that ' no preference shall be given by any 
 regulation of commerce or revenue to the ports of one State over 
 those of another/ because it does not apply to passengers arriving 
 in this country by railroad or by other inland mode of convey- 
 ance. But the law applies to all ports alike, and evidently gives 
 no preference to one over another, but is uniform in its operation 
 in all ports of the United States. It may be added that the evil 
 to be remedied by this legislation has no existence on our inland 
 borders, and immigration in that quarter needed no such regula- 
 tion. Perfect uniformity and perfect equality of taxation, in all 
 the aspects in which the human mind can view it, is a baseless 
 dream, as this court has said more than once. (State Railroad 
 Tax Cases, 92 U. S. 575; 23 L. ed. 663.) Here there is sub- 
 stantial uniformity within the meaning and purpose of the Con- 
 stitution." 
 
 The principles of uniformity and of reasonable classification 
 for purposes of taxation have been especially examined by the 
 courts with reference to inheritance tax laws.
 
 FEDERAL, POWEKS OF TAXATION. 599 
 
 273. State Inheritance Taxes. 
 
 So-called inheritance taxes, that is to say, taxes collected from 
 persons receiving property by inheritance, are levied in many of 
 the civilized States of the world. In the United States they have 
 several times been imposed by federal law, and at present (1910) 
 they are to be found in about thirty-five States. In many 
 cases these taxes have been progressive, the rate being higher for 
 larger than for smaller bequests, and collateral heirs often taxed 
 more heavily than direct descendants. In most cases small in- 
 heritances have been wholly exempted from the operation of the 
 tax, as have been also bequests and inheritances of real estate. 
 In some cases state inheritance tax laws have been held questioned 
 because containing some special obnoxious provisions, but the 
 ground upon which they have usually been attacked has been that 
 they have violated the requirements of equality and uniformity, 
 because of their progressive features and because of the ex- 
 emptions referred to above. In general, however, the laws have 
 been upheld. 34 
 
 3 The constitutionality of laws exempting small estates is asserted in State 
 v. Clark, 30 Wash. 439; State v. Alston,, 94 Tenn. 674; In re Wilmerding, 
 117 Cal. 281; Estate of Stanford, 126 Cal. 112; State v. Hamlin, 86 Me. 496 ; 
 Minot v. Winthrop, 162 Mass. 113; Crocker v. Shaw, 174 Mass. 266; Gels- 
 thorpe v. Furnell, 20 Mont. 299; High v. Coyne, 9.3 Fed. Rep. 450; Morris' 
 Estate, 50 S. E. Rep. 682; Union Trust Co. v. Wayne, 125 Mich. 487; Ferry 
 v. Campbell, 110 Iowa, 290; Hickok's Estate (Vt.), 62 Atl. Rep. 724; 
 Frothingham v. Shaw, 175 Mass. 59; Appeal of Nettleton, 56 Atl. Rep. 565; 
 Estate of Magnes, 32 Colo. 527 ; Pullen v. Commissioners of Wake Co., 66 
 N. C. 361; Black v. State, 113 Wis. 205. 
 
 The constitutionality of a law discriminating between lineal and collateral 
 descendants and 'between relatives and strangers in blood has been sustained 
 in the following cases: State v. Alston, 94 Tenn. 674; State v. Henderson, 
 160 Mo. 190; State v. Clark, 30 Wash. 439; Hagerty v. State, 55 Ohio, 613; 
 Nunnemacher v. State, 129 Wis. 190; In re McPherson, 104 N. Y. 306; State 
 v. Hamlin, 86 Me. 495; Minot v. Winthrop, 162 Mass. 113; Billings v. State, 
 189 111. 472; State v. Dalrymple, 70 Md. 294; Tyson v. State, 28 Md. 577; 
 Eyre v. Jacob, 14 Gratt. 422; Gelsthorpe v. Furnell, 20 Mont. 299; Wallace v. 
 Myers, 38 Fed. Rep. 184; Union Trust Co. v. Wayne Probate Judge, 125 Mich. 
 487; Frothingham v. Shaw, 175 Mass. 59; Appeal of Nettleton, 56 Atl. Rep. 
 565; Estate of Magnes, 32 Colo. 527; Pullen v. Commissioners of Wake Co., 
 66 N. C. 361; Estate of Campbell, 143 Cal. 623; Thompson v. Kidder (X*H.), 
 65 Atl. Rep. 392.
 
 600 UNITED STATES CONSTITUTIONAL LAW. 
 
 In many cases the classifications of the state laws have been 
 upheld as reasonable in themselves, but fundamentally the princi- 
 ple upon which the validity of the laws has been sustained is that 
 an inheritance tax is not a tax upon the property inherited but 
 upon the right to inherit; and that, inasmuch as this is a right 
 which exists only by statute, it is one that may be regulated at 
 the will of the legislature which creates it." 5 
 
 A leading case in the federal courts as to the constitutionality 
 of a state inheritance tax law as tested by the requirements of the 
 Fourteenth Amendment, is that of Magoun v. Illinois Trust and 
 Savings Bank. 36 
 
 In this case the doctrine was reaffirmed that an inheritance tax 
 is not one on property but on the right to take property by devise 
 or descent, and that this, being a right of legislative creation, the 
 States may attach conditions thereunto. Hence, it was held, that 
 the States may,, in taxing this privilege, discriminate between rela- 
 tives and between, relatives and strangers without violating state 
 constitutional provisions requiring uniformity and equality of tax- 
 ation, or the provision of the Fourteenth Amendment prohibiting 
 the denial of the equal protection of the laws. The provision of the 
 Fourteenth Amendment, the court say, does not require " exact 
 equality of taxation. It only requires that the law imposing it 
 shall operate on all alike under the same circumstances." 
 
 In Billings v. Illinois 37 the court say : " It is insisted that the 
 classification sustained in the Magoun Case ' related solely to the 
 graduated feature of the tax.' In the case at bar, it is said, the 
 question is whether or not the Illinois legislature can discrim- 
 
 The constitutionality of a law laying the tax according to a progressively 
 increasing rate has been upheld in the following cases: Kocherspcrp'r v. 
 Drake, 167 111. 122; Xunnemacher v. State, 129 Wis. 190; Sta-te ex rel. Foot 
 v. Bazille, 97 Minn. 11; State v. lark. 30 Wash. 439; Estate of Magnes, 32 
 Colo. 527; Morris' Estate, 138 X. C. 259; State v. Vinsonhaler (Xebr.), 105 
 X. W. Rep. 472. 
 
 The foregoing references are from a pamphlet on inheritance tax laws issued 
 by the United States Government (U. S. Govt. Printing Office, 1908). 
 
 33 For a full discussion of the constitutionality of inheritance tax. laws, see 
 Xunnemacher v. State, 129 Wis. 190, decided in 1906. 
 
 se 170 U. S. 283; 18 Sup. Ct. Rep. 594; 42 L. ed. 1037. 
 
 ST 188 U. S. 97; 23 Sup. Ct. Rep. 272; 47 L. ed. 400.
 
 FEDERAL POWERS OF TAXATION. 601 
 
 inate against constituents of a certain class, and apply different 
 rules for the taxation of its members. Life tenants constitute 
 but a single class, and the incidents of such an estate, the source 
 thereof, the extent, the dominion over and the quality of interest 
 in the tenant, is the same irrespective of the ultimate vesting of 
 the remainder. The tax is not upon the property, but is upon the 
 person succeeding to the property. Undoubtedly, life tenants, re- 
 garded simply as persons, may be in legal contemplation the same; 
 estates for life, regarded simply as estates with their attributes 
 also in legal contemplation, may be said to be the same, but that 
 is not all to be considered, nor is it determinative. We must re- 
 gard the power of the state over testate and intestate dispositions 
 of property, its power to create and limit estates, and, as resulting, 
 its power to impose conditions upon their transfer or devolution. 
 It is upon this power that inheritance tax laws are based, and we 
 said, in the ITagoun Case, that the power could be exercised by 
 distinguishing between the lineal and collateral relatives of a 
 testator. There the amount of tax depended upon him who im- 
 mediately received ; here the existence of the tax depends upon 
 him who ultimately receives. That can make no difference with 
 the power of the State. Xo discrimination being exercised in 
 the creation of the class, equality is observed. 'Crossing the lines 
 of the classes created by the statute, discriminations may be ex- 
 hibited, but within the classes there is equality." 38 
 
 3$ See also Campbell v. California, 200 U. S. 87; 26 Sup. Ct. Rep. 182; 50 
 L. ed. 382. 
 
