CORNELL UNIVERSITY LIBRARY BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND GIVEN IN 1891 BY HENRY WILLIAMS SAGE PRINCIPLES OF THE CONSTITUTIONAL LAW OF THE UAITED STATES BY WESTEL W. WILLOUGHBY PROFESSOR OF POLITICAL SCIENCE IN THE JOHNS HOPKINS UNIVERSITY. AUTHOR OF ‘‘ THE CONSTITUTIONAL LAW OF THE UNITED STATES,” ‘ THE AMERICAN CONSTITUTIONAL SYSTEM,’’ ETC. Cornell a Library JK274 .W73 1912 ‘iii ui i 924 030 468 8 olin NEW YORK BAKER, VOORHIS & CO. 1912 RseéGs {4 CopyricHT, 1912, By WESTEL W. WILLOUGHBY PRESS OF T. MOREY & SON GREENFIELD, MASS., U. S. A. PREFACE This volume is an abridgment of the author’s larger treatise in two volumes, published in 1910 under the title The Constitutional Law of the United States. The aim has been to present the general principles of our constitutional jurisprudence in a form suitable for class-room use. In pursuance of this aim care has been taken to cite those cases which not only support the positions stated in the text but which will best repay individual examination and study by the student. In particular the effort has been made to suggest, and in a measure to discuss, the unsettled questions of our Federal jurisprudence. The necessary limits of space have prevented in many instances an adequate presentation of the arguments supporting the doctrines stated, but, from a pedagogic point of view this may be a merit rather than a defect, for it will furnish opportunity for a presentation by the students of the court’s reasoning as gained by a reading of the cases, and a criticism by the instructor of the reasoning as thus pre- sented. For the convenience of both the instructor and the student reference is made in all cases to the Supreme Court Reporter and to the Lawyers’ Co-operative Edition, as well as to the official reports of the Supreme Court of the United States. The author is under great obligation to Mr. J. Wallace Bryan of the Maryland Bar for his aid in reading the proof of this volume. TABLE OF CONTENTS PREFACE: 4. 590%, ak SB ecw! AO BPS TABLE OF CASES CHAPTER I INTRODUCTORY—PRELIMINARY DEFINITIONS State and government distinguished—The anity ie in- divisibility of sovereignty—Distinction between Con- federacy and Federal State—Constitutional law— The American doctrine of the supremacy of the Con- stitution. CHAPTER II THE SUPREMACY OF FEDERAL AUTHORITY ..... . Federal supremacy. CHAPTER III PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION—CIRCUM- stances UnpER WuicH THE Courts WiLL Hop an Act or Coneress Voip . Extrinsic silence eeohuiesl tenina— Art. I, § 8, cl. 3. Law oF THE UNITED StTaTEs 113 protecting the Indians and the non-existence of a power to do so in the States.® Federal jurisdiction exclusive. Cherokee Nation v. Georgia The exclusiveness of this Federal jurisdiction, and, con- sequently, 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,’ decided in 1831. This case came before the court on a motion on behalf of the Cher- okee Nation of Indians for a subpoena and for an injunc- tion 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 Chero- kee Nation was not a foreign State within the meaning of the clause of the Constitution which extends the Fed- eral judicial power over controversies ‘‘between a State or the citizens thereof, and foreign States, citizens, or subjects,” and gives to the Supreme Court original juris- diction 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 heretofore unquestioned right, to the lands they oc- cupy until that right shall be extinguished by a voluntary cession to our government, yet it may be well doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, 6 United States v. Kagama, 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 80 L. ed. 228. 75 Pet. 1;8 L. ed. 25. R 114 PRINCIPLES OF THE CONSTITUTIONAL be denominated foreign nations. They may, more cor- rectly, perhaps, be denominated domestic dependent na- tions. 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 its guard- ian. They look to our government 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 foreign countries, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political con- nection with them, would be considered by all as an in- vasion of our territory and an act of hostility.” In the great case of Worcester v. Georgia,’ decided in 1832, the question of the political status of the Indians again came before the Supreme Court for discussion and a doctrine laid down which has remained unquestioned to the present day. This case, like Cherokee Nation ». Georgia, grew out of the attempt of Georgia to exercise jurisdiction over Indian territories situated within the State’s limits. This action of the State was deckared un- constitutional and void, the exclusive authority of the Federal Government being emphatically asserted, “the Cherokee Nation” the court say, “is a distinct com- munity, occupying its own territory, with boundaries ac- curately described, in which the laws of Georgia can have no force. . . . The whole intercourse between this nation is by our Constitution and laws, vested in the Govern- ment of the United States.” °6 Pet. 515; 8 L. ed. 483. See also The Kansas Indians, 5 Wall. 737; 18 L. ed. 667; The New York Indians, 5 Wall. 761; 18 L. ed. 708. Law oF THE UNITED STATES 115 Naturalization of Indians by statute In 1884, in the case of Elk v. Wilkins,® the question arose as to whether an Indian, born a member of one of the In- dian 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 afterwards voluntarily separating himself from his tribe and taking up residence among white citizens. The court held negatively, the statement being made that “the alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without action or assent of the United States.” Since this decision a number of acts of Congress have been passed which have had the effect of destroying, to a very considerable extent, the autonomous tribal govern- ments of the Indians and of subjecting them to the im- mediate legislative control of Congress instead of to the treaty-making power.” At various times during past years, Congress has de- clared, as to particular Indian tribes, that their lands should be divided and held in severalty by their respective members, and that, thereupon, such Indians should be- come citizens of the United States, and pass immediately from the exclusive jurisdiction of the Federal Government to that of the States in which they reside. By the General Land in Severalty Law, known as the “Dawes Act,” ap- proved 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 they make citizens of Indians 9112 U.S. 94; 5 Sup. Ct. Rep. 41; 28 L. ed. 643. 10 As to the constitutionality of this legislation, and its effect upon the jurisdiction of the States, see United States v. Kagama, 118 U.S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228. 116 PRINCIPLES OF CONSTITUTIONAL Law against their will. The action is taken at the discretion of the President and the result is citizenship." 11 For cases sustaining this legislation, and declaring generally the extent of the legislative authority of Congress over the Indians, see Cherokee Nation v. Southern Kansas Ry. Co., 185 U.S. 641; 10 Sup. Ct. Rep. 965; 34 L. ed. 295; Stephens v. Cherokee Nation, 174 U.S. 445, 19 Sup. Ct. Rep. 722; 43 L. ed. 1041; Cherokee Nation v. Hitch- cock, 187 U. S. 294; 23 Sup. Ct. Rep. 115; 47 L. ed. 183; Lone Wolf v. Hitchcock, 187 U. 8. 553; 23 Sup. Ct. Rep. 216; 47 L. ed. 299; United States v. Rickert, 188 U. 8. 432; 23 Sup. Ct. Rep. 478; 47 L. ed. 532; In re Hoff, 197 U.S. 488; 25 Sup. Ct. Rep. 506; 49 L. ed. 848; Tiger v. Western Investment Co., 31 Sup. Ct. Rep. 378; Hallowell v. United States, 31 Sup. Ct. Rep. 587. CHAPTER XV THE ADMISSION OF NEW STATES The admission of new States The process of admitting new States to the American Union is a comparatively simple one and but few con- stitutional questions have arisen in connection with it. The constitutional clause governing the subject reads as follows: ‘“‘New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; or 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.’”! It will 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 abso- lutely to the discretion of Congress. There can be no question that at the time of the adoption of the Consti- tution 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 circumstances that could not be 1 Art. IV, § 3. 117 118 PRINCIPLES OF THE CONSTITUTIONAL foreseen by defining in the Constitution itself the condi- tions 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 commonwealths, 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, that of Texas, a new State was received by the direct process of incorporating, by a joint resolution of Congress, a foreign independent State. In all other cases, however, new States have been formed from areas already belonging to the United States and or- ganized as Territories. There has been some little constitutional speculation as to whether the decisive, creative act in the bringing into existence of a new State is the Resolution of Congress approving the Constitution that has been drawn up and declaring the former Territory 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’ Rights School. It would seem to be sufficiently plain, however, that the former is the correct doctrine; for there can be no question that it les within the power of Congress arbitrarily to refuse its approval to a Constitution that has been framed by the people of a Territory strictly in accordance with the requirements of the Enabling Act. The final and, therefore, decisive step, has thus to be taken by the Fed- eral Government. Law oF THE UNITED States 119 This doctrine has, indeed, received implied judicial sanc- tion at the hands of the United States Supreme Court in the case of Scott v. Jones.? 25 How. 343; 12 L. ed. 181. Cf. Jameson, Constitutional Conven- tion, § 207. CHAPTER XVI THE POWER OF THE UNITED STATES TO ACQUIRE TERRITORY Sources of power In the chapters that have gone before the effort has been made to set forth the constitutional relations ex- isting between the Union and its commonwealth members. From the very beginning, however, the American con- stitutional system has included other political units than the States. These units are Territories, Dependencies, and a Federal District or Seat of National Government. To a consideration of the constitutional questions incident to the annexation and government by the National Gov- ernment 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 ter- ritories; (2) the modes or purposes for which they may be acquired; and (3) their constitutional status. First then as to the power to acquire. The constitutional power of the United States 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. 2. The power to declare and carry on war. 3. The power to make treaties. 4. The power, as a sovereign State, to acquire territory by discovery and occupation or by any other methods recognized as proper by international usage. With regard to deriving the power to annex from the 120 Law or THE UNITED States 121 power to admit new States, it is sufficient to observe that not only is resort to this source unnecessary, but, when appealed to, it would not seem to yield to the National Government as ample powers as are furnished it when the treaty and war powers are relied upon: and, furthermore, that considerable support is given to the position that, when the power is exercised, the consent of the other States should be obtained There can be no question that it was the general in- tention at the time the Constitution was adopted that all the territory 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. Also it is to be admit- ted that, beyond all reasonable doubt, those who framed and adopted the Federal Constitution did not anticipate, 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. Nor can it be said that a different view was held upon this point by practically anyone until compara- tively recent times. But, admitting this, the conclusion that the annexation of territory not intended for ultimate Statehood is an unconstitutional act does not follow. One must go further and show that had the particular case been suggested to those framers and adopters of the Con- ~ stitution, they would have so modified its language as to have excluded it.! In the second place, even were this principle of constitutional construction not sufficiently 1In Dartmouth College v. Woodward, 4 Wh. 518; 4 L. ed. 629, Marshall says: ‘‘The case being within the words of the rule, must be within its operation likewise, unless there be something within its literal construction so obviously absurd or mischievous, or re- pugnant to the general spirit of that instrument as to justify those who expound the Constitution in making it an exception.” 122 PRINCIPLES OF THE CONSTITUTIONAL broad to uphold the Federal power in question, there would be applicable two principles, each of which would prevent the Supreme Court from passing upon this point. The first of these principles is the one elsewhere mentioned that the question of de facto and de jure sovereignty is one regarding which the courts hold themselves bound by the determination of the executive and legislative branches of the 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 examina- tion, and that, therefore, in the case of annexation of territory, it would not be proper for the court to require whether or not ultimate Statehood is intended to be granted the lands and peoples obtained. Indeed, as we have seen, as regards the contiguous continental territories of the United States, it has been uniformly held that the grant to them of Statehood lies wholly within the dis- cretion 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 de- serving territory. The question whether or not territory not contiguous to the other territory of the United States may be annexed is one very similar to the one just discussed and may be answered in much the same manner.’ The right to annex based on the treaty and war powers 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 General Government to declare and carry on war and to enter into treaties. This has been 2 See Senate Rept. 681; 55th Cong., 2d Sess., pp. 47, 48. Law oF THE UNITED STATES 123 repeatedly declared, both in earlier cases and in the more recent so-called Insular Cases. In American Insurance Co. v. Canter,? Marshall says, without, apparently, deeming an argument necessary: “The Constitution confers absolutely upon the govern- ment of the Union the power of making war and of mak- ing treaties; consequently that government possesses the power of acquiring territory, either by conquest or treaty.” In Fleming v. Page,* Taney says: “‘The United States may extend its boundaries by conquest or treaty, and may de- mand 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,° 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® it is declared: ‘‘ Power to acquire ter- ritory either by conquest or treaty is vested by the Con- stitution in the United States.” It is to be observed that in none of these cases is there any argument to show just why, and in what manner, the acquiring of the foreign territory is a necessary or proper means by which war may be carried on, or treaties entered inte. 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 con- ducting of foreign relations. This leads to the consideration of the doctrine which, constitutionally speaking, appeals to the author as the soundest mode of sustaining the power of the United 31 Pet. 511; 7 L. ed. 242. 49 How. 603; 13 L. ed. 276. 5 11 Wall. 493; 20 L. ed. 176. 616 Wall. 414; 21 L. ed. 457. 124 PRINCIPLES OF THE CONSTITUTIONAL States to acquire territory, as well as the one which, in application, affords the freest scope for its exercise. Ac- - cording to this principle 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 prop- erly be construed to have, in the absence of express pro- hibitions, all the powers possessed generally by the sov- ereign 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 exer- cise of this jurisdiction the same power to annex foreign territory that is possessed by other sovereign States. The argument in support of this doctrine has already been given. In one instance at least the United States has acquired territory 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 with respect to all matters that fall within the field governed by international law. Reference is here had to the annexation in 1856 of the Guano Islands by a statute of Congress which declared that whenever any citizen of the United States should discover a deposit of guano on any island, rock or key not within the lawful jurisdiction of any other government, and should take possession thereof, such island, rock or key might, at the discretion of the President, be considered as appertaining to the United States.’ 7 See Jones v. United States, 137 U. 8. 202; 11 Sup. Ct. Rep. 80; 34 L, ed. 691. Law OF THE UNITED STATES 125 The modes in which territory may be acquired by the United States Having discussed 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 (8) by joint resolution of the two houses of Congress. The process of expanding 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 Louisi- ana Territory, Florida, Alaska, the Mexican 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. Annexation by joint resolution In two instances, that of Texas, in 1845, and Hawaii in 1898, the sovereignty of the United States has been ex- tended over new territory by means of a joint resolution of the two Houses of Congress. In the case of Texas an attempt had been made to annex the territory by treaty, but this effort, requiring a two-thirds favorable 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 legisla- ture, with, of course, the approval of the President. 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 126 PRINCIPLES OF CONSTITUTIONAL Law 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 Constitution the power to admit new States into the Union, and, therefore, its admission of Texas to fellowship with other American commonwealths 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 Con- gress. 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 this mode of annexation has never been disputed in the courts, because, as has been earlier pointed out, questions as to the territorial extent of the sovereignty of the United States are political in char- acter and, therefore, the decisions of the legislative and executive branches of government as to them are not judicially reviewable. CHAPTER XVII THE CONSTITUTIONAL SOURCES OF THE POWER OF CONGRESS TO GOVERN THE TERRITORIES 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. The Federal author- ity to govern has been derived from three sources: (1) The express power given to Congress “‘ to dispose 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.? Power to govern absolute Since the time when the necessity for the exercise of the power arose, there has been almost no question as to the 1 Sere v. Pitot, 6 Cr. 332; 3 L. ed. 240; American Insurance Co. »v. Canter, 1 Pet. 511, 7 L. ed. 242; Cross v. Harrison, 16 How. 164; 14 L. ed. 889; Scott v. Sandford, 19 How. 393; 15 L. ed. 691; United States v. Kagama, 118 U.S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228; Mormon Church v. United States, 136 U.S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478; DeLima v. Bidwell, 182 U. 8. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041. 127 128 PRINCIPLES OF THE CONSTITUTIONAL absolute power of Congress to determine the form of polit- ical and administrative control to be erected over the Ter- ritories, and to fix the extent to which their inhabitants shall be admitted to a participation in their own govern- ment. Both by legislative practice and by judicial sanc- tion, the principle has, from the first been asserted that upon this matter the judgment of Congress is absolute. This, however, has not been construed to carry with it the absolute control of the Federal legislature over the civil rights—the private rights of person and property of the inhabitants of the Territories. The extent of the power of Congress with respect to these will be discussed in the next chapter. The plenary character of the legislative power of Con- gress with respect to the government of Territories is perhaps best stated in National Bank v. County of Yank- ton.? .Chief Justice Waite, speaking for the court, says: “Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the terri- torial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the territorial governments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States.” Territorial governments are congressional governments The governments established in the Territories by Con- gress act as agencies of Congress, in the same sense that an administrative board acts as the agent of the lawmak- ing body that creates it. As such congressional agencies, *101 U.S. 129; 25 L. ed. 1046. See also, for similar comprehen- sive statements, Murphy v. Ramsey, 114 U. 8. 15; 5 Sup. Ct. Rep. 747; 29 L. ed. 47; and Mormon Church v. United States, 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478. Law OF THE UNITED STATES 129 the territorial governments are, therefore, not considered as parts of the General Government established or directly provided for by the Constitution. Thus, speaking with reference to the courts established in the Territories, Marshall in an early case declared: “These . . . are not constitutional courts in which the judicial power con- ferred 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 needful rules and regulations respecting the territory be- longing to the United States.” ® And again in Benner v. Porter * the court say, with refer- ence to territorial governments: “They are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers on the organization and gov- ernment of the territories, combining the power 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 re- spect to State and Federal jurisdiction. They are not organized under the Constitution, nor subject to its com- plex distribution of the powers of government, as the or- ganic law; but are the creations, exclusively, of the legis- lative department, and subject to its supervision and control. Whether or not there are provisions in that in- strument which extend to and act upon these territorial governments, it is not now material to examine.” 3 American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242. 49 How. 235; 13 L. ed. 119. See also In re Cooper, 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232; and United States v. Coe, 155 U.S. 76; 15 Sup. Ct. Rep. 16; 39 L. ed. 76, to the effect that ad- miralty jurisdiction may be exercised by these courts, and also that the Supreme Court may entertain appeals from them. 9 CHAPTER XVIII THE DISTRICT OF COLUMBIA 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 Territories. Clause 17 of § 8 of Article I of the Con- stitution empowers Congress ‘‘to exercise exclusive legisla- tion in all cases whatsoever over such district (not ex- ceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States.” 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 be- tween citizens of different States, it is declared in DeGeofroy v. Riggs,! to be a State within the meaning of a treaty granting certain rights to aliens within the ‘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 questioned. But with reference to the form of government to be given the District, the authority of Congress is as absolute as we 1133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. See also Loughborough v. Blake, 5 Wh. 317; 5 L. ed. 98, and Hepburn v. Ellzey, 2 Cr. 445; 2 L. ed. 332, in the last of which cases it was held that the district is not a State of the Union within the meaning of that provision of the judicial article of the Constitution which gives to the Federal courts jurisdiction in suits between citizens of different States. ' 130 Law or THE UNITED STATES 131 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 National 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 legisla- ture of a State may exercise within a State.’”? The Constitution provides that Congress shall ‘exer- cise exclusive legislation in all cases whatsoever ”’ over such district as shall, by cession of particular States, become the seat of Government. 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 territory constituting the District might be ceded. Congress has, however, since the beginning, acted upon the assumption that by this provision it is intended that while ordinary municipal powers may be delegated to the local governing body in the District, it may not delegate to such body the general legislative powers possessed by a State of the Union; that, in other words, the legislative authority over the District being vested by the Constitution ‘ exclusively ”’ in Con- gress, it may not by delegation be exercised by any other body. Thus, dividing the governing powers in the United States into national, State and local, it has been held neces- sary that, as regards the District, the first two must be exercised by Congress itself.’ 2 Capital Traction Co. v. Hof, 174 U.S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed. 873. 3 It cannot be said that the Supreme Court has passed squarely upon this point, but by various dicta the doctrine stated in the text has been declared. See, e. g., Stoutenburgh v. Hennick, 129 U.S. 141; 9 Sup. Ct. Rep. 256; 32 L. ed. 637; Cohens v. Virginia, 6 Wh. 264; 5 L. ed. 257. Also Roach v. Riswick, McArthur & Mackay, 171. 132 PRINCIPLES OF THE CONSTITUTIONAL When legislating for the District, and the same is true of the Territories, Congress acts not only as a local legislature in the sense that a State legislature acts as the local legis- lature 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 areas, the District, or the Territories, especially referred to, are yet national acts in that, so far as it is necessary for their enforcement, 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. Places purchased The same clause of the Constitution which grants to Congress exclusive jurisdiction over the district to be se- lected for the seat of the National Government, author- izes Congress “‘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, mag- azines, 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 ac- quired with the consent of the States in which they are situated. The language of the clause would seem to indicate that the framers of the Constitution intended that the General Government could or should acquire land within the States only by purchase, and with the consent of the States. In practice, however, this consent has not always been ob- tained, or been deemed necessary. But, in such cases, 46 Wh. 264; 5 L. ed. 257, Law oF THE UNITED STATES 133 the political jurisdiction of the State is not ousted, unless the lands are used for the purposes of government.* 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 exercise of any of its expressly given powers. When thus obtained, the lands, like those ac- quired by direct purchase and without the consent of the States, remain 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 tax- ation by the States.® 5 Ft. Leavenworth R. R. Co. v. Lowe, 114 U. 8S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264. 6 Kohl v. United States, 91 U. S. 367; 23 L. ed. 449; St. Louis v. W. U. Telegraph Co., 148 U. S. 92; 13 Sup. Ct. Rep. 485; 37 L. ed. 380; Van Brocklin v. Tennessee, 117 U. 8. 151; 6 Sup. Ct. Rep. 670; 29 L. ed. 845. CHAPTER XIX MILITARY AND PRESIDENTIAL GOVERNMENT OF ACQUIRED TERRITORY 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 terri- tory 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 govern- ment, and the lives and property of its inhabitants are in the hands of the victorious power. The inhabitants 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.! 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 differ- ent sense from an insurrectionary 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 by the de jure government. This is adverted to by the Supreme Court in Thorington ». 1 United States v. Rice, 4 Wh. 246; 4 L. ed. 562; Fleming v. Page, 9 How. 603; 13 L. ed. 276; Neely v. Henkel, 180 U.S. 109; 21 Sup. Ct. Rep. 302; 45 L. ed. 448; DeLima v. Bidwell, 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041; Dooley v. United States, 182 U. 8. 222: 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. 134 Law or THE UNITED STATES 135 Smith ? in passing upon the status of the Confederate Government established during the Civil War. In New Orleans v. New York Mail Steamship Co.* was considered the status of territory of the Southern Con- federacy 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 ter- ritory conquered from a foreign State. Presidential government The government maintained by the President over a conquered territory, being belligerent, is, according to the general doctrines of international law regarding military occupation, absolute in character: “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.’”* It has been seen from the preceding cases that the power of the President, as Commander-in-Chief of the army and navy, is practically absolute over conquered territory. And also, as was held in Cross v. Harrison, that this power persists after the formal annexation of the territory in question to the United States and until Congress legislates for its government. It would appear, however, that dur- ing this latter period, the President’s power is not as ab- solute as in the period prior to annexation. Absolute power, according to American constitutional doctrines, is only justified by military necessity, and, therefore, with the cessation of hostilities and the annexation of the terri- tory by which it is brought within the general province of the American doctrine, there spring up certain limita- 28 Wall. 1; 19 L. ed. 361. 3 20 Wall. 387; 22 L. ed. 354. 4N. Orleans v. N. Y. Mail 8. S. Co., 20 Wall. 387; 22 L. ed. 354 136 PRINCIPLES OF CoNnsTITUTIONAL Law tions upon the President’s governing power.® The extent of these limitations will be discussed in a later chapter deal- ing with martial and military law, and with the doctrines laid down by the Supreme Court in the ‘Insular Cases” determining the political status and the civil rights of the inhabitants of the islands acquired in 1898 from Spain. 5 Dooley v. United States, 182 U. 8. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. CHAPTER XX ‘ ANNEXATION OF TERRITORY BY TREATY Status of territory annexed by treaty That, under the treaty-making power provided in the Constitution, a foreign country may be brought under the ~ sovereignty of the United States, and thus, from the point of view of international law, become a part of it, is, as we have seen, beyond question. In De Lima v. Bidwell,! one of the “Insular Cases,’”’ decided in 1901, the point was urged, however, that, before such annexed territory can become ‘‘domestic’’ territory and as such be brought, ipso facto, under the operation of the Federal laws generally, an act of Congress to that effect is necessary. Prior to the De Lima case, this question had been sev- eral 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 dis- cussed, nor had administrative practice and the laws been harmonious with judicial pronouncements, nor these ju- dicial pronouncements harmonious with one another. In Fleming v. Page,” decided in 1850, it was held, as has been seen, that conquest and military occupation of a foreign district do not, ipso facto, make that district a part of the United States, and, therefore, that duties may properly be levied upon goods imported therefrom into the United States under an act of Congress imposing duties 1182 U.S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041. 29 How. 603; 13 L. ed. 276. 137 138 PRINCIPLES OF THE CONSTITUTIONAL upon imports from foreign countries. Taney, however, in his opinion went further than the facts of the case neces- sitated, and adverted to the circumstance that the ad-’ ministrative department of the government had, as a rule, continued to treat territory acquired by treaty as foreign until Congress by legislation had extended over it its rev- enue laws. In Cross v. Harrison,* however, decided in 1853, it was held by a unanimous court, including Chief Justice Taney himself, that by the ratification of the treaty of 1848 be- tween 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. : In De Lima v. Bidwell,* with reference to the Island of Porto Rico, the court held itself governed by the doctrine declared in Cross v. Harrison, Applying the doctrine of De Lima v. Bidwell, the Su- preme Court, in another of the Insular Cases, Dooley ». United States,° held that though, after the treaty of peace providing for the annexation of Porto Rico, the military government might continue until Congress should pro- vide the island with a civil government (according to the doctrine of Cross v. Harrison), the island was no longer “foreign territory,” and, therefore, under the then existing revenue laws of the United States, providing for the levy- ing of customs duties on goods imported from foreign countries, that duties might not be levied on importations into the United States from Porto Rico, nor from the United States into that island. 316 How. 164; 14 L. ed. 889. 4182 U.S. 1; 21 Sup. Ct. Rep. 748; 45 L. ed. 1041. 5182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. See also Jecker v. Montgomery, 13 How. 498; 14 L. ed. 240; Raymond ». Thomas, 91 U. 8. 712; 23 L. ed. 434, Law or THE UNITED StTaTEs 139 In the case of The Diamond Rings, 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. Presidential powers The absolute power of Congress to determine the political or governmental rights in annexed territories constitution- ally attaches from the moment that they become subject to the sovereignty of the United States. Until Congress exercises this right, however, and provides them with gov- ernments and laws, they remain under the control of the Federal executive. This duty devolves upon the Presi- dent as a result of his general obligation 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 government 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. On March 2, 1901, Congress enacted that “All military, civil and judicial powers necessary to govern the Philippine Islands . . . shall, until otherwise provided by Congress, 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 establishment of civil government and for the maintaining and protecting of the inhabitants of said islands in the free enjoyment of their liberty, property and 6 183 U. S. 176; 22 Sup. Ct. Rep. 59; 46 L. ed. 138. 140 PRINCIPLES OF CONSTITUTIONAL LAW 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 pur- poses,’’ Congress not only approved and ratified the pre- vious acts of the Philippine Commission, but went on to define the general line of action which 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 not an- nexed to itself but in the possession of its military forces is derived both from the power given Congress 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 ex- press prohibitions, to exercise all the powers possessed by sovereign States generally. From the same source was derived the power of the United States to administer Cuba, and to establish con- sular courts in oriental countries. CHAPTER XXI THE DISTINCTION BETWEEN INCORPORATED AND UNINCOR- PORATED TERRITORIES Limitations upon Congress The Constitution of the United States contains a num- ber of express limitations upon the Federal legislative power. In addition 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 trials, to juries in civil suits, to immunity from excessive bails 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 cer- tain 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 population, no duty laid upon goods exported from a State, no commercial prefer- ences 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, ete. The Thirteenth Amendment also declares that ‘neither slavery or involuntary servitude, except as pun- ishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 141 142 PRINCIPLES OF THE CONSTITUTIONAL 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 legis- lating for the Territories and their populations has now to be examined. In the preceding chapters we have learned the source whence is derived the power of Congress and of the Presi- dent to govern annexed territories. We have learned that by mere military occupation a territory, though for the time being subject to the de facto control of the Presi- dent as Commander-in-Chief of the army and navy, is not annexed to the United States, that is, it does not be- come 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. When thus annexed, however, a district may, according to the recent ‘Insular Cases,” find itself, or by subsequent legislative action be placed, in any one of the following categories: 1. A State of the Union. 2. A “Territory” incorporated into the Union. This Territory may be either “unorganized” or “organized.” 3. A Territory appurtenant to, that is, subject to the sovereignty of the United States, but not ‘ incorporated,” constitutionally speaking, into the Union of States and Territories for the benefit and protection of whose in- habitants the Constitution was adopted. Such “appurtenant,” dependent or unincorporated ter- ritory is, of course, from the international point of view a part of the United States, but is not, as we shall see, a part thereof in the stricter constitutional sense in which the term is used in the Constitution with reference to certain limitations which that instrument lays upon the legislative powers of Congress. Law or tHE UNITED SratTeEs 143 Distinction between incorporated and unincorporated Terri- tories With respect to the form of government that may be established and maintained by Congress over the Terri- tories, there is no distinction between an incorporated and an unincorporated Territory. In either case the congres- sional authority is absolute as to whether local self- governing powers will be granted to their inhabitants. With respect, however, to the civil or private rights of the inhabitants of the Territories, the distinction is very im- portant. For if it be that a Territory is merely appurte- nant to, but not “incorporated ” into the United States, Congress in its legislation regarding it is bound by but few of the limitations which apply in the case of incorpo- rated Territories, whether organized or unorganized. This distinction between incorporated and unincorpo- rated territory is one that was not clearly made until the decision of the Insular Cases in 1901. Furthermore in- deed, it can hardly be said to have been’ known 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 United States. There were, however, on the other hand, not a few legislative and administrative pre- cedents which supported such a doctrine; and by rigor- ously 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 subject to the sover- eignty of the United States; and that as to such areas not within the limits of the ‘United States,” in this strict constitutional sense, Congress, in the exercise of its legis- lative powers, is not subject to the limitations which rest 144 PRINCIPLES OF THE CONSTITUTIONAL upon it when dealing with Territories which are included in the United States.? The Insular Cases As a result of the Spanish-American War the United States came into possession of territories over which, be- cause 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 governed, but to the civil rights that should be granted their inhabitants. The ques- tion whether, in dealing with these new insular possessions, Congress should be held subject to all those constitutional 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 deter- mination was as to the constitutionality of that clause of the Foraker Act establishing civil ‘congressional’ govern- ment in Porto Rico, which provided a scale of customs duties to be paid upon goods brought into the ports of the L 1 Chief among the cases, prior to 1901, dealing with the status of Territories, and the civil rights of their inhabitants are the following: Loughborough v. Blake, 5 Wh. 317; 5 L. ed. 98; American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; Webster v. Reid; 11 How. 437; 13 L. ed. 761; Scott v. Sandford, 19 How. 393; 15 L. ed. 691; Reynolds v. U.8., 98 U.S. 145; 25 L. ed. 244; National Bank v. Yankton, 101 U.S. 129; 25 L. ed. 1046; Murphy v. Ramsey, 114 U.S. 15; 5 Sup. Ct. Rep. 747; 29 L. ed. 47; Callan v. Wilson, 127 U. 8. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223; Mormon Church v. U. 8., 136 U.S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478; American Publishing Co. »v. Fisher, 166 U. 8S. 464; 17 Sup. Ct. Rep. 618; 41 L. ed. 1079; Spring- ville v. Thomas, 166 U.S. 707; 17 Sup. Ct. Rep. 717; 41 L. ed. 1172; Thompson v. Utah, 170 U. 8. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 1061. Law or THE Unitep States 145 United States from the island. This necessarily involved an answer to the question whether the provision of the Constitution that “all duties, imposts and excises shall be uniform throughout the United States ” applied ex proprio vigore to Porto Rico, or whether, having never been form- ally “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? 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 from the point of view 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 con- clusion: First, by making a sharp distinction between “incorporated” and “unincorporated” Territories; Sec- ond, by holding that the treaty-making power though able to annex Territories to the United States, that is, bring them under its sovereignty internationally 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 legis- lating 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 as far as the general limitations upon the legislative powers of Congress are concerned, these four justices place the States and the incorporated Territories in the same class. Only the unincorporated 2182 U.S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. 10 146 PRINCIPLES OF THE CONSTITUTIONAL 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, did not, as we shall see, make any distinction between incorporated and unincorporated Territories, but excluded them all from the term “United States,” and from the protection of all but the most fundamental of the constitutional lim- itations upon the powers of Congress. The constitutional rights which these limitations create, he asserted, do not belong to the citizens of any Territories until by an 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 recognized only two categories, States and Territories. It will have been seen that the net result of the decision in Downes v. Bidwell, 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 incorporated into the United States (or, according to Justice Brown, over which the Constitution has not been extended by an act of Congress) Congress is not limited by some of the restrictions enumerated or im- plied 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 through- out the United States” does not apply. Hawaii In Hawaii v. Mankichi ° it was held that the provisions 2190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016. Law or THE Unirep SratEs 147 of the Fifth and Sixth Amendments with reference to in- dictment by a 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 Resolution 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 inconsistent with this Joint Resolution, nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States 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 July 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 applica- tion for a writ of habeas corpus having been made by Mankichi upon the ground that, according to the Constitu- tion of the United States, no one might be tried for man- slaughter except upon an indictment or presentment found by a grand jury, and the case having been appealed to the Supreme Court of: the United States, that tribunal was called upon to determine: first, whether it was the intention and the necessary effect of the annexing Joint Resolution to make these constitutional provisions immediately ap- plicable to 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 question. The court answered the first question in the negative, and the second in the affirmative. 148 PRINCIPLES OF THE CONSTITUTIONAL Alaska In Rassmussen v. United States,* 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 certain sentences from the opinion in Dorr v. United States,” and holding that the treaty by which Alaska had been ac- quired, and the legislation of Congress subsequent thereto, did not bring that Territory within the category of un- incorporated Territories according to the test implied in the sentences quoted. This Rassmussen case is, however, significant, in that it exhibits the definite adherence of the court to the doctrine of the distinction between incorpo- rated and unincorporated Territories. 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 clearly unsound. In- corporation and not organization, it was declared, is the test as to the general applicability of the Constitution. Justice Brown concurred, but, as might have been expected from his position in Downes v. Bidwell, held that the gen- eral 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 in- tended that the particular provision of the Constitution should apply. That the Thirteenth Amendment forbidding slavery and involuntary servitude except as punishment for crime 4197 U.S. 516; 25 Sup. Ct. Rep. 514; 49 L. ed. 862. 