 Mr. Judson in his valuable treatise, summinsr up the question of classifica- 
 tion for taxing purposes, says: "Classification for taxation is not necessarily 
 based upon any essential difference in the nature or condition of the various 
 subjects. It may be based as well upon the want of adaptability to the same 
 methods of taxation, or upon the impracticability of applying to the various 
 subjects the same methods so as to produce uniform results, or it may be 
 based upon just and well grounded considerations of public policy." Mr. 
 Judson adds, however, that "while classification may thus be based on dilfer- 
 , ences in the nature or condition of the subjects of taxation, or their want of 
 1 adaptability to the same methods of taxation, it must rest on some other 
 reason than that of mere ownership." On Taxation, 454, 455.
 
 602 UNITED STATES CONSTITUTIONAL LAW. 
 
 274. Federal Inheritance Taxes. 
 
 Upon several occasions inheritance taxes have been resorted to 
 for revenue by the Federal Government. By the stamp act of 
 July 6, 1797, a duty was levied on receipts for legacies and 
 shares of personal estate. So also a legacy tax on the devolution 
 of personal property and stamp taxes on probates of wills and 
 letters of administration were imposed by the war revenue acts of 
 July 1, 1802, and June 30, 1864, the latter act providing for a 
 succession tax on real estate. In the income tax provisions of 
 the act of August 27, 1894, incomes were defined to include 
 " money and the value of all personal property acquired by gift 
 or inheritance." 39 Again in the war revenue act of June, 1898, 
 taxes were imposed upon legacies and distributive shares of per- 
 sonal property. 
 
 The constitutionality of the inheritance tax provisions of this 
 last law of 1898 was upheld in Knowlton v. Moore. 40 In this 
 case it was argued that the tax was void, first, because it was a 
 direct tax and not apportioned among the States according to 
 their respective populations; second, because it was not, in its 
 operation, " uniform throughout the United States ;" and third, 
 that, regarded as a succession tax, it attempted the federal regula- 
 tion of a matter placed within the exclusive control of the States. 
 
 The reasoning of the court upon the first of these points is con- 
 sidered in a later section of this chapter. 41 As to the question 
 of uniformity the contention was that the requirement was vio- 
 lated because the statute exempted legacies and distributive shares 
 in personal property below $10,000, because it classified the rate 
 of tax according to the relationship of the taker to the deceased, 
 and because it provided for a rate progressing according to the 
 amount of the legacy or share. To this contention the court reply : 
 " Considering the text, it is apparent that if the word ' uniform ' 
 means ' equal and uniform ' in the sense now asserted by 
 
 39 In Pollock, v. Farmers' Loan and Trust Co. ( 158 U. S. 601 ; 15 Sup. Ct. 
 Rep. 912; 39 L. ed. 1108), the court held the income tax features of this law 
 void. See Section 279. 
 
 <o 178 U. S. 41; 20 Sup. Ct. Rep. 747; 44 L. ed. 969. 
 
 Section 281.
 
 FEDERAL POWERS OF TAXATION. 603 
 
 the opponents of the tax, the words ' throughout the United 
 States,' are deprived of all real significance, and sustaining the 
 contention must hence lead to a disregard of the elementary canon 
 of construction which requires that effect be given to each word 
 of the Constitution. Taking a wider view, it is to be remembered 
 that the power to tax contained in Section VIII of Article I is to 
 lay and collect 'taxes, duties, imposts, and excises; . . . 
 but all duties, imposts and excises shall be uniform throughout 
 the United States.' ' Thus, the qualification of uniformity is im' 
 posed, not upon the taxes which the Constitution authorizes, but 
 only on duties, imposts, and excises. The conclusion that inherent 
 equality and uniformity is contemplated involves, therefore, the 
 proposition that the rule of intrinsic uniformity is applied by the 
 Constitution to taxation by means of duties, imposts, and excises, 
 and it is not applicable to any other form of taxes. It cannot be 
 doubted that in levying direct taxes, after apportioning the 
 amount among the several States, as provided in Clause 4 of Sec- 
 tion IX of Article I of the Constitution, Congress has the power to 
 choose the objects of direct taxation, and to levy the quota as ap- 
 portioned directly upon the objects so selected. Even then, if the 
 view of inherent uniformity be the true one, none of the taxes so 
 levied would be subjected to such rule, as the requirements only 
 relate to duties, imposts, and excises. But the classes of taxes 
 termed duties, imposts, and excises, to which the rule of uni- 
 formity applies, are those to which the principle of equality and 
 uniformity in the sense claimed is, in the nature of things, the 
 least applicable and least susceptible of being enforced. Excises 
 usually look to a particular subject, and levy burdens with refer- 
 ence to the act of manufacturing them, selling them, etc. They 
 are or may be as varied in form as are the acts or dealings with 
 which the taxes are concerned. Impost duties take every conceiv- 
 able form, as may by the legislative authority be deemed best for 
 the general welfare. They have been at all times often specific. 
 They have sometimes been discriminatory, particularly when 
 deemed necessary by reason of the tariff legislation of other 
 countries. The claim of intrinsic uniformity, therefore, imputes
 
 G01 UNITED. STATES CONSTITUTIONAL LAW. 
 
 to the framers a restriction as to certain forms of taxes, where 
 the restraint was least appropriate and the omission where it was 
 most needed. This discord, which the construction, if well 
 founded, would create, suggests at once the unsoundness of the 
 proposition, and gives rise to the inference that the contrary view 
 by which the unity of the provisions of the Constitution is main- 
 tained, must be the correct one. In fact, it is apparent that if 
 imposts, duties, and excises are controlled by the rule of intrinsic 
 uniformity, the methods usually employed at the time of the 
 adoption of the Constitution in all countries in the levy of such 
 taxes would have to be abandoned in this country, and, therefore, 
 whilst nominally having thr authority to impose taxes of this 
 character, the power to do so would be virtually denied to Con- 
 gress. Xow, that the requirement that direct taxes should be ap- 
 portioned among the several States contemplated the protection of 
 the States, to prevent their being called upon to contribute more 
 than was deemed their due share of the burden, is clear. Giving 
 to the term uniformity as applied to duties, imposts, and excises 
 a geographical significance, likewise causes that provision to look 
 to the forbidding of discrimination as between the States, by the 
 levying of duties, imposts, or excises upon a particular subject in 
 one State and a different duty, impost, or excise on the same sub- 
 ject in another; and therefore, as far as may be, is a restriction 
 in the same direction and in harmony with the requirement of 
 apportionment of direct taxes. ... It is yet further asserted 
 that the tax does not fulfil the requirements of geographical uni- 
 formity, for the following reasons : As the primary rate of taxa- 
 tion depends upon the degree of relationship or want of relation- 
 ship to a deceased person, it is argued that it cannot operate with 
 geographical uniformity, inasmuch as testamentary and intestacy 
 laws may differ in every State. It is certain that the same degree 
 of relationship or want of relationship to the deceased, wherever 
 existing is levied on at the same rate throughout the United 
 'States. The tax is hence uniform throughout the United States, 
 despite the fact that different conditions among the States may 
 obtain as to the objects upon which the tax is levied. The propo-
 
 FEDERAL POWEES OF TAXATION. 605 
 
 sition in substance assumes that the objects taxed by duties, im- 
 posts, and excises must be found in uniform quantities and condi- 
 tions in the respective States, otherwise the tax levied on them 
 will not be uniform throughout the United States. But what the 
 Constitution commands is the imposition of a tax by the rule of 
 geographical uniformity, not that in order to levy such a tax ob- 
 jects must be selected which exist uniformly in the several States. 
 Indeed, the contention -was substantially disposed of in License 
 Tax Cases. 42 
 
 A- to the contention that, viewing the tax as one on succession, 
 the law was in regulation of a matter within the exclusive control 
 of the States, the court, after reaffirming the principle that the 
 tax is one on the right of succession, say: li Can the Congress of 
 the United States levy a tax of that character ? The proposition 
 that it cannot rests upon the assumption that, since the transmis- 
 sion of property by death is exclusively subject to the regu- 
 lating authority of the several States, therefore the levy by Con- 
 gress of a tax on inheritance or legacies, in any form, is beyond 
 the power of Congress, and is an interference by the Xational Gov- 
 ernment with a matter which falls alone within the reach of state 
 legislation. . . . The fallacy which underlies the proposition 
 contended for is the assumption that the tax on the transmission or 
 receipt of property occasioned by death is imposed on the exclusive 
 power of the State to regulate the devolution of property upon 
 death. The thing forming the universal subject of taxation upon 
 which inheritance and legacy taxes rest is the transmission or re- 
 ceipt, and not the right existing to regulate. < In legal effect, then, 
 the proposition upon which the argument rests is that wherever a 
 right is subject to exclusive regulation, by either the Government 
 of the United States, on the one hand, or the several States, on 
 the other, the exercise of such rights as regulated can alone be 
 taxed by the government having the mission to regulate. But 
 when it is accurately stated, the proposition denies the authority 
 of the States to tax objects which are confessedly within the reach 
 of tlu-ir taxing power, and also excludes the Xatioual Government 
 
 425 Wall. 462; 18 L. ed. 497.
 
 606 UNITED STATES CONSTITUTIONAL LAW. 
 
 from almost every subject of direct and many acknowledged ob- 
 jects of indirect taxation. ... It cannot be doubted that 
 the argument when reduced to its essence demonstrates its own 
 unsoundness, since it leads to the necessary conclusion that both 
 the national and state governments are divested of those powers 
 of taxation which from the foundation of the Government ad- 
 mittedly have belonged to them. Certainly, a tax placed upon an 
 inheritance or legacy diminishes, to the extent of the tax, the 
 value of the right to inherit or receive, but this is a burden cast 
 upon the recipient and not upon the power of the 'State to 
 regulate. . . . Under our constitutional system both the 
 national and state governments, moving in their respective orbits, 
 have a common authority to tax many and diverse objects, but 
 this does not cause the exercise of its lawful attributes by one to 
 be a curtailment of the powers of government of the other, for if 
 it did there would practically be an end of the dual system of 
 government which the Constitution established." 
 
 In Snyder v. Bettman 43 the court say that the case of Knowlton 
 v. Moore " must be regarded as definitely establishing the doctrine 
 that the^power to tax inheritances does not arise solely from the 
 power to regulate the descent of property, but from the general 
 authority to impose taxes upon all property within the jurisdic- 
 tion of the taxing power. It has usually happened that the power 
 has been exercised by the same government which regulates the 
 succession to the property taxed ; but this power is not destroyed 
 by the dual character of our government, or by the fact that under 
 our Constitution the devolution of property is determined by the 
 laws of the several States." 
 
 In an earlier chapter 44 it has been pointed out that a federal 
 inheritance tax levied upon bequests to a State or a municipal 
 corporation thereof, 45 or a state tax on legacies consisting of 
 United States bonds 45 is not unconstitutional. 
 
 43 190 U. S. 249; 23 Sup. Ct. Rep. 803; 47 L. ed. 1035. 
 
 44 Chapter V. 
 
 Snyder v. Bettman, 190 U. S. 249; 23 Sup. Ct. Rep. 803; 47 L. ed. 1035. 
 46 Plumber v. Coler, 178 U. S. 115; 20 Sup. Ct. Rep. 829; 44 L. e<l. 998.
 
 FEDERAL POWERS OF TAXATION. 607 
 
 In Murdock v. Ward 47 it is held that a federal inheritance tax 
 may be imposed on legacies or shares consisting of United States 
 bonds, even when these bonds have been issued under a law ex- 
 pressly exempting them from taxation in any form, state or 
 federal, direct or indirect, 48 
 
 275. Protective Tariffs. 
 
 The constitutionality of a protective tariff, that is, a system of 
 customs duties levied on foreign imports so arranged as to fur- 
 nish incidental protection to home industries, though questioned 
 in earlier years, has now passed beyond the range of controversy. 
 Such laws being on their face revenue measures, may not be ques- 
 tioned because their effect, and indeed the intent of the legis- 
 lature, is primarily to supply protection rather than revenue. The 
 doctrine of the court in McCray v. United 'States 49 is conclusive 
 as to this. But even if this were not so, a tariff avowedly levied 
 primarily and solely for protection is constitutionally justified 
 under the grant of authority to Congress " to regulate commerce 
 with foreign nations." 50 
 
 276. Bounties. 51 
 
 The constitutionality of bounties has never been squarely passed 
 upon by the Supreme Court. Their validity was questioned in 
 
 47 178 U. S. 130; 20 Sup. Ct. Rep. 775; 44 L. ed. 1009. 
 
 48 The court say: "Whether the United States, in the exercise of the 
 power of taxation, can be estopped by a contract that such power shall not be 
 exercised, we need not consider, because the contract in this case does not, as 
 we view it, mean that a State may not, or the United States may not, tax 
 inheritances and legacies, regardless of the character of the property of which 
 they are composed. That some of the holders of United States bonds may 
 not have paid franchise taxes to the States, and others may have paid state 
 or federal inheritance and legacy taxes, has nothing to do with the contract 
 between the United States and the bondholders. The United States will have 
 complied with their contract when they pay to the original holders of their 
 bonds, or to their assigns, the interest, when due, in full, and the principal, 
 when due, in full." 
 
 49 195 U. S. 27; 24 Sup. Ct. Rep. 769; 49 L. ed. 78. 
 
 BO For a summary of the arguments pro and contra as to the constitu- 
 tionality of protective tariffs, ?ee passim Stanwood, Tariff Controversies in 
 the United Stales in the Nineteenth Century. 
 
 5i For the definition of bounties see Downs v. United States, 187 U. S. 
 496 ; 23 Sup. Ct. Rep. 222 ; 47 L. ed. 275.
 
 608 UNITED STATES CONSTITUTIONAL LAW. 
 
 Field v. Clark 52 and United States v. Kealty Co., 53 but in neither 
 case did the court find itself obliged to decide the point. The 
 .ground upon which the constitutionality of bounties has been con- 
 tested has been that their payment amounts to an appropriation 
 of public moneys primarily for a private purpose. The courts 
 have often held that an expenditure in the public interest is not 
 invalidated by the fact that incidentally private interests are ad- 
 vanced thereby; but in general they have been held that an ap- 
 propriation primarily and directly for the furtherance of private 
 interests is not valfdated by the fact that incidentally public in- 
 terests are in a measure promoted. 54 
 
 277. Export Duties. 
 
 Among the express limitations upon the powers of Congress, 
 enumerated by the Constitution is that which provides that " no 
 tax or duty shall be laid on articles exported from any State." 
 In another clause substantially the same prohibition is laid upon 
 the States, it being declared that " no State shall, without the 
 consent of Congress, lay any imposts or duties on imports or ^ 
 exports." 
 
 The term "exports" has been judicially limited to goods ex- 
 ported to foreign countries. In the earlier cases of Brown 
 Maryland 57 ,and Alrny v. California 58 it was taken for granted' 
 by the court that the term applied also to goods carried from one 7 
 State to another State of the Union, but in Woodruff v. Parhani 59 |i 
 
 52143 U. S. 649; 12 Sup. Ct. Hep. 495; 36 L. ed. 294. 
 
 62 163 TJ. S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215. 
 
 54 See Lowell v. Boston, 111 Mass. 454; and Loan Association v. Topeka, 
 20 Wall. 655; 22 L. ed. 455. Cf. Harvard Law Revieic, V, 320, article by 
 C. F. Chamberlayne entitled " The 'Sugar Bounties." 
 
 55 Art. I, Sec. IX, Cl. 5. 
 
 56 " Except -what may be absolutely necessary for executing its inspection 
 laws; and the net produce of all duties and imposts, laid by any State on 
 imports or exports, shall be for the use of the treasury of the United States; 
 and all such laws shall be subject to the revision and control of the Congress " 
 (Art. I, Sec. X, Cl. 2). The state taxation of exports is considered in 
 Chapter XLIT. 
 
 6712 Wh. 419; 6 L. ed. 678. 
 
 5S24 How. 169; 16 L. ed. 644. 
 
 M 8 Wall. 123 ; 19 L. ed. 382.
 
 FEDERAL POWERS OF TAXATION. 609 
 
 /fhese dicta were overruled and the position taken which has not 
 jkince been disturbed, that the prohibition has reference only to 
 ortations to countries foreign to the United States. In this 
 . case, Justice Miller, after referring to the general power given 
 to Congress to levy and collect taxes, duties, and imposts, says: 
 " Is the word ' impost ' here used, intended to confer upon Con- 
 gress a distinct power to levy a tax upon all goods or merchandise 
 carried from one State to another ? Or is the power limited to 
 duties on foreign imports? If the former be intended, then the 
 power conferred is curiously rendered nugatory by the subsequent 
 clause of section IX 7 which declares that no tax shall be laid 
 on rticles exported from any State, for no article can be imported 
 from one State into another which is not at the same time exported 
 from the former. But if we give to the word ' imposts ' as used in 
 the first-mentioned clause the definition of Chief Justice ^Marshall, 
 and to the word l export ' the corresponding idea of something car- 
 ried out of the United States, we have, in the power to lay duties 
 on imports from abroad and the prohibition to lay such duties on 
 exports to other countries, the power and its limitations concern- 
 ing imposts. It is not too much to say that, so far as our research 
 has extended, neither the word ' export,' ' import,' or ' impost ' 
 is to be found in the discussion on this subject, as they have come 
 down to us from that time, in reference to any other than foreign 
 commerce, without some special form of words to show that 
 foreign commerce is not meant. . . . Whether we look, then, 
 to the terms of the clause of the Constitution in question, or to its 
 relation to the* other parts of that instrument, or to the history of 
 its formation and adoption, or to the comments of the eminent 
 men who took part in those transactions, we are forced to the con- 
 clusion that no intention existed to prohibit by this clause [that 
 no .State shall, without the consent of Congress, levy any impost 
 or duty upon any export or import] the right of one State to Tux 
 articles brought into it from another." 
 