5 195 U.S. 138; 24 Sup. Ct. Rep. 808; 49 L. ed. 128. Law oF THE UNITED STATES 149 applies in the unincorporated as well as 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 possible, the custom or practice will be sup- pressed, if, indeed, it has not already been suppressed.® 6 For other recent adjudications with reference to the Territories, see Binns v. United States, 194 U. S. 486; 24 Sup. Ct. Rep. 816; 48 L. ed. 1087; Kepner v. United States, 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114; Goetze v. United States, 182 U. S. 221; 21 Sup. Ct. Rep. 742; 45 L. ed. 1065; Dooley v. United States, 183 U. 8. 151; 22 Sup. Ct. Rep. 62; 43 L. ed. 128; Warner, Barnes & Co. v. United States, 197 U. S. 419; 25 Sup. Ct. Rep. 455; 49 L. ed. 816. CHAPTER XXII CITIZENSHIP IN THE TERRITORIES Effect of cession Whether or not inhabitants of territories ceded by one nation to another necessarily have, according to the princi- ples of international 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. That, in the absence of treaty stipu- lation to the contrary, the citizenship of the inhabitants of ceded territory is to be that of the annexing state, is, however, generally admitted by American international law writers, and has been more than once declared by the United States Supreme Court.! Treaty provisions In all the treaties entered into by the United States whereby territory was acquired, prior to that with Spain in 1898, it was provided either that the inhabitants of the ceded territories remaining therein should be admitted as soon as possible to the enjoyment of all the rights, ad- vantages and immunities of citizens 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 terri- 1 American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; Boyd v. Nebraska, 148 U.S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103. 150 Law or THE UNITED SraTEs 151 tories 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 to discriminate civilly against these people, and, when the conditions should warrant, to con- fer upon them full political privileges. The determination when this time had arrived was left to the discretion of Congress. Provisions similar to those of which we have been speaking are almost always inserted by-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, a State should, as far as possible, obtain a guarantee that they should not be civilly or politically oppressed. By 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, because those treaties contained no stipu- lations to the contrary. In the treaty of peace with Spain which provided for the cession to the United States of Porto Rico, Guam and the Philippines, we find for the first time appearing a pro- vision expressly asserting, that the cession of the islands is not to operate as a naturalization of their native in- habitants, but that the determination of their civil rights, and political status, is to be left to the subsequent judg- ment of Congress. Spanish subjects, natives of the Ibe- rian Peninsula, but resident in the islands, are, however, given the right to elect whether or not they will retain their old citizenship or become American subjects. In the Insular Cases it was held that the islands ob- tained from Spain have not been incorporated in the “United States.” Their inhabitants have not been natu- ralized by statute, and the treaty with Spain expressly 152 PRINCIPLES OF THE CONSTITUTIONAL refuses 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 include or exclude “‘ unincorporated ” Territories. As has been said, this question has not been passed upon precisely, 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 allegiance to, the United States, are not citi- zens 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. 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, 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. By the act of Congress of July, 1902, providing for the administration of civil government in the Philippine Is- lands all inhabitants thereof, continuing to reside there who were Spanish subjects at the time of the cession of the islands to the United States, and their children born sub- sequent thereto, and who have not elected to preserve their Spanish allegiance, are described as ‘‘citizens of the Philippine Islands.” So similarly, in the act of April 12, Law oF tHE Unrrep Stats 153 1900, establishing a civil government in Porto Rico, the phrase “citizens of Porto Rico” is employed, and the designation “citizens of the United States” avoided. And in the naturalization act of June 29, 1906, provision is made (§ 30) for the naturalization, under certain circum- stances, of “ persons not citizens who owe permanent alle- giance to the United States.” In Gonzales v. Williams” 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 immi- grants likely to become public charges. No position is taken by the court, however, with reference to the question of citizenship. 192 U.S. 1; 24 Sup. Ct. Rep. 171; 48 L. ed. 317. CHAPTER XXIII FOREIGN RELATIONS: THE TREATY POWER Federal powers exclusive The exclusiveness of the Federal jurisdiction in all that concerns foreign affairs is deducible both from the national character of the General Government, and from the ex- press provisions of the Constitution. The States are expressly forbidden to “ enter into any treaty, alliance or confederation,” “to grant letters of marque and reprisal,’’ 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 imminent danger as will admit of no delay.” Upon the other hand, the General Government is ex- pressly empowered “to provide for the common defense and general welfare of the United States;” ‘to regulate commerce with foreign nations;’’ ‘to make treaties;”’ ‘‘ to establish an uniform rule of naturalization;” ‘‘ to define and punish piracies and felonies committed 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 makes rules for the government and regulation of the land and naval forces;” “to provide for the calling forth the militia to . . . repel invasions;” “to appoint ambassa~- dors and other public ministers and consuls;”’ to adjudicate causes arising under treaties, and all cases affecting am- 154 Law oF THE UNITED STATES 155 bassadors, other public ministers and consuls, cases of admiralty and maritime jurisdiction, and cases between a State, or the citizens thereof, and foreign States, citizens -and subjects. Finally, it is declared that: “This Consti- tution, and the laws of the United States that shall be made in pursuance thereof; and all the 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 the laws of any State to the contrary not- withstanding.” From these express grants of power to the General Gov- ernment, 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. Federal powers 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 Constitution specifically grants it, but all those powers which sovereign States in general pos- sess 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 appears as the sole representative of the American people; that upon it rests, therefore, the obli- gation to perform all the duties which international law imposes upon a sovereign State; and that, therefore, hav- ing those duties to perform it is to be presumed to have commensurate powers.! 1The comprehensive character of the powers of the National Government with reference to foreign affairs has been especially 156 PRINCIPLES OF THE CONSTITUTIONAL The reasoning of the court in maintenance of the princi- ple that in all that concerns foreign relations the United States has the same plenitude of constitutional power as that possessed by other sovereign States is sound. An 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, there- fore, the matter is purely one relating to the reserved pow- ers of the States or to the private rights of the individuals. To permit the doctrine to apply within these fields would at once render the Federal Government one of unlimited powers. The manner of exercise of the treaty-making power The Constitution 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 Sen- ators present concur.” With respect to the manner in which treaty-making is, according to the Constitution, to be conducted, the first question that arises is as to the extent to which the Senate may properly participate not only in the ratification, but in the preliminary negotiation of international agree- ments. In the same clause, indeed in the same sentence, of the asserted in a line of cases dealing with the exclusion from the United States of undesirable aliens and especially of the Chinese. See Chinese Exclusion Cases, 130 U. 8. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068; Ekiu v. United States, 142 U. 8. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146; Fong Yue Ting v. United States, 149 U. 8. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905. See, also, United States v. Jones, 109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 1015, as to the con- stitutional authority of Congress to provide for the occupation and annexation of the Guano Islands. Law or THE UnitTep StTatEs 157 Constitution in which provision is made for entering into treaties, it is provided that the President “shall nominate and by and with the advice of the Senate shall appoint ambassadors, other public ministers and consuls,” ete. 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 are to be appointed by the Senate and President. The negotiating of treaties is not, however, by the phraseology of the treaty clause thus sharply dis- tinguished from their ratification as regards the Federal organs by which this negotiation and ratification are to be performed. The language is that the President ‘shall have power, by and with the advice and consent 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 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 it was thought at that time would remain comparatively small. Negotiation of treaties Actual practice exhibits frequent instances in which the Senate has participated in the negotiation of treaties, particularly during the first years under the Constitution when the relations between the President and the Senate were especially close. After the first years under the Con- stitution, 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.” 2See article in Scribner’s Magazine, Jan., 1902, by Sen. Lodge, entitled ‘“‘The Treaty-Making Power.” 158 PRINCIPLES OF THE CONSTITUTIONAL In a number of cases the Senate has by resolution sug- gested to the President that certain negotiations be initi- ated. Thus in 1835 the Senate requested the President to open negotiations with the Central American govern- ments with a view to securing treaties granting protection to such individuals as might undertake the construction cf an interoceanic canal. In 1888 President Cleveland 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 con- current resolution, the Senate and House of Representa- tives requested the Executive to seek the co-operation of other powers in providing for the amicable settlement by arbitration of disputes which could not be settled through the ordinary diplomatic channels. By an act of Congress, the President was, in 1902, advised and authorized to enter into certain treaty arrangements with reference to the construction of an interoceanic canal. All of the instances cited above, are, however, by way of general exception to the rule that the negotiation 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 with- out amendments, of the treaties after they have been agreed upon by the President and the chancellaries 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, that body is, as a matter of fact, ac- cording 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 Senators, especially, of course, those serving upon the Committee on Foreign Affairs. In 1898 three of the five Commissioners ap- Law oF THE UNITED STATES 159 pointed to negotiate the Treaty of Peace with Spain were Senators and members of this Committee. The recognition by the United States of a status of belligerency, and the recognition of the sovereignty and in- dependence of a foreign government are political acts, not subject to judicial review, and are performed by the Presi- dent. At times the claim has been made that this power of recognition is one to be exercised at the dictation of Congress, but precedents are against the claim. Itis to be presumed, however, that when the recognition of a status of belligerency or of the independence of a revolutionary government is likely to constitute 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. The power of the Senate to amend treaties There would seem to be no question that, having the power either to approve or 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. Upon the other hand, it is equally within the province of the Executive to consider the amendment of a treaty by the Senate as a rejection of it. When, therefore, a treaty has been amended in the Senate, it is within the President’s power to abandon the whole treaty project, or to reopen nego- tiations with the foreign country or countries concerned with a view to obtaining their consent to the changes de- sired by the Senate, or, finally, to begin de novo and at- 160 PRINCIPLES OF THE CONSTITUTIONAL tempt 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 project made in the Senate, and is successful in this, it would seem that the treaty need not be again submitted to that body for its approval, but may be at once promulgated.* The approval of the Senate being essential to all treaties entered into by the United States, it has been held that all protocols, and explanations given by the Executive as to the meaning of treaty provisions, which have not been passed upon and approved by the Senate, are not to be con- sidered as internationally binding upon the United States, or enforced in its courts. For this reason it is not consti- tutional for the President to insert in a treaty secret pro- visions which have not been approved by the Senate. Most of the written Constitutions of foreign powers have specific prohibitions with reference to secret provisions. After a treaty has been signed by the commissioners - appointed to negotiate it, or agreed upon by the de- partments 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 1884 by Presi- dent Arthur. Ina like manner the Hawaiian Annexation treaty of 1893, and the Nicaraguan Canal Convention of 1884 were withdrawn for “re-examination” after having been sent to the Senate. 3See Crandall, Treaties: Their Making and Enforcement, pp. 68 et seg. In Haver v. Yaker, 9 Wall. 32; 19 L. ed. 571, the court recognizes the right of the Senate to amend projects of treaties. Law oF THE UNITED StaTES 161 Even after being favorably acted upon by the Senate, it would appear that, under certain circumstances, the President may refuse to ratify a treaty. 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. International agreements not requiring submission to the Senate 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 Constitu- tion. 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 conferred upon the President the power to contract with foreign powers with reference to specified matters.