 In Dooley v. United States, 60 one of the " Insular Cases," it 
 was argued that the Foraker Act of April 12, 1900, was uncon- 
 
 w 183 U. S. 151; 22 Sup. Ct. Rep. 62; 43 L. ed. 128. 
 
 39
 
 610 UNITED STATES CONSTITUTIONAL, LAW. 
 
 stitutional in so far as it .provided for the payment of duties upon 
 merchandise imported into Porto Rico from the United States. 
 The court, however, held that Porto Rico, after cession to the 
 United States, even though not " incorporated " into the United 
 States was not foreign territory, and, therefore, that, under the 
 definition laid down in Woodruff v. Parham, the tax in question 
 was not a tax on goods exported from the United States. The 
 court, moreover, go on to show from the circumstances of the case 
 that the tax was to be construed rather as one on goods imported 
 into Porto Rico, than upon goods exported from the State of New 
 York. The court in its opinion, however, are careful to add: 
 " It is not intended by this opinion to intimate that Congress may 
 lay an export tax upon merchandise carried from one State to 
 another. While this does not seem to be forbidden by the express 
 words of the Constitution, it would be extremely difficult, if not 
 impossible, to lay such a tax without a violation of the first para- 
 graph of Article I, Section VIII, that ' all duties, imposts, and ex- 
 cises shall be uniform throughout the United States.' There is a 
 wide difference between the full and paramount power of Congress 
 in legislating for a territory in the condition of Porto Rico and its 
 power with respect to the States, which is merely incidental to its 
 right to regulate interstate commerce. The question, however, is 
 not involved in this case, and we do not desire to express an 
 opinion upon it." 61 
 
 61 In a dissenting opinion, concurred in by four justices, it was argued that, 
 "The fact that the net proceeds of the duties are appropriated by the act for 
 use in Porto Rico does not affect their character any more than if so appro- 
 priated by another and separate act. The taxation reaches the people of the 
 "States directly, and is national, and not local, even though the revenue 
 derived therefrom is devoted to local purposes. . . . The prohibition 
 that ' no tax or duty shall be laid on articles exported from any State * 
 negatives the existence of any power in Congress to lay taxes or duties in 
 any form on articles exported from a State, irrespective of their destination, 
 and, this being so, the act in imposing the duties in question is invalid, 
 whether Porto Rico after its passage was a foreign or reputed foreign ter- 
 ritory, a domestic territory or a territory subject to be dealt with at the 
 will of Congress regardless of constitutional limitations. . . . The pro- 
 hibition on Congress is explicit, and noticeably different from the prohibi- 
 tion on the States. The State is forbidden to lay 'any imposts or duties;'
 
 FEDERAL POWEKS OF TAXATION. 611 
 
 To come within the definition of an export tax, it has been held 
 that the tax must be one levied upon the right to export, or upon 
 goods because of the fact that they are being exported or are 
 intended to be exported. The fact that certain goods are intended 
 for export does not, however, exempt them from an ordinary 
 property tax, for, as said, the tax is one on exports only when its 
 incidence or amount is determined by the fact that the goods are 
 intended for export. This is the doctrine laid down in Coe v. 
 Errol 62 with reference to taxation by the States and in Turpin v. 
 Burgess 63 with reference to federal taxation. 64 
 
 Congress is forbidden to lay ' any tax or duty.' The State is forbidden 
 from laying imposts or duties ' on imports or exports,' that is, articles 
 coming into or going out of the United States. Congress is forbidden to 
 tax articles exported from any State.' . . . Congress may lay local 
 taxes in the territories, affecting persons and property therein, or authorize 
 territorial legislatures to do so, but it cannot lay tariff duties on articles ex- 
 ported from one State to another, or from any State to the territories, or 
 from any State to foreign countries, or grant a power in that regard 
 which it does not possess. But the decision now made recognizes such pow- 
 ers in Congress as will enable it, under the guise of taxation, to exclude 
 the products of Porto Rico ; and this, notwithstanding it was held in De 
 Lima v. Bidwell (182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041), that 
 Porto Rico after the ratification of the treaty with Spain ceased to be foreign 
 and became domestic territory." 
 
 62 116 U. S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715. 
 
 63 117 U. S. 504; 6 Sup. Ct. Rep. 835; 29 L, ed. 988. 
 
 6 In the latter case the court say: "There is another view of this subject, 
 however, independent of the considerations which governed our former decision, 
 which is equally decisive of this case. We have lately decided in Coe v. Errol 
 that goods intended for exportation to another State are liable to taxation as 
 part of the general mass of property of the State of their origin until actually 
 started in course of transportation to the State of their destination, or 
 delivered to a common carrier for that purpose, provided they are taxed in 
 the usual way in which such property is taxed, and not taxed by reason or 
 because of such exportation, or intended exportation, and that the carrying of 
 them to and depositing them at a depot for the purpose of transportation is 
 no part of that transportation. Xow the constitutional provision against 
 taxing exports is substantially the same when directed to the United States 
 as when directed to a State. In the one case the words are, ' No tax or duty 
 shall be laid on articles exported from any State.' Art. I, 9, par. 2. In the 
 other they are: 'No State shall, without the consent of Congress, lay any 
 imposts or duties on imports or exports.' Art. I, 10, par. 2. The prohibi- 
 tion in both cases has reference to the imposition of duties on goods by reason 
 or because of their exportation, or intended exportation, or while they are
 
 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Pace v. Burgess 65 was questioned the validity of a federal 
 law requiring stamps to be affixed to packages of manufactured 
 tobacco intended for exportation. The court, however, held the 
 requirement to be a proper one to prevent fraud and not to amount 
 to a tax on exports. * " The stamp was intended," the court say. 
 "for no other purpose than to separate and identify the tobacco 
 which the manufacturer desired to export, and thereby, instead 
 of taxing it, to relieve it from the taxation to which other tol icco 
 was subjected. It was a means devised to prevent fraud, and 
 to secure the faithful carrying out of the declared intent with 
 regard to the tobacco so marked. The payment of twenty-five 
 cents or of ten cents for the stamp used was no more a tax on the 
 export than was the fee for clearing the vessel in which it was 
 transported, or for making out and certifying the manifest of the 
 cargo. It bore no proportion whatever to the quantity or value 
 of the package on which it was affixed." 
 
 In Fairbanks v. United States, 63 however, a stamp tax imposed 
 on foreign bills of lading by the act of 1898 was held to be, in 
 substance and effect, a tax on the articles included in the bills of 
 lading, and, therefore, a tax on exports, and as such unconstitu- 
 tional. The law had provided for a stamp tax of one cent on 
 
 being exported, within the meaning of the Constitution. But a general tax, 
 laid on all property alike, and not levied on gooda in course of exportation, 
 nor because of their intended exportation, is not within the constitutional 
 prohibition^ How can the officers of the United States, or of the States, know 
 that gooda apparently part of the general mass, and not in the course of 
 exportation, will ever be exported? Will the mere word of the owner that 
 they are intended for exportation make them exports? This cannot for a 
 moment be contended. It would not be true, and would lead to the greatest 
 frauds. It ia true, as waa conceded in Coe v. Errol, that the prohibition to 
 the States against laying duties on imports or exports related to imports 
 from and exports to foreign countries; yet the decision in that case was 
 based on the postulate that when such imposts or duties are laid on imports 
 or exports from one State to another it amounts to a regulation of com- 
 merce among the States, and, therefore, is an invasion of the exclusive power 
 of Congress; so that the analogy between the two cases holds good, and what 
 would be constitutional or unconstitutional in the one case would be constitu- 
 tional or unconstitutional in the other." 
 
 65 92 U. S. 372 ; 23 L. ed. 657. 
 
 181 U. S. 283: 21 Slip. Ct. Rep. 648; 45 L. ed. 862.
 
 FEDERAL POWEBS OF TAXATION. 613 
 
 ordinary bills of lading, and of ten cents on export bills of lading. 
 To the contention that the tax -was on the bills of lading and not 
 one on the articles exported, the court say: " The fact that Con- 
 gress has not graduated the stamp tax on bills of lading does not 
 affect the question of power. . . . The question of the power 
 is not to be determined by the amount of the burden attempted to 
 be cast. . . . Constitutional mandates are imperative. The 
 question is never one of amount, but one of power. The appli- 
 cable maxim is obsta principiis, not de minimis rian curai lex." ** 
 In Cornell v. Coyne 68 was sustained the imposition of the same 
 manufacturing tax on an article manufactured for export, and 
 in fact exported, as upon other similar articles not intended for 
 export, the court saying that such a tax is not on the articles 
 exported '* but is only a tax or duty on the manufacturing of 
 articles in order to prepare them for export." '' The true con- 
 struction of the constitutional provision," the opinion continues, 
 " is that no burden by way of tax or duty can be cast upon the 
 exportation of articles, and does not mean that articles exported 
 are relieved from the prior ordinary burdens of taxation which 
 rest upon all property similarly situated." co 
 
 278. Direct Taxes. 70 
 
 The Constitution provides that capitation and other direct taxes 
 levied by Congress shall be apportioned among the States in pro- 
 
 GV Four justices dissented. They say: "Here, the small duty imposed, 
 without reference to the kind, quality, or value of the articles exported, 
 renders it certain that when Congress imposed such duty specifically on the 
 vellum, parchment, or paper upon which the bill of lading was written or 
 printed, it meant what is so plainly said; and no ground exists to impute a 
 purpose by indirection to tax the articles exported." The dissenting justices 
 also urge that the practice of the government for more than a century should 
 be held controlling. 
 
 63 192 U. S. 418; 24 Sup. Ct. Rep. 383; 48 L. ed. 504. 
 
 63 Two justices dissented, holding that inasmuch as there was no appreciable 
 interval of time between the commencement of manufacture and the prepara- 
 tion for exportation, it could not be reasonably said that the articles had 
 become a part of the general mass of property in the locality of manufacture, 
 and as such subject to a tax that could be distinguished from a tax upon 
 the articles as subject of export. 
 
 For a discussion of direct taxes with reference to the Territories and the 
 District of Columbia, see Chapter XXVI.
 
 614 UNITED STATES CONSTITUTIONAL LAW. 
 
 portion to their respective populations. In a number of instances 
 the constitutionality of federal taxes not thus apportioned has 
 been questioned upon the ground that they were, within the con- 
 stitutional meaning of the word, direct taxes. The decision of 
 the Supreme Court in each of these cases in which this point has 
 been raised has supplied an authoritative determination only as 
 to the direct or indirect character of the particular taxes in ques 
 tion. From these decisions, however, a judicial definition of 
 direct taxes may be drawn which makes the term include all taxes 
 levied upon property, real or personal, or upon the income de- 
 rived from such property, and all capitation or poll taxes. A 
 review of the cases will show that only within recent years has 
 the court been willing to adopt this comprehensive definition, and, 
 when it finally did so, the decision came as a surprise to very 
 many of the lawyers and courts of the country. 
 
 In 1798 in Hylton v. United States 71 it was held that a tax on 
 carriages was not a direct tax. Chase in his opinion said : " 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 deter- 
 mine the application of the rule. If it is proposed to tax any 
 specific article by the rule of apportionment, and it would evi- 
 dently create great inequality and injustice, it is unreasonable 
 to say that the Constitution intended such tax to be laid by that 
 rule. ... I am inclined to think, but of this I do not give a 
 judicial opinion, that the direct taxes contemplated by the Con- 
 stitution, 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." 
 
 Paterson in his opinion said : " Whether direct taxes, in the 
 sense of the Constitution, comprehend any other tax, than a capi- 
 tation tax and a tax on land, is a questionable point. If Con- 
 gress, for instance, should tax, in the aggregate or mass, things 
 that generally pervade all the States in the Union, then, perhaps, 
 
 7i3 Ball. 171; 1 L. ed. 556.
 
 FEDERAL. POWERS OF TAXATION. 615 
 
 the rule of apportionment would be the most proper, especially if 
 an assessment was to intervene. This appears from the practice 
 of some of the States to have been considered as a direct tax. 
 Whether it be so, under the Constitution 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 ob- 
 jects, that the framers of the Constitution contemplated as falling 
 within the rule of apportionment, were a capitation,. tax and a tax 
 on land." 
 
 Iredell, in his opinion, said : "As all direct taxes must be ap- 
 portioned, 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." 
 
 In Pacific Insurance Co. v. Soule 72 a tax on receipts of insur- 
 ance companies was held to be not a direct tax, the diet a in Hyl ton 
 v. United States being relied upon as authority. 
 
 In Veazie Bank v. Fenno 73 a tax on the circulating notes of 
 state banks was held to be an indirect tax. 
 
 In Scholey v. Hew 74 a tax on succession to real estate was held 
 indirect, the tax being declared to be one not on the land, but 
 upon the right of succession. The court say : " Whether direct 
 taxes, in the sense of the Constitution, comprehend any other tax 
 than a capitation tax and a tax on land is a question not abso- 
 lutely decided, nor is it necessary to determine it in the present 
 case, as it is expressly decided that the term does not include the 
 tax on income, which cannot be distinguished in principle from 
 a succession tax such as the one involved in the present con- 
 troversy." T5 
 
 "7 Wall. 433; 19 L. cd. 95. 
 "8 Wall. 533; 19 L. ed. 482. 
 
 74 23 Wall. 331 ; 23 L. ed. 99. 
 
 75 Citing Ins. Co. v. Soule, 7 Wall. 433; 19 L. ed. 95; Veazie Bank v. Fenno, 
 8 Wall. 533 ; 19 L. ed. 482.
 
 616 UNITED STATES CONSTITUTIONAL LAW. 
 
 In Springer v. United States 76 "the income taxes provided for 
 by the law of 1862 were held not to be direct taxes. After enumer- 
 ating the various direct taxes previously levied, the court say: 
 " It will thus be seen that wherever 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 ; and, 2, such an exten- 
 sion of the tax lessened the burden upon the real estate where 
 slavery existed, while the result to the National Treasury was 
 the same. . . . 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 govern- 
 ment, though not conclusive, is a consideration of great weight" 
 
 After reviewing earlier cases and citing the opinions of leading 
 commentators, the opinion concludes : " Our conclusions are, that 
 direct taxes, within the meaning of the Constitution, are only 
 capitation taxes, as expressed in that instrument, and taxes on 
 real estate." 
 
 279. Income Tax Case Pollock v. Farmers' L. & T. Co. 
 
 The foregoing line of cases, concluding with the emphatic asser- 
 tion of a unanimous court in Springer v. United States, justly 
 gave rise to the general opinion that the only taxes to be deemed 
 direct taxes within the constitutional meaning of the term were 
 capitation taxes and taxes on real estate. However, in the so- 
 oalled Income Tax Case Pollock v. Farmers' Loan and Trust 
 Co. 77 decided in 1895, this doctrine was overthrown, the court 
 upon the first hearing holding that taxes on the rents 'or income 
 of real estate are direct taxes; and, upon a rehearing, holding 
 that taxes on personal property or on the income derived from 
 personal .property are equally direct 
 
 Upon the first hearing the crucial point was, of course, whether 
 a tax upon the income derived from real estate was distinguish-' 
 
 70 102 TJ. S. 586 ; 20 "L. ed. 253. 
 
 "157 U. S. 429; 15 Sup. Ct. Rep. 673; 39 L. ed. 759, and 158 U. S. (501; 
 15 Sup. Ct. Rep. 912; 39 L. ed. 1108.
 
 FEDEKAL POWERS OF TAXATION. 617 
 
 able from a tax on the real estate itself. This being decided in 
 the negative, it necessarily followed that inasmuch as a tax on the 
 real estate is admittedly a direct tax, a tax on the income derived, 
 therefrom would be direct. " The real question is," the majority 
 justices declare, " is there any basis upon which to rest the con- 
 tention that real estate belongs to one of the two great classes of 
 taxes, and the rent or income which is the incident of its owner- 
 ship belongs to the other ? We are unable to perceive any ground 
 for the alleged distinction. An annual tax upon the annual value 
 or annual user of real estate appears to us the same in substance 
 as an annual tax on the real estate, which would be paid out of 
 the rent or income." >s 
 
 "8 In a dissenting opinion, concurred in by Justice Harlan, Justice White, 
 after a review of the earlier adjudications, say-: 
 