* International correspondence is exclusively in the hands of the President, or his agent, the Secretary of State. Hence it is improper 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 later 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 4See pamphlet, reprinted from the Yale Review by J. F. Barnett, entitled “International Agreements Without the Advice and Consent of the Senate;” article by J. B. Moore in the Political Science Quar- terly, Sept., 1905, entitled “Treaties and Executive Agreements”; and article by C. C. Hyde in Greenbag, April, 1905, entitled ‘‘ Agree- ments of the United States other than Treaties.” il 162 PRINCIPLES OF THE CONSTITUTIONAL Federal Government, by resolution or otherwise, to at- tempt to communicate with a foreign power except through the President. Thus, when in 1877 Congress passed two joint resolutions congratulating the Argentine Republic and the Republic of Pretoria upon their having established a republican form of government, and directing, in the one case, the Secretary of State to acknowledge the receipt of a dispatch from Argentine, and in the other to com- municate with Pretoria, the President vetoed both resolu- tions. ‘ By virtue of the power exclusively vested in him to conduct diplomatic negotiations between this and a for- eign country, the President has, since early years, entered into numerous agreements with foreign chancellaries for the settlement of claims made by private American citi- zens against foreign governments. In a considerable -number of cases these claims have been settled by means of arbitrations agreed upon between the foreign offices concurred. In no case has the President attempted, without con- sulting the Senate, to adjust finally claims brought by foreigners against the United States. In no case, also, has the President, by executive action, attempted the settlement of claims set up by the United States in its own behalf. The constitutional authority of the President, without consulting the Senate, to enter into protocols of agreement as the basis for treaties to be negotiated, is beyond ques- tion, and has repeatedly been exercised without demur from the Senate. As the term indicates, a modus vivendi is a temporary arrangement entered into for the purpose of regulating a matter of conflicting interests, until a more definite and permanent arrangement can be obtained in treaty form. Continued and unquestioned practice supports the doc- Law oF THE Unirep States 163 trine that these modi vivendi may be entered into by the President without consulting the Senate.® 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 interna- tional character. These conventions do not require the approval of the Senate. A conspicuous example of inter- national agreements thus entered into is the protocol signed at Pekin in 1901. 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 1817, 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 the purpose of friendly visits, of furnishing protection 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.® Extraditions The greatly preponderant weight of opinion is that, in 5 For instances, see Butler, The Treaty-Making Power, I, 369, note. 6 By general treaties as well as by statutes the President is often given authority to enter into specific international agreements which do not need to be submitted to the Senate for its approval before they become effective. The constitutionality of this dele- gation of authority is considered in Field v. Clark, 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294. 164 PRINCIPLES OF CONSTITUTIONAL LAW 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. The single instance in which the President has extradited without such authority expressly conferred upon him is the surrender to Spain by Lincoln 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 constitu- tional objection to such legislation. : CHAPTER XXIV CONGRESSIONAL LEGISLATION FOR THE ENFORCEMENT OF TREATIES Auxiliary legislation often necessary Though all treaties, as declared by the Constitution, are parts of the supreme law of the land, they are not al- ways, in whole or in part, self-executing, but require for their enforcement ancillary legislative action. Especially is this legislative assistance required when an expen- diture of money is called for. The treaty-making power is able to obligate the United States internationally to the payment of sums of money, but is not able it- self to appropriate from the United States treasury the amounts called for, or to compel the legislature to provide for their payment. The same is true as to other legis- lation which may be required in order to put a treaty into full force and effect. The moral and political obligation upon Congress to supply this legislation or to make the necessary appropriations is, however, exceedingly strong. As parts of the supreme law of the land, treaties 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 in- consistent with it.! 1 Edye v. Robertson (Head Money Cases), 112 U.S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798; Chae Chan Ping v. United States, 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068. See also cases cited by Butler, Treaty-Making Power, I, 86. 165 166 PRINCIPLES OF THE CONSTITUTIONAL Effect of treaties on existing statutes We 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 interna- tional agreements, to alter arrangements which Congress has by statute already established. That the treaty-making power extends to many sub- jects within the ordinary legislative powers of Congress there can be no doubt. 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 inconsistent treaty.” In fact, however, there have been few instances in which a treaty inconsistent with a prior act of Congress has been given full force 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 ex- ample, 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. Furthermore, with specific reference to com- mercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, Congress in every instance has succeeded in maintaining this point. There would seem to be, however, in practice, one 2 Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415; Cherokee Tobacco Case, 11 Wall. 616; 20 L. ed. 227. See also United States v. Lee Yen Tai, 185 U. 8. 213; 22 Sup. Ct. Rep. 629; 46 L. ed. 878, and cases there cited. Law oF THE UNITED STaTES 167 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 originate in the House of Representatives.” Strictly interpreted this pro- vision 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.’ After an account of the practice of the government and of discussions of the subject in Congress, Mr. Crandall, writing in 1904, says: ‘From this historical review it ap- pears that, whatever may be the ipso facto effect of the treaty stipulations, entered into by the President and Sen- ate, 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 in- serted in the treaty by which its operation is expressly made dependent upon the action of Congress; and that in the recent Cuban treaty such a clause was inserted on the initiative of the Senate.’’* 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 laws matters which are within the legislative powers of Congress. Thus in 1902, 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 laws in our courts.° It is to be remarked, however, that in Bertram v. Robert- 3 See Moore’s Digest of International Law, V, 223; and report of Senate Committee on Foreign Affairs, Compilation of Reports of the Committee on Foreign Relations, VIII, 36. 4 Treaties: Their Making and Enforcement, 145. 5 Butler, Treaty-Making Power, I, 457. 168 PRINCIPLES OF CONSTITUTIONAL Law son,® and Whitney v. Robertson,’ though the point is not expressly discussed, it would seem that the court impliedly held that a treaty might modify revenue laws, for in these cases the effect of treaties upon existing tariff laws is con- sidered without a suggestion that the inquiry is an un- necessary one because of the inability of the treaty- making power to modify such statutes. 6 122 U. 8. 116; 7 Sup. Ct. Rep. 1115; 30 L. ed. 1118. 7124 U.S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 386. CHAPTER XXV THE CONSTITUTIONAL EXTENT OF THE TREATY-MAKING POWER Treaty-making power not expressly limited The treaty-making power is granted in the Constitution without 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 not- withstanding.” If, then, there are any limitations upon its extent, they must be found inherent to the nature of treaties themselves, or implied in other clauses of the Con- stitution, or in the very nature of the polity which that instrument is designed to create and maintain. No 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 necessity 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 oc- casions, stated, not only in general terms, but with refer- ence to specific matters, that there are limits to the sub- jects that may, by treaty, be made the supreme law of the land.! And in Downes v. Bidwell? four of the majority 1 New Orleans v. United States, 10 Pet. 662; 9 L. ed. 573; Pollard’s Lessee v. Hagan, 3 How. 212; 11 L. ed. 565; Cherokee Tobacco Case, 11 Wall. 616; 20 L. ed. 227; DeGeofroy v. Riggs, 133 U.S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642, and cases there cited. 2182 U.S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. For addi- 169 170 PRINCIPLES OF THE CONSTITUTIONAL justices declare in their opinion that the treaty-making power is incompetent to incorporate annexed territory into the United States. And the minority justices assert that ‘a treaty which undertook to take away what the Constitution secured, or to enlarge the Federal juris- diction, would be simply void.”’ These dicta of the Supreme Court are really obiter 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 overstepped, the courts will interpose their veto. 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 estab- lished that a Federal statute, enacted within either the concurrent or exclusive constitutional competency of Con- gress, operates to nullify all inconsistent State legislation. In this respect, as the Constitution expressly declares, treaties and acts of Congress are upon precisely the same footing.’ tional declarations by the Supreme Court that treaties are neces- sarily subordinate to the provisions of 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. 8. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740. In United States v. Wong Kim Ark, 169 U.S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890, the minority point out that the effect of the decision of the majority is to limit the treaty-making power with reference to the prevention of children of resident aliens, born within the United States, from becoming citizens of the United States. 3 Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; Fairfax v. Hunter, 7 Cr. Law or THE UNITED STATES 171 It may, then, be considered as established that a treaty entered 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 matters within the States which it may not control by an act of Congress, and if, in this respect, the treaty-making power is broader than the legis- lative, in what respects, and to what extents, it is broader. Upon 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 re- served by the Constitution from the control of the other departments of the Federal Government may not be in- fringed by its treaty-making power.* Opposing, however, the dicta of these cases there is 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 ordinary legislative competency of the States, have been held void because of conflict with sub- sisting Federal treaties.° Thus, in the case of De Geofroy v. Riggs,® it is declared: 603; 3 L. ed. 453; Chirac v. Chirac, 2 Wh. 259; 4 L. ed. 234; Hauen- stein v. Lynham, 100 U. 8. 483; 25 L. ed. 628. 4 Prevost v. Greenaux, 19 How. 1; 15 L. ed. 572; License Cases (dissenting opinion of Daniel), 5 How. 504; 12 L. ed. 256; Passenger Cases (dissenting opinion of Taney), 7 How. 283; 12 L. ed. 702. 5 Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; Hopkirk v. Bell, 3 Cr. 454; 2 L. ed. 497; Fairfax v. Hunter, 7 Cr. 603; 3 L. ed. 453; Chirac v. Chirac, 2 Wh. 259; 4 L. ed. 234; Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328; Hauenstein v. Lynham, 100 U. S. 483; 25 L. ed. 628. See also dictum in Ward v. Race Horse, 163 U. 8. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244. See also note 8. 6 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. 172 . PRINCIPLES OF THE CONSTITUTIONAL “That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear. It is also clear that the protection that should be afforded the citi- zens of one country owning property in another, and the ° manner in which the property may be transferred, devised or inherited, are fitting subjects for such negotiations and of regulation by mutual stipulations between the two coun- tries. ... The treaty power, as expressed in the Con- stitution, 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 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." But with these exceptions, it is not perceived that there is any limit to the ques- tions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.” In a number of instances State laws with reference to matters ordinarily within State cognizance have been held void when in conflict with existing Federal treaties. Ex- amples of this are laws denying the right of the alien to be employed by contractors upon public works, or to be em- ployed by private corporations.’ How, then, are we to harmonize these declarations that the reserved rights of the States may not be infringed by 7 Citing Fort Leavenworth R. R. Co. v. Lowe, 114 U. 8. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264. 8 Baker v. Portland, 5 Sawyer, 566; In re Tiburcio, 6 Sawyer, 349; In re Ah Chong, 6 Sawyer, 451. Cf. Proceedings of the Am. Soc. of International Law, 1907, address by Prof. C. N. Gregory. Law oF THE UNITED STATES 173 the treaty power with the fact that, in specific instances, the invasion of these rights has been upheld? Strictly speaking, the two positions, thus absolutely stated, cannot be harmonized. There is no principle which can be stated that_will bring the dicta quoted into consonance with the decisions 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 im- proper, 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 prop- erly relates to international 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, when the necessity from the international standpoint arises the treaty-making power may be exer- cised, even though thereby the rights ordinarily reserved to the States are invaded. Implied limitations upon the treaty-making power Assuming, then, that the reasoning that has gone before is correct, it may be asked: Are we led to the conclusion that, in extent, the treaty-making power is without con- stitutional limits? 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 regu- lation or control of a matter not properly and fairly a matter of international concern. It cannot be employed 174 PRINCIPLES OF THE CONSTITUTIONAL with reference to a matter not legitimately a subject for international agreement, any more than can the States under a claim of an exercise of their police powers regulate 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 notwithstand- ing, it would not be appropriate, and, therefore, 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 within which they might live. So likewise, it would not be a proper or constitutional exercise of the treaty-making power to pro- vide that Congress should have a general legislative au- thority 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 exer- cised by another department. For these are matters of domestic national law with which foreign powers have no concern. In short, the treaty-making power is to be exercised with constitutional bona fides. The principle which has been stated, that, to be con- stitutionally valid, a treaty must have reference to a sub- ject properly a matter of 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 Congress but to the National Government as a whole. One final point with reference to the treaty-making power deserves notice. This is that where, for its enforce- ment, a 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 Law oF THE UNITED STATES 175 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 con- stitutional power to enter into. A somewhat analogous case is the legislative power recognized to belong to Con- gress with reference to matters of admiralty and marine, because of the grant to the Federal Judiciary of jurisdiction over admiralty and maritime causes.® The denunciation of treaties Though the Senate participates in the ratification of treaties, the President has at times exercised the au- thority, 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, how- ever, it is usual for him to 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 ques- tion the decision upon which by the political departments of the government is binding upon the judicial department. Construction of treaties As to public rights the courts hold themselves bound by 9 That the treaty-making power is incompetent to “incorporate” foreign territory into the United States (Insular Cases) or to provide that children born’ within the United States of alien parents shall not be citizens of the United States (United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. Rep. 456; 42 L. ed. 890) we have already seen. That the treaty-making power may alienate territory would seem to be certain. See Willoughby On the Constitution, § 219. See also the same work, §§ 220-222, for a discussion of constitutional questions connected with the violation of treaties, whether by affirm- ative acts upon the part of the United States, by failure of Congress to enact the necessary ancillary legislation, by subsequent repealing statute, or by the declaration of the courts that they are uncon- stitutional and void of legal force. 176 PRINCIPLES OF CONSTITUTIONAL LAW the construction given to treaties by the political depart- ments. 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 meaning to be given to treaty provisions. CHAPTER XXVI THE AMENDMENT OF THE FEDERAL CONSTITUTION The amending clause The amendment of the Federal Constitution, while politically a subject of great importance, has given rise to few legal adjudications. Article V of the Constitution provides: “ The Congress, whenever two-thirds of both Houses shall deem it neces- sary, 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 amend- ments, which, in either case, shall be valid to all intents and purposes as parts of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no 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.” 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. 12 177 178 PRINCIPLES OF THE CONSTITUTIONAL When proposing amendments it has been held that two- thirds of those present in the Houses of Congress and not two-thirds of their entire membership is required. The requirement of a two-thirds vote applies only as to the vote on the final passage of the proposal. Proposed amendments, 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 in proposals of the other House.! The President’s approval of a proposed amendment is not required. In Hollingsworth v. Virginia® the court without argument say: “The negative of the President applies only to the ordinary cases of legislation; he has nothing to do with the proposition or adoption of amend- ments to the Constitution.” In scope the amending power is now limited as to but one subject, namely, the equal representation of the States in the Senate. 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 amend- ments providing for an unequal senatorial representation of the States.® It would seem that a State legislature which has rejected an amendment proposed by Congress, may later reconsider its action and give its approval.* This in fact was done by several States with reference to the Fourteenth Amend- ment, and the ratifications thus given were accepted. That a ratification once given may not be withdrawn would also seem to be settled by the action taken by the 1Hinds Precedents of the House of Representatives, V, §§ 7029- 7039. 23 Dall. 378; 1 L. ed. 644. 3 Cf. Von Holst, Constitutional Law of the United States, 31, note. 4 Jameson, The Constitutional Convention, § 576. Law or THE UNITED STATES 179 Federal authorities in counting among those ratifying the Fourteenth Amendment certain States which, having ratified, later attempted to reverse this action.® 5 Jameson, Jd., §§ 577-584. For an excellent treatment of the various constitutional questions that have been raised in the States with reference to the amendment of their several Constitutions, see Dodd, The Revision and Amendment of State Constitutions (1910). CHAPTER XXVII CONGRESS—ITS ORGANIZATION: PRIVILEGES OF MEMBERS The first section of Article I of the Constitution provides that ‘‘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.’ The following sec- tions of this article provide for the composition and organ- ization of these two branches of the national legislature and enumerate the powers which they may collectively and severally exercise. In the present chapters we shall be concerned with the constitutional provisions for the or- ganization of Congress. 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, and be, when elected, inhabitants of the State in which they are chosen. 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. It is furthermore provided by the Constitution that “no person holding an office under the United States shall be a member of either house during his continuance in office.” Furthermore, by §3 of the Fourteenth Amendment it is declared that: “‘No person shall be a Senator or Representative in Congress, or Elector of President and 180 Law oF THE UNITED STATES 181 Vice-President, or hold an office, civil or military, under the United States, 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.’ It will be observed that habitancy and not mere resi- dency in a State is required. Habitancy implies greater permanency than does residence. ‘A man’s residence is often a legal conclusion from statements showing his in- tention. Habitancy is a physical fact which may be proved by eyewitnesses.” ? 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 an inhabitant of another State without thereby forfeiting his seat. Qualifications determined by Congress Though essentially a judicial function the conclusive determination as to whether the constitutional qualifica- tions for membership have been met is, by the Constitu-_, tion, placed in the hands of each of the two Houses of Congress. It thus happens that, though neither House may formally impose qualifications additional to those mentioned in the Constitution, or waive those that are 1 Congress has removed this disability from all, or practically all persons suffering from it because of participation in the Civil War. Delegates from the Territories who are given the right to sit and speak but not to vote in the House of Representatives have their qualifications and terms of office determined by the Congress. 2 Foster, Commentaries, § 62. 182 PRINCIPLES OF THE CONSTITUTIONAL mentioned, each may in practice do either of these things. For example, in 1900, the House excluded Brigham H. Roberts of Utah because of various charges brought against him, none of which, however, alleged a constitutional dis- qualification. In this case it was strenuously argued that, having the necessary constitutional qualifications, Rob- erts should be admitted to membership, and then if the House should see fit, he might be expelled by a two- thirds vote. For the right to expel, it is admitted, is absolute, and may be exercised for any reason which the ~ House thinks adequate.. The House, however, by a large majority, voted to exclude Roberts.* It is plain that no State may add qualifications to those required by the Constitution of members of Congress. Thus in 1865, the governor of a State having refused to issue credentials to the rival claimants, because they were disqualified under provisions 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.> 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 person receiving the next highest vote, to his seat.® Members who have already taken the oath may, it has been held, be unseated by a majority vote. That is to say, disqualification being shown the process of expulsion, which requires a two-thirds vote, is not needed.’ 3 Const., Art. I, § 5, cl. 2. ‘For a full statement of the arguments pro and contra in this important case, see House Rpt. 85, 56th Congress, Ist Session. Also Hinds Precedents of the House of Representatives, Vol. I. 5 Hinds, § 415. Story’s Commentaries, §§ 623-629. 6 Hinds, § 424. 7 Hinds, § 424. Law oF THE Unrrep States 183 In contested election cases, each House may examine witnesses, compel testimony and the production of papers, and punish witnesses for contempt.? Imprisonment for contempt must, however, cease with the adjournment of the Congress which orders it, for with the dissolution of that body its authority necessarily ceases.’ Disqualification of congressmen to hold Federal office The second clause of §6 of Article I of the Constitu- tion provides that: ‘‘No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time, and no per- son holding any office under the United States shall be a member of either House during 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 trus- tees of public Federal institutions appointed by law, are not held disqualified.” 8 Kilbourn v. Thompson, 103 U. 8. 168; 26 L. ed. 377. 9 Anderson v. Dunn, 6 Wh. 204; 5 L. ed. 242. For historical ac- counts of the manner in which contested elections in Congress have been considered, see Journal of Social Science, 1870, p. 56; and Political Science Quarterly, XX, 421. In the case of Re Loney, 134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949, it was held that a notary public or other State officer designated by Congress to take depositions in contested election cases acts under authority of Con- gress and that perjury committed before him is an offense exclu- sively cognizable in the Federal courts. 10 House Rpt. 2205, 55th Cong. 3d Sess. In United States v. Hartwell, 6 Wall. 385; 18 L. ed. 830, it is declared that “an office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.” 184 PRINCIPLES OF THE CONSTITUTIONAL 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 Wisconsin until January, 1906, although the Senate, after his election to that body, met in extra ses- sion the preceding March. Senator La Follette did not, however, appear in the Senate or take the oath until Jan- uary 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. The seat of a member who has accepted an incompatible office may be declared vacant by a majority vote.” Privileges of members of Congress The first clause of the Sixth Section of Article I of the Constitution provides: “The Senators and Representa- tives . . . 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 importance, as arrest of the person is now almost never authorized except for crimes which fall within the classes exempt from the privilege. The words “treason, felony and breach of the peace” have been construed to mean all indictable crimes.” 1 Hinds, § 492. 12 Hinds, § 504. 18 Williamson v. United States, 207 U. S. 425; 28 Sup. Ct. Rep. Law or THE Unirep States 185 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 libel- ous matter spoken in Congress. As Story observes: ‘No 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 reputation and invade the repose of other citizens.” 14 It may be further observed that the constitutional im- munity extends to witnesses appearing before committees of Congress, and, probably, to petitions, and other ad- dresses to that body. 163; 52 L. ed. 278. Also, Hinds, § 2673. In Kilbourn v. Thompson, 103 U. 8. 168; 26 L. ed. 377, is considered the personal liability of the individual members of Congress who had participated in a com- mitment for contempt which commitment was beyond the con- stitutional power of Congress. 14 Commentaries, § 863. 15 See the excellent paper by Mr. Van Vechten Veeder entitled “Absolute Immunity in Defamation: Legislative and Executive Proceedings,” in the Columbia Law Review, Feb., 1910. CHAPTER XXVIII ELECTION OF MEMBERS OF CONGRESS Their apportionment among the States The Constitution provides that the House of Repre- sentatives 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. The Fourteenth Amendment further provides that “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 or judicial of- ficers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, be- ing twenty-one years of age and citizens of the United States, or in any way abridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the num- ber 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 in 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, 186 Law oF THE UNITED STATES 187 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.” As is well known, most of the Southern States have, by various provisions inserted 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 enforcement of the reduction of representation clause of the Fourteenth Amendment, but as yet no decisive steps have been taken. Educational qualifications 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 performance of a pub- lic duty and may be classed, as may also presence at the polls, with registration, or the observance of any other preliminary to insure fairness and protect against fraud. Nor can it be said that to require ability to read is any de- nial of suffrage. To refuse to receive one’s vote because he was born in some particular country rather than else- where, 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 neg- lect. It denies to no man the suffrage, but the privilege 188 PRINCIPLES OF THE CONSTITUTIONAL is freely tendered to all, subject: only to a condition that is beneficial in its performance and light in its burden. Ifa property qualification, or the payment of taxes on property when one has none to be taxed, is made a condition to suffrage, there may be room for more question.””