 ' The facts, then, are briefly these : At the very birth of the government a 
 contention arose as to the meaning of the word ' direct.' That controversy 
 was determined by the legislative and executive departments of the govern- 
 ment. Their action came to this court for review, and it was approved. 
 Every judge of this court who expressed an opinion, made use of language 
 which clearly showed that he thought that the word ' direct ' in the Con- 
 stitution applied only to capitation taxes and taxes directly on land. There- 
 after the construction thus given was accepted everywhere as definite. Ths 
 matter came again and again to this court, and in every case the original 
 ruling was adhered to. The suggestions made in the Hylton case were 
 adopted here, and in the last case here decided, reviewing all the others, this 
 court said that direct taxes within the meaning of the Constitution were only 
 taxes on land and capitation taxes. And now, after a hundred years, after 
 long continued action by other departments of the government, and after 
 repeated adjudications of this court, this interpretation is overthrown, and 
 the Congress is declared not to have a power of taxation which may at some 
 time, as it has in the past, prove necessary to the very existence of the grrvern- 
 ment. By what process of reasoning is this to be done? By resort to theories, 
 in order to construe the word ' direct ' >n its economic sense, instead of in 
 accordance with its meaning in the Constitution, when the very resnlt of the 
 history which I have thus briefly recounted is to show that the economic con- 
 struction of the word was repudiated by the framere themselves, and has been 
 time and time again rejected by this court: by a resort to the language of the 
 framers and a review of their opinions, although the facts plainly show that 
 they themselves settled the question which the court now virtually nnsettles. 
 In view of all that has taken place and of the many decisions of this court, 
 the matter at issue here ought to be regarded as closed forever. ... It 
 i- -aid that a tax on the rentals is a tax on the land, as if the Act here under 
 consideration imposed an immediate tax on the rentals. This statement, I
 
 618 UNITED STATES CONSTITUTIONAL LAW. 
 
 A rehearing of the case having been allowed the court broad- 
 ened still further the scope of the term " direct taxes," making 
 it include taxes on personal property and upon the income there- 
 from. To this doctrine four justices dissented. 
 
 In Nicol v. Ames 79 the scope of the doctrine laid down in the 
 Income Tax Case was clearly stated. In this case it was argued 
 that a duty levied by the War Revenue Act of 1898 upon sales 
 or agreements of sale of products or merchandise at exchanges or 
 boards of trade was a direct tax and as such unconstitutional be- 
 cause not properly apportioned. The court, however, held that 
 the tax was in the nature of a duty or excise tax for the privilege 
 of doing business at such places and not a tax on the products or 
 merchandise sold, and, therefore, not a direct tax. The court 
 say : " It is asserted to be a direct tax, because it is a tax upon 
 the sale of property measured by the value of the thing sold, and 
 such a tax is a direct tax upon the property itself, and, therefore, 
 subject to the rule of apportionment. Various cases are cited, 
 /from Brown v. Maryland (12 Wheat. 419; 6 L. ed. 678) down 
 to those involving the validity of the income tax (Pollock v. Trust 
 "Co., 157 U. S. 429; 15 Sup. Ct, Rep. 673; 39 L. ed. 759) for the 
 purpose of proving the correctness of this proposition. All the 
 cases involved the question whether the taxes to which objection 
 was taken amounted practically to a tax on the property. If this 
 tax is not- on the property, or on the sale thereof, then these cases 
 do not apply." 
 
 In Patton v. Brady 80 a tax upon tobacco, however prepared, 
 manufactured, and sold, for consumption or sale, was held not a 
 direct tax but an excise tax, " not a tax upon property as such, 
 
 submit, is a misconception of the issue. The point involved is whether a tax 
 on net income, when such income is made up .by aggregating all sources of 
 revenue and deducting repairs, insurance, losses in business, exemptions, etc., 
 becomes, to the extent to which real estate revenues may have entered into 
 the gross income, a direct tax on the land itself. In other words, does that 
 which reaches an income, and thereby reaches rentals indirectly, and readies 
 the land by a double indirection, amount to a direct levy on the land itself? 
 It seems to me the question when thus accurately stated furnishes its own 
 negative response." 
 
 79 173 U. S. 509; 19 Sup. Ct. Rep. 522; 43 L. ed. 786. 
 
 80184 U. S. 608; 22 Sup. Ct. Rep. 493; 46 L. ed. 713.
 
 FEDERAL POWEBS OF TAXATION. 619 
 
 but upon certain kinds of property, having reference to their 
 origin and intended use." 
 
 In Spreckles Sugar Refining Co. v. McClain 81 the special 
 excise tax imposed on sugar refining by the act of 1898, and 
 measured by the gross annual receipts in excess of a named sum, 
 was held to be not a direct tax. " Clearly," the court say, " the 
 tax is not imposed upon gross annual receipts as property, but 
 only in respect of the carrying on or doing the business of refin- 
 ing sugar. It cannot be otherwise regarded because of the fact 
 that the amount of the tax is measured by the amount of the gross 
 annual receipts." 
 
 280. The Federal Corporation Tax of 1909. 
 
 Section 38 of the Tariff Law of 1909 contains the provision 
 that every corporation " organized for profit and having a capital 
 stock represented by shares . . . shall be subject to pay annu- 
 ally a special excise tax with respect to the carrying on or doing 
 business by such corporation . . . equivalent to one per centum 
 upon the entire net income over and above five thousand dollars 
 received by it from all sources." 
 
 The constitutionality of this tax, as being indirect, would seem 
 to be supported by the decisions cited in the preceding paragraphs, 
 and by that in Knowlton v. Moore, 82 considered in the next para- 
 graph. It is true that in the Income Tax Case 83 the court held 
 that a tax upon income from property is not to be distinguished 
 from a tax on the property itself, but it is probable that the tax 
 levied by Section 38 of the Tariff Law of 1909 will be held to be 
 a tax not on the income of the corporations, but one in the nature 
 of a franchise or excise tax. The constitutionality of such a fed- 
 eral tax upon corporations chartered by the States would seem to 
 be disposed of by the argument in Veazie Bank v. Fenno. 84 
 
 81 192 U. S. 397; 24 Sup. Ct. Rep. 37G; 48 L. ed. 496. 
 2 178 U. S. 41; 20 Sup. Ct. Rep. 747; 44 L. ed. 909. 
 
 83 Pollock v. Farmers L. & T. Co., 158 U. S. 601; 15 Sup. Ct. Rep. 912; 39 
 L. ed. 1108. 
 
 84 8 Wall. r>33; 19 L. ed. 482, See also South Carolina v. United States, 199 
 U. S. 437; 2C Sxip. Ct. Rep. 110; 50 L. ed. 261.
 
 620 UNITED STATES CONSTITUTIONAL, LAW. 
 
 281. Federal Inheritance Taxes not Direct. 
 
 The constitutional definition of a direct tax was again raised 
 in Knowlton v. Moore 85 with reference to the constitutionality 
 of the inheritance taxes levied by the War Revenue Act of 1898. 
 The court applied the well established doctrine that the taxes in 
 question were not upon the property inherited but upon the right 
 to inherit, and, therefore, not being taxes upon property but upon 
 a right, were in the nature of an excise tax, and as such indirect. 85 
 
 85176 U. S. 41; 20 Kup. Ct. Rep. 747; 44 L. ed. 969. 
 
 86 To the argument that the doctrine declared in Scholey v. flew (23 Wall. 
 331; 23 L. ed. 99), had been practically overruled by the Income Tax Case, 
 the court say: 
 
 " It is asserted that it was decided in the Income Tax Cases that in order to 
 determine whether a tax be direct within the meaning of the Constitution, it 
 must be ascertained whether the one upon whom by law the burden of paying 
 it is first cast can thereafter shift it to another person. If he cannot, the 
 tax would then be direct in the constitutional sense, and hence, however 
 obvious in other respects it might be a duty, impost, or excise, it cannot be 
 levied by the rule of uniformity, and must be apportioned. From this assumed 
 premise it is argued that death duties cannot be shifted from the one on 
 whom they are first cast by law, and therefore they are direct taxes requiring 
 apportionment. The fallacy is in the premise It is true that in the income 
 tax cases the theory of certain economists by which direct and indirect taxes 
 are classified with reference to the aibility to shift the same was adverted to. 
 But this disputable theory was not the basis of the conclusion of the court. 
 The constitutional meaning of the word direct was the matter decided. Con- 
 sidering that the constitutional rule of apportionment had its origin in the 
 purpose to prevent taxes on persons solely because of their general ownership 
 of property from being ievied by any other rule than that of apportionment, 
 two things were decided by the court: First, that no sound distinction existed 
 between a tax levied on a person solely because of his general ownership of 
 real property, and the same tax imposed solely because of his general owner- 
 ship of personal property. Secondly, that the tax on the income derived from 
 such property, real or personal, was the legal equivalent of a direct tax on 
 the property from which said income was derived, and hence must be appor- 
 tioned. These conclusions, however, lend no support to the contention that it 
 was docidfd that duties, imposts and excises which are not the essential 
 equivalent of a tax on property generally, real, or personal, solely because of 
 its ownership, must be converted into direct taxes, because it is conceived that 
 it would be demonstrated by a close analysis that they could not be shifted 
 from the person upon whom they first fall. The proposition now relied upon 
 was considered and refuted in Nicol v. Ames, 173 U. S. 509; 19 Sup. Ct. Rep. 
 522 ; 43 L. ed. 786."
 