! Mode of apportionment In the first Congress representatives were apportioned among the States according to a rough estimate as to their respective populations: Since that time new apportion- ments have been based upon the figures of the decennial censuses. The first apportionment bill passed by Congress was vetoed by President Washington as unconstitutional in that it provided for a representative for each thirty thou- sand of population, the minimum fixed by the Constitu- tion, and also an additional number to the States having the largest fractions left over after the division was made. Until 1842 fractions of populations left over by divid- ing the populations of the séveral States by the number selected for determining the number of Representatives, went unrepresented. Since that time, however, where these fractions have exceeded a half of the ratio number, an additional representative has been allowed. 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 1 Principles of Constitutional Law, ed. 1898, p. 292. The State courts have very generally held that reasonable registration and other laws for the protection of the voter against fraud, intimida- tion, ignorance, etc., are not unconstitutional under their several State Constitutions, as adding to the qualifications there laid down. See Cooley, Constitutional Limitations, 7th ed., Chapter XVI Law or THE UNITED STATES 189 these districts shall be composed of contiguous territory. It has become an established rule of political practice, though not one of constitutional obligation, that a rep- resentative 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 has been no question as to their right: to sit. In certain cases, congressmen 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 re- apportionment, additional representatives have been al- lotted to a State and that State has not redistricted it- self so as to provide the necessary additional districts. In such cases, of course, only the additional representatives are elected at large. Suffrage qualifications The Constitution provides that for the election of Repre- sentatives to Congress, “ the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.’ This places the regulation of the suffrage wholly within the con- trol of the several States, except for the restriction placed upon them by the Fifteenth Amendment. There thus exists the rather curious fact that the National Government, 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 con- | ferred, this suffrage upon persons not citizens of the United States. That the suffrage is not a necessary incident of Federal citizenship is declared by the Supreme Court in Minor ». Happersett,? a case in which it was argued that a woman, 221 Wall. 162; 22 L. ed. 627. See also United States v. Reese, 92 190 PRINCIPLES OF THE CONSTITUTIONAL a citizen of the United States, was, as such, entitled to a vote. Although, as appears from the foregoing, the right of de- termining the conditions upon which the suffrage is granted lies exclusively 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 violation of certain other general lim- itations laid upon the States. Thus, for example, a dis- franchising 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.’ A distinction is to be made between the right to vote for Representatives in Congress and the conditions upon which that right is granted. In the preceding paragraphs 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 say, the right springs from the provision of the Federal Constitu- tion 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 Con- stitution thus gives the right but accepts, as its own, the qualifications which the States severally see fit to establish with reference to the election of the most numerous branch of their own several State legislatures.‘ U.S. 214; 23 L. ed. 563; United States ». Cruikshank, 92 U. 8. 542; 23 L. ed. 588; Pope v. Williams, 193 U. 8. 621; 24 Sup. Ct. Rep. 573; 48 L. ed. 817, and Neal v. Delaware, 103 U. S. 370; 26 L. ed. 567. 3’ Pope v. Williams, 193 U. 8. 621; 24 Sup. Ct. Rep. 573; 48 L. ed. 817. ; ‘4 Ex parte Yarbrough, 110 U. 8S. 651; 4 Sup. Ct. Rep. 152; 28 L. | ed. 274; Wiley v. Sinkler, 179 U. 8. 58; 21 Sup. Ct. Rep. 17; 45 L. ed. ! K 84. 1 Law oF THE UNITED STATES 191 Federal control of congressional elections According to the Constitution, ‘‘The times, places and manner of holding elections for Senators and Representa- tives, 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 choos- ing Senators.’ ® In this clause sufficient authority is given the Federal Government, should it see fit, to assume entire and ex- clusive control of elections of Senators and Representa- tives; to establish by acts of Congress the regulations governing the same, and to apply and enforce these regu- lations by Federal officials and tribunals. The United States government did not exercise any of the power thus given it until 1842, when conceiving 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 sepa- rate district composed of contiguous territory.6 In 1866 an act was passed regulating the election of Senators by the State legislatures. In 1873 Congress again acted, pro- viding by law that the election of Representatives in all of the States should occur upon the same day, the Tuesday following the first Monday in November, 1876, and on the same day of every second year thereafter.’ In like man- > Art. I, § 4, cl. 1. 65 Stat. at L. 491. 7 By act of March 3, 1875, this provision was made, ‘‘not to apply to any State that has 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 are held under this provision.” 192 PRINCIPLES OF THE CONSTITUTIONAL ner Congress fixed the day for the election of presidential electors. By act of 1872, amended by that of February 14, 1899, it is provided that “all votes for Representatives in Con- gress must be by written or printed ballot or voting ma- chine, 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; ® and by the law of 1870 it is provided generally at all elections that no persons shall be prevented from voting because of race, color or previous condition of servitude.® A general law enacted in 1870 (amended in 1871), en- titled an act “‘To enforce the Rights of Citizens of the United States to Vote in the Several States of the Union,” while not itself establishing positive regulations of its own, provided for the appointment of marshals and super- visors of elections to see to it that the State laws governing elections of Representatives to Congress were fairly and effectively executed.” This right of ovetsight 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 to 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 when those laws related to the election of members of the National Legislature. : This controversy reached a judicial settlement in the 8 Rev. Stat., §§ 2003, 5530, 5528. ° Rev. Stat., § 2004. This law was enacted under authority given by the Fifteenth Amendment. ‘ 10 Repealed, Feb. 8, 1894. Law oF THE UNITED STATES 193 case of Hx parte Siebold,!! decided in 1879, in which the’ Federal authority was upheld, the court holding that ‘the State laws which Congress sees no occasion to alter, but which it allows to stand, are in effect adopted by Congress. In Ex parte Clarke’? and Ex parte Yarbrough 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 its elections from violence and corruption.” 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 prohibitions expressed in the first sec- tion. 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 §4 of Article I. In other respects, however, the power granted is much narrower, for it authorizes Federal inter- vention only in cases where the right to vote has been denied or abridged on account of race, color or previous condition of servitude. Thus in United States v. Reese!4 an act of Congress which made it a crime to hinder, delay or restrict any citizen in doing any act to qualify him to vote or in voting at an election, was held void because its operation was not confined to cases in which the inter- 1100 U.S. 371; 25 L. ed. 717. 12100 U. S. 399; 25 L. ed. 715. 13110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 274. In this case the law of 1870 was held to support an indictment charging a con- spiracy to intimidate a citizen of African descent from voting. See Rev. Stat., §§ 2208, 5520. 1492 U.S, 214; 23 L. ed. 563. 13 194 PRINCIPLES OF THE CONSTITUTIONAL ference was on account of race, color or previous condition of servitude. In James v. Bowman” it was finally determined by the Supreme Court that the prohibition of the Fifteenth Amendment applied not to private but only to State action. Therefore the court held void an act of Congress which provided for the punishment 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. 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 con- siderable, 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 disfranchisement provisions expressly directed against the negroes, but by requiring all voters to be registered, and by 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 them. If the courts may freely go behind the terms of a con- stitutional clause to discover its intent, and to construe it by that intent, or if they may test its validity by its actual operation in practice, it would seem that a possible op- portunity is afforded for 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 to the terms of a law, to determine its real intent and effect, two interesting 15 190 U. 8. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979. Law or THE UNITED STATES 195 cases are Yick Wo v. Hopkins and Williams v. Missis- sippi.!’? In the former case the law or ordinance in ques-- tion was held void in that it attempted to give to an ad- ministrative officer an arbitrary discretionary power, and also in that an actual arbitrary discriminating 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 discrimina- tion 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 adminis- tered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrim- inations between persons in similar circumstances, material to their rights, the denial of justice is still within the pro- hibition of the Constitution.” This doctrine, however, the court say in the Williams case is not applicable to the Constitution 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.” Election of Senators The Constitution provides that Senators in the Federal 16 118 U. S. 356; 6 Sup. Ct. Rep. 1064; 30 L. ed. 220. 17170 U.S. 218; 18 Sup. Ct. Rep. 583; 42 L. ed. 1012. 18 For other attempts to obtain judicial pronouncements upon the constitutionality of these disfranchising clauses in the State Consti- tutions, see Giles v. Harris, 189 U. 8. 475; 23 Sup. Ct. Rep. 639; 47 L. ed. 909; Giles v. Teasley, 193 U. S. 146; 24 Sup. Ct. Rep. 359; 48 L. ed. 655; Jones v. Montague, 194 U.S. 147; 24 Sup. Ct. Rep. 611; 48 L. ed. 913. For a general discussion of this question, and the possibility of effective congressional action, see the article by Hon. John C. Rose in the American Political Science Review, I, 41, entitled “Negro Suffrage, the Constitutional Point of View.” 196 PRINCIPLES OF THE CONSTITUTIONAL Congress shall be chosen by the legislatures of the several . States, and that “times, places, and manner of holding elections for Senators and Representatives shall be pre- scribed in each State by the legislature thereof; but that Congress may at any time by law make or alter such regu- lations, except as to the places of choosing Senators.” Not until 1866 did Congress exercise the control over the election 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 Harlan, 1857, that in such joint conventions a quorum of both houses must be present. By the act of 1866 the entire matter was federally de- termined. The text of this law is given in the footnote.” 1940 Rev. Stat., §§ 14-19. Section 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 organization thereof, proceed to elect a Senator in Congress. Section 15. Such election shall be conducted in the following manner: Each house shall openly by viva-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 Law or THE UNITED STaTEs. 197 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 judg- ment, will ordinarily recognize that body which is accepted as de jure by the other State authorities. Vacancies in the Senate It is provided by the Constitution that if vacancies in the Senate “happen by resignation or otherwise, the execu- tive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.” There has been considerable difference of opinion as to the proper construction to be given to the term ‘“‘ happen” as employed in the foregoing constitutional clause. By some it has been argued that a vacancy ‘‘ happens ”’ when- ever, 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 op- portunity to elect a Senator and has failed to do so, it can- not 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 body has thus impliedly 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 senatorial practice has not been uniform in respect to executive appointments to fill vacancies, but its action 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. 198 PRINCIPLES OF ConsTITUTIONAL Law in the Quay case has probably determined the doctrine for the future. 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 acceptance of a disqualifying office. CHAPTER XXIX THE PROCESS OF LEGISLATION AS CONSTITUTIONALLY DETERMINED Constitutional provisions To a certain extent the manner of conducting business in Congress, and the processes of legislation are determined by the Constitution. It is provided that the Vice Presi- dent 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 Presi- dent 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 its officers, including the 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 procedure, to punish its members for disorderly behavior, and with the concurrence of two-thirds to expel a member. Neither House may, without the consent of the other 199 200 PRINCIPLES OF THE CONSTITUTIONAL House, adjourn for more than three days, nor to any other place than that in which the Houses are sitting. Each House is required to keep a journal of its proceed- ings, and from time to time to publish the same, excepting such parts as may in its judgment require secrecy; and ’ itis ordered that, at the desire of one-fifth of those present, the yeas and nays of members of either House on any ques- tion shall be entered_on this journal. The foregoing constitutional provisions impose duties upon and grant powers to the two Houses of Congress, the fulfillment and exercise of which are placed within the discretion of the Houses themselves. Very few questions arising under these clauses have, therefore, or could have been, brought before the courts. One important point has, however, been raised and deserves attention. This is discussed in the next section. Conclusiveness of the records of congressional proceedings In a few instances the validity of laws purporting 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 Con- stitution. This has necessitated the examination of the records of the proceedings of Congress and a determination of the evidential value to be given to those proceedings. In Field v. Clark! it was contended by the appellants that an enrolled act in the custody of the Secretary of State, and appearing 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 1143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294. Law oF THE UNITED StaTEs 201 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, and signa- ture 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 constitutional re- quirements for legislation have been satisfied, and 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 isnot competent for the appellants to show, from the journals of either House, from the reports of committees, or from other documents, printed by authority of Con- gress, 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? the evidential value of records of congressional proceedings was again considered, the court saying: “Assuming that . . . reference may be had to the Journal . . . and assuming, though without decid- ing, that the facts which the Constitution requires to be placed on the Journal may be appealed to in the ques- tion whether a law has been legally enacted, yet if refer- ence may be had to such Journal, it must be assumed to speak the truth.” Constitutional force of rules of the House and Senate In United States v. Ballin was also raised an interesting question. 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 Constitu- tion empowers each House to determine its rules of pro- 2144 U.S. 1; 12 Sup. Ct. Rep. 507; 36 L. ed. 321. 202 PRINCIPLES OF THE CONSTITUTIONAL ceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between 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 different 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.” 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 National Bank v. Nebeker * 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, refused to agree to or to consider senatorial amendments to revenue 3 Art. I, $7, el. 1. 4167 U.S. 196; 17 Sup. Ct. Rep. 766; 42 L. ed. 134. Law oF THE UNITED STATES , 203 measures upon the ground that the amendments have enlarged the scope or changed the character of the measure as originated in the House. Especially has the House denied, and the Senate insisted upon its right to originate measures which repeal a law or portion of a law imposing taxes, duties, imposts or excises.° It would seem that the Senate has full power to originate measures appropriating money from the Federal treasury. This right has at times been denied by certain members of the House,® but the House has not itself formally adopted this negative view. In Flint v. Stone Tracy Co.,” the court say with reference to the corporation tax law which con- stitutes § 38 of the Tariff Act of August 5, 1909, and which originated in the Senate as an amendment to the law as passed by the House, that the act itself having originated in the lower branch of Congress, and the amendment being germane to the subject-matter of the bill, it was not be- yond the power of the Senate to propose it. Presidential participation in lawmaking The duties and powers of the President with reference to the enactment of laws are stated in Clause 2 of §7 of Article I of the Constitution. 5 See generally upon this subject Hind’s Precedents of the House of Representatives, Chapter XLVII. 6 See especially the views of the minority in House Report, 147, 46th Cong., 3d Sess. Also, Hinds, § 1500. 7220 U. S. 107; 31 Sup. Ct. Rep. 342. The court, however, add: “In thus deciding we do not wish to be regarded as holding that the journals of the House and Senate may be examined to invali- date an act which has been passed and signed by the presiding officers of the House and Senate, and approved by the President, and duly deposited with the State Department.’”’ Citing: Field ». Clark, 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294; Harwood v. Wentworth, 162 U.S. 547; 16 Sup. Ct. Rep. 890; 40 L. ed. 1069; Bank v. Nebeker, 167 U. S. 196; 17 Sup. Ct. Rep. 766; 42 L. ed. 134, 204 PRINCIPLES OF CONSTITUTIONAL LAW The Federal Executive has never attempted the exer- cise of, or claimed, the right to veto parts of measures sub- mitted 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 attempted 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.® _ It cannot be said to be definitely established, but the better view would seem to be that the President may not sign a bill after the adjournment of Congress.’ It has been declared, however, that he may sign during a recess of that body.” 8 For a full discussion of the distinctions between acts, and joint and concurrent resolutions, see a report of the Senate Judiciary Committee, Sen. Rpt., Vol. 1335, 54th Cong., 2d Sess. Joint res- olutions, being in general legislative in character, require the Presi- dent’s signature. § Willoughby, United States Constitutional Law, § 257. 10 La Abra Silver Mining Co. v. United States, 175 U. S. 423; 20 Sup. Ct. Rep. 168; 44 L. ed. 223. CHAPTER XXX THE GENERAL POWERS OF CONGRESS General powers In the chapters which are immediately to follow will be taken up seriatim the legislative powers of Congress ex- cept in so far as these powers have been considered inci- dentally elsewhere in this treatise. In addition to their legislative powers the Houses of Congress have certain other powers, judicial or executive in character, such as, for example, with reference to impeach- ments, to punishing their members for disorderly conduct, or their expulsion if necessary, the determination of con- tested elections, etc. Each House of Congress has also, it has been held, the power to obtain the information nec- essary for an intelligent exercise of its lawmaking power, and for this purpose to summon witnesses, and compel the production of documents, and to punish as contempt dis- obedience to orders thus given. These non-legislative duties are discussed elsewhere in this treatise, and espe- cially 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 legislation is necessary to make effective the provisions of the Constitution 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 205 206 PRINCIPLES OF THE CONSTITUTIONAL event of its non-performance. Thus the Constitution 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 estab- lish.” 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 failing as well to pro- vide for the appointment and remuneration of Justices of the Supreme Court, Congress might render impossible the exercise of any Federal judicial power whatever. Once established the Supreme Court, by the immediate effect of constitutional provision, has the original jurisdiction provided for in § 2 of Article I, but it is unable to exercise any appellate jurisdiction by way of appeals from either the State or lower Federal 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 adminis- tration of the Federal Government is absolutely dependent upon the action of Congress. For it may be laid down as a principle which admits of no exceptions that no legal means exist for compelling a legislative body to enact a given piece of legislation, or, indeed, to perform any of its functions.! Though, in many respects, not self-executing, and the obligations created by its provisions not enforcible by legal process, the Federal Constitution is, it is to be re- peated, in all other respects a law and directly enforcible 1 The assertion has been made that should Congress fail to call a convention for the amendment of the Constitution a request to that effect having been made by two-thirds of the States, a mandamus might be issued to compel it to do so, the function of Congress in the premises being a purely ministerial one. The better view would, however, seem to be that the writ would not be issued, Law oF THE UNITED STATES 207 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, qguoad hoc acting as a national law-making body, established it and ratified the amendments to it. CHAPTER XXXI- FEDERAL POWERS OF TAXATION Taxes defined Taxes have been defined by an eminent authority to be “burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes.” + The same author in another work observes that they “differ from forced contributions, 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 contribution, and a just apportionment of the burdens of government.” ? 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 constitutional grant, an implied power to compel those subject to its authority to contribute the financial means necessary to 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. The determination of the precise amount of the tax which each individual or piece of property shall pay accord- ing to the general rule legislatively laid down, is an ad- 1 Cooley, Constitutional Limitations, 7th ed., 678. 2 Taxation, Chapter I. 208 Law oF THE UNITED STATES 209 ministrative act.? The determination whether the legis- lative rule is, constitutionally speaking, a proper one, and whether the administrative officials have followed it, as well as whether they have observed all the other require- ments of law, is, of course, a judicial function. Thus the administrative official must in all cases in his assessments both as to classes of persons and kinds of property, and as to rates of taxation, 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 specific pieces of property for taxation purposes. 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. 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. When 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 persons so taxed are held compensated by the special or general benefits re- ceived from the existence and operations of the govern- ment. 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. / 3 Meriwether v. Garrett, 102 U. S. 472; 26 L. ed. 197. 14 210 PRINCIPLES OF THE CONSTITUTIONAL from express constitutional limitations, the power places every person, every occupation, 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 the 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 govern- ment 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, therefore, give to their government a right of taxing themselves and 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 con- cludes, “involves the power to destroy.” The use of the taxing power, not for revenue but for regula- tion By definition and by primary purpose a tax is a means whereby a public governing power seeks to secure a reve- nue. It has been generally held, however, that a tax may be levied avowedly and exclusively not for revenue but asa means for regulating a matter, which is within the legisla- 44 Wh. 316; 4 L. ed, 579. Law oF THE UNITED StaTEs 211 ture’s power to control. Thus in Veazie Bank v. Fenno ® the power of Congress to levy a tax as a means of regulat- ing the currency was upheld. So, also, in Edye v. Robert- son (Head Money Cases)® a law imposing a tax upon own- ers of vessels bringing immigrants to this country was held to be a regulation of commerce rather than a revenue measure. 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. Not being, in fact tax laws, they are not subject to the constitutional limitations upon revenue measures as regards uniformity, apportionment, etc. A proposition different 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 or con- trol. This point was squarely raised, with reference to the power of the Federal Government in the comparatively recent case of McCray v. United States,’ 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 manufacture 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 58 Wall. 533; 19 L. ed. 482. 6 112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798. 7195 U.S. 27; 24 Sup. Ct. Rep. 769; 49 L. ed. 78. See a valuable article in Michigan Law Review, V1, 277, entitled “May Congress Levy Money Exactions Designated Taxes, Solely for the Purpose of Destruction?” 212 PRINCIPLES OF THE CONSTITUTIONAL revenue should be secured for the Federal Government, 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, held that the law being upon its face a revenue measure, its ultimate effect or the motive of its enactors 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 legis- lative power of Congress, but, that determined in the affirmative, the measure may not be invalidated because of consequences that may arise from its enforcement. The McCray case is, it will be seen, in one respect the opposite of Veazie v. Fenno and the Head Money Cases, 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 laws were justified as being, in real character, not revenue measures at all, and, therefore, not subject to the limitations constitutionally imposed upon Congress when enacting revenue laws. Federal powers of taxation By §8 of Article I of the Constitution, Congress is given the general power “to lay and collect taxes, duties, im- posts and excises.”’ § 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 mean- ing according to which they become equivalent to customs 8 The clause continues: “to pay the debts and provide for the common defense and general welfare of the United States.” This is not agrant of power. Cf. Story, Commentaries, §§ 902-926. See, also, 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. Law oF THE UNITED STATES 213 or customs dues, that is, to taxes levied upon goods im- ported from foreign countries. -An excise is an inland tax upon manufacture or retail sale of commodities. It is thus often termed a consump- tion tax. In the United States the excise taxes are more generally known as internal revenue duties. The general power to levy taxes being given, the Con- stitution enumerates duties, imposts and excises as the classes of taxes which are to be levied uniformly through- out the United States. Limitations upon the Federal taxing power The power of taxation given to the Federal Government is comprehensive and complete, embracing all possible subjects and modes of taxation except in so far as the Con- stitution, in other clauses, expressly limits the power, or except in so far as limitations 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;” (2) that “no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein- before directed to be taken;”’ and (3) that “no tax or duty shall be laid on articles exported from any State.’ The implied limitations upon the Federal taxing power, are those that relate to the general, if not absolute, ex- emption of State governmental agencies from Federal interference, whether by way of taxation or otherwise, and those arising out of all the express limitations upon, the Federal Government, which, of course, are as operative when the Federal Government is exercising its taxing ° For a.general discussion of the various definitions of excise, duty and imposts, see Pacific Ins. Co. v. Soule, 7 Wall. 433; 19 L. ed. 95. 0 Art. I, § 8, cl. 1; Art. I, § 7. el. 4; Art. I, § 8, el. 5. 214 PRINCIPLES OF THE CONSTITUTIONAL power, 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. Due process of law and taxation We have already seen that the taking of private prop- erty 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.1 Though the taking of the property in the form of 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 conform 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, cer- tain guarantees against injustice to individuals, especially by way of notice and opportunity for a hearing, shall be provided. Taxation must be for a public purpose A tax being in the eye of the law an enforced contribu- _—_— 11 Davidson v. New Orleans, 96 U. S. 97; 24 L. ed. 616. Law or THE Unitrep STATES 215 tion from persons or property to raise money for a public purpose, it follows that where this