 FEDERAL POWEES OF TAXATION. 621 
 
 282. Federal Taxation and Due Process of Law: Hearing Re- 
 
 quired 
 
 Due process of law requires that in the ease of an ad valorem 
 tax an opportunity shall be given the taxpayer to appear and give 
 evidence as to the proper valuation of the property which is 
 assessed. 87 In other cases, however, no notice or opportunity for 
 hearing need be given the taxpayer. In Hagar v. Reclamation 
 District 88 the court say: " Of the different kinds of taxes which 
 the State may impose, there is a vast number of which, from their 
 nature, no notice can be given to the taxpayer, nor would notice 
 be of any possible advantage to him, such as poll taxes, license 
 tuxes (not dependent upon the extent of his business) and gen- 
 erally, specific taxes on things or persons or occupations. In such 
 cases the legislature, in authorizing the tax, fixes its amount, and 
 that is the end of the matter. If the tax be not paid, the property 
 of the delinquent may be sold and he be thus deprived of his 
 property. Yet there can be no question, that the proceeding is 
 due process of law, as there is no inquiry into the weight of evi- 
 dence, or other element of a judicial nature, and nothing could be 
 changed by hearing the taxpayer. Xo right of his is, therefore, 
 invaded. Thus, if the tax on animals be a fixed sum per head, 
 or on articles a fixed sum per yard or bushel or gallon, there is 
 nothing the owner can do which can affect the amount to be col- 
 lected from him. -So, if a person wishes a license to do business 
 of a particular kind or at a particular place, such as keeping a 
 hotel or restaurant, or selling liquors or cigars or clothes, he has 
 only to pay the amount required by the law and go into business. 
 There is no need in such cases for notice or hearing. So,. also, 
 if taxes are imposed in the shape of licenses for privileges, such 
 as those on foreign corporations for doing business in the State, 
 or on domestic corporations for franchises, if the parties desire 
 the privilege, they have only to pay the amount required. In 
 such cases there is no necessity for notice or hearing. The amount 
 
 *7 Or. if it be a special assessment for the pnrpose of some pnhlic^ improve- 
 ment. as to the extent to which the property in question will be benefited 
 thereby. 
 
 ss 111 17. S. 701; 4 Sup. Ct. Rep. 663; 28 L. ed. 5G9.
 
 622 UNITED STATES CONSTITUTIONAL LAW. 
 
 of the tax would not be changed by it But where a tax is levied 
 on property, not specifically but according to its value, to be ascer- 
 tained by assessors appointed for that purpose upon such evidence 
 as they may obtain, a different principle comes in. The officers, in 
 estimating the value, act judicially, and in most of the States pro- 
 vision is made for the correction of errors committed by them, 
 through boards of revision or equalization, sitting at designated 
 periods provided by law, to hear complaints respecting the justice 
 of the assessments. The law in prescribing the time when such 
 complaints will be heard, gives all the notice required, and the 
 proceeding by which the valuation is determined, though it may 
 be followed, if the tax be not paid, by a sale of the delinquent's 
 property, is due process of law." 
 
 283. Hearing Before Administrative Tribunal Sufficient. 
 
 It is not necessary that the hearing thus required in the case 
 of ad valorem taxes should be before a court of justice. The 
 hearing may be had and, in fact, is usually had, before an admin- 
 istrative board whose action in this respect is judicial in character 
 and whose determinations may be final and conclusive in the mat- 
 ter. Thus, for example, by Section 2930 of the Revised Statutes, 
 it is provided that in the matter of appraisement of imports an 
 appeal shall be allowed the importer from the collector of customs 
 to " one discreet and experienced merchant to be associated with 
 one of the general appraisers wherever practicable, or two discreet 
 and experienced merchants," but that " if they shall disagree, the 
 collector shall decide between them; and the appraisement thus 
 determined shall be final and be deemed to be the true value, and 
 the duties shall be levied thereon accordingly." Provision is, 
 however, made for relief in cases where the collectors have acted 
 fraudulently or upon a principle not sanctioned by law, or where 
 they have in any way transcended the powers given them by 
 Congress.
 
 FEDERAL POWERS OF TAXATION. 623 
 
 In Hilton v. Merritt* 9 the constitutionality of these provisions 
 was upheld. In Auffmordt v. Hedden 90 the court say : " Xor is 
 there anything in the objection that Section 2930 of the Revised 
 Statutes is unconstitutional in making the decision of the apprais- 
 ers final, and that the plaintiffs had a right to have the question 
 of the dutiable value of the goods passed upon by a jury. As 
 said before, the government has the right to prescribe the condi- 
 tions attending the importation of goods upon which it will permit 
 the collector to be sued. One of those conditions is that the ap- 
 praisal shall be regarded as final; and it has been held by this 
 court, in Arnson v. Murphy (109 U. S. 238 ; 3 Sup. Ct. Rep. 184 ; 
 27 L. ed. 920), that the right to bring such a suit is exclusively 
 statutory, and is substituted for any and every common-law right. 
 The action is, to all intents and purposes, with the provision for 
 refunding the money if the importer is successful in the suit, an 
 action against the government for moneys in the treasury. The 
 provision as tp the finality of the appraisement is virtually a rule 
 of evidence to be observed in the trial of the suit brought against 
 the collector." 
 
 Tn this case it was held that it was not necessary, and that it 
 had not been the intention of Congress that the hearing before 
 the appraisers or collector should be characterized by all the for- 
 malities of a court of law, but that the proceedings might, and 
 from necessity would generally have to be of a summary char- 
 acter. The court thus held that due process of law had not been 
 denied because the importer or his agent had been practically 
 exr-luded from the hearing upon the reappraisement, that he had 
 not been permitted to confront the opposing witnesses by testimony 
 on his own behalf, or allowed the aid of counsel. " !N"o govern- 
 ment," said the court, " would collect the revenues or perform its 
 necessary functions, if the system contended for by the plaintiffs 
 were to prevail." 
 
 89 110 U. S. 97; 3 Sup. Ct. Rep. 548; 28 L. ed. 83. 
 > 137 U. S. 310; 11 Sup. Ct. Kep. 103; 34 L. ed. 674.
 
 62-i UNITED STATES CONSTITUTIONAL LAW. 
 
 284. Summary Modes of Collection. 
 
 For the collection of taxes, as well as in the appraisement of 
 property for taxation, summary modes of procedure may be had, 
 the justification being that without such means no government 
 could maintain itself. 91 
 
 si The leading case is Murray's Lessee v. Hoboken Land Improvement Co., 
 18 How. 272; 15 L. ed. 372. In this case the account of a collector <f 
 customs having been audited by the First Auditor of the Treasury Depart- 
 ment, and certified by the First Comptroller, a distress warrant for the 
 balance found due the United States was issued by the Solicitor of the 
 Treasury in accordance with the provisions of an act of Congress, and levied 
 upon the lands of the collector. To the contention that this proceeding denied 
 to the collector due process of law the court replied : " Tested by the common 
 and statute law of England prior to the emigration of our ancestors, and by 
 the laws of many of the States at the time of the adoption of this amendment, 
 the proceedings authorized by the act of 1820 cannot be denied to be duo 
 process of law, when applied to the ascertainment and recovery of balances 
 due to the government from a collector of customs, unless there exists in the 
 Constitution some other provision which restrains Congress from authorizing 
 hitch proceedings. For, though ' due process of law ' generally implies and 
 includes actor, reus, judex, regular allegations, opportunity to answer, and a 
 trial according to some settled course of judicial proceedings (2 Inst. 47, 50; 
 Hoke v. Henderson, 4 Dev. N. C. 15; Taylor v. Porter, 4 Hill. 146; Van 
 Zandt v. Waddel, 2 Yerg. 260; Bank v. Cooper, Id. 5DO; Jones' Heirs v. 
 Perry, 10 Yerg. 59; Greene v. Briggs, 1 Curt. 311), yet this is net uni- 
 versally true. There may be, and we have seen that there are, cases, under 
 the law of England after Magna Charta, and as it was brought to this country 
 and acted on here, in which process, in its nature final, issues against the 
 body, lands, ajid goods of certain public debtors without any such trial ; and 
 this brings us to the question whether those provisions of the Constitution 
 which relate to the judicial power are incompatible with these proceedings. 
 The power to collect and disburse revenue, and to make all laws 
 which shall be necessary and proper for carrying that power into effect, 
 includes all known and appropriate means of effectually collecting and dis- 
 bursing that revenue, unless some such means should be forbidden in some 
 other part of the Constitution. The power has not been exhausted by the 
 receipt of the money by the collector. Its purpose is to raise money, and use 
 it in payment of the debts of the government ; and, whoever may have posses- 
 sion of the public money until it is actually disbursed, the power to use those 
 known and appropriate means to secure its due application continues. As 
 we have already shown, the means provided by the act of 1820 do not differ 
 in principle from those employed in England from remote antiquity and in 
 many of the States, so far as we know, without objection for this purpose, 
 at the time the Constitution was formed. It may be added that probably 
 there are few governments which do or can permit their claims for public
 
 FEDERAL POWERS OF TAXATION. 625 
 
 285. Notice. 
 
 Due process of law in matters of taxation does not require the 
 same kind of notice as is required in a suit of law, or in proceed- 
 ings for taking private property under the power of eminent do- 
 main. Xo violation of due process of law is committed when a tax 
 is collected according to customary forms and established usages, 
 or in subordination to the principles which underlie them. " This 
 must be so," the court say in King v. Mullins, 92 " else the existence 
 of government might be put in peril by the delays attendant upon 
 formal judicial proceedings for the collection of taxes." re 
 
 In most of the States it is provided by statute that the assess- 
 ment or collection of taxes shall not be restrained by a judicial 
 writ; and, since 1867, by act of Congress it has been provided 
 that " no suit for the purpose of restraining the assessment or 
 collection of taxes shall be maintained in any court." w 
 
 The constitutionality of this provision has been sustained 
 whenever questioned, administrative necessity furnishing the 
 justification. In Cheatham v. United States 95 the court say: " If 
 there existed in the courts, state or national, any general power of 
 impeding or controlling the collection of taxes or relieving the 
 hardship incident to taxation, the very existence of tha Go^ ?rn- 
 nient might be placed in the power of a hostile judiciary." And 
 in the Railroad Tax Cases 96 the court say : " The Government of 
 the United States has provided, both in the customs and in the 
 
 taxes, either on the citizen or the officer employed for their collection or 
 disbursement, to become subjects of judicial controversy, according to vhe 
 course of the law of the land. Imperative necessity has forced a distinction 
 bc-t\veen such claims and all others, which has sometimes been carried out by 
 summary method* of proceeding, and sometimes by systems of fines ai.d 
 penalties, but always in some way observed and yielded to." 
 n I". S. 404:' IS Sup. Ct. Hop. flitf : 43 L. ed. 214. 
 
 93 Cf. Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232; 10 Sup. Ct. Rep. 53i; 
 33 L. ed. 892; Turpin v. Lemon. 1ST U.S. .11: 23 Sup. Ct. Rep. 20 ; 47 L. ed. 70; 
 Londoner v. Denver. 210 U. S. 373 ; 28 Sup. Ct. Rep. 708 ; 52 L. ed. 1103; Judsor, 
 On Taxation, Chapter 8, and McGehee, Due Process of Lair. pp. 235/f. 
 
 94 Rev. Stat.. $ 3224. This provision of course applies only to the federal 
 courts, and by the courts has been construed to relate only to federal taxes. 
 In 1009 a bill was introduced into Congress to amend this section so as to 
 make it apply to state, county, municipal and district taxes as well. 
 
 9--JV2 I*. S.'so: 23 L. ed. oi!!. 
 9 92 U. S. 575 ; 23 L. ed. 663. 
 
 40
 
 626 UNITED STATES CONSTITUTIONAL LAW. 
 
 internal revenue, a complete system of corrective justice in regard 
 to taxes imposed by the General Government, which in both 
 branches is founded upon the idea of appeals within the executive 
 departments. If the party aggrieved does not obtain satisfaction 
 in this mode, there are provisions for recovering the tax after it 
 has been paid by suit against the collecting officer. But there is no 
 place in this system for an application to a court of justice until 
 after the money is paid. That there might be no misunderstand- 
 ing of the universality of this principle, it was expressly enacted, 
 in 1867, that ' no suit for the purpose of restraining the assess- 
 ment or collection of any tax shall be 'maintained in any court,' 
 (Rev. Stat, 3224.) And though this was intended to apply 
 alone to taxes levied by the United States, it shows the sense of 
 Congress of the evils to be feared if courts of justice could, in any 
 case, interfere with the process of collecting the taxes on which 
 the Government depends for its continued existence. It is a wise 
 policy. It is founded on the simple philosophy derived from the 
 experience of ages that the payment of taxes has to be enforced 
 by summary and stringent means against a reluctant and often 
 adverse sentiment; and to do this successfully, other instrumen- 
 talities and other modes of procedure are necessary than those 
 which belong to a court of justice." 
 
 286. Borrowing Power of the United States: Legal Tender. 
 
 The Federal Government is given power " to borrow money on 
 the credit of the United States." 
 
 The power thus given is free from limitations. In the draft 
 of the Constitution reported by the Committee on Detail to the 
 Constitutional Convention, the draft read, " To borrow money 
 and emit bills on the credit of the United States." The express 
 authorization to emit bills of credit was stricken out by the Con- 
 vention, but, apparently, not with the intention of thereby depriv- 
 ing the United States of the power, but that the power would be 
 included in the general authority to borrow money. That this 
 is so, has not been questioned by the courts. There has, however, 
 been serious controversy as to the power of the United States to 
 give a legal tender character to these bills when issued. 
 
 The debates in the Constitutional Convention, and other pro-
 
 FEDERAL POWERS OF TAXATION. 627 
 
 visions of the Constitution, 97 would seem to indicate an intention 
 upon the part of the framers of the Constitution that a legal ten- 
 der character might be given by Congress only to the metallic 
 money coined by the United States, and the Supreme Court in 
 Hepburn v. Griswold 98 so held as regards the payment of debts be- 
 twe.en private parties created before the enactment of the law. In 
 Knox v. Lee," however, four justices dissenting, this doctrine was 
 overthrown, and the issuance of legal tender notes authorized as a , 
 legitimate war power. And finally, in the Legal Tender Cases ( 
 Juillard v. Greenman 1 the authority in question was conceded to 
 oxist as implied in the general power to borrow money, whether 
 in times of peace or of war, the court saying : " Such being our 
 conclusion in matter of law, the question whether at any particu- 
 lar time, in war or in .peace, the exigency is such, by reason of 
 unusual and pressing demands on the resources of the govern- 
 ment, or of the inadequacy of the supply of gold and silver coin to 
 furnish the currency needed for the uses of the government and 
 of the people, that it is, as a matter of fact, wise and expedient 
 to resort to this means, is a political question, to be determined 
 by Congress when the question of exigency arises, and not a 
 judicial question, to be afterwards passed upon by the courts." 
 
 In Knox v. Lee it is to be observed that the legal tender power 
 is deduced not wholly from the power to borrow money but from 
 the ensemble of powers which are granted to the L^nited States, 
 which aggregate of powers, the court holds, evidences the intention 
 to equip the Central Government with all the powers necessary 
 for its maintenance as an effective sovereign State. The doctrine 
 thus comes .perilously near to an acceptance of the doctrine of 
 " inherent sovereign powers." 2 Also the court declare that it 
 is not indispensable to the existence of any power claimed for the 
 Federal Government that it should be found specified in the words 
 of the Constitution, or clearly and directly traceable to some one 
 of the specified powers, but that its existence may be deduced from 
 a combination of several exprr--ly granted powers. 
 
 97 ('/. Tucker's argument, The Constitution of the United States, I, 
 988 \Viill. Hi I.",; 19 L. ed. 513. 
 9312 Wall. 457: 20 L. e<l. 287. 
 
 i 110 U. S. 421 : 4 Sup. Ct. Hop. 122: 28 L. ed. 204. 
 Chapter 111 of this treatise.
 
 628 UXITED STATES CONSTITUTIONAL LAW. 
 
 The various powers"f rom which, in the aggregate, the legal tender 
 power is derived are summarized in the following paragraph, 
 taken from the opinion of the court in Juillard v. Greenman: 
 
 " 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 inci- 
 dental to the exercise of those great powers, to emit bills of credit, 
 to charter national banks and to provide a national currency for 
 the Avhole 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 
 belonging to sovereignty in other civilized Xations, and not ex- 
 pressly withheld from Congress by the Constitution; we are 
 irresistibly 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, condu- 
 cive and plainly adapted to the execution of the undoubted powers 
 of Congress, consistent with the letter and spirit of the Constitu- 
 tion and, therefore, within the meaning of that instrument, l neces- 
 sary and proper for carrying into execution the powers vested by 
 this Constitution in the Government of the United States.' ' 
 
 As regards the contention that the effect of applying- the legal 
 tender law to prior contracted debts is to deprive the creditor of 
 property without due process of law, in violation of the Fifth 
 Amendment, the court in Knox v. Lee say : " That provision has 
 always been understood as referring only to a direct appropria- 
 tion, and not to consequential injuries resulting from the exer- 
 cise of lawful power. It has never been supposed to have any 
 bearing upon or to inhibit 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 whoever 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." 
 
 '1 
 
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 OCT 2 4 1960 
 
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 JMI13 1964 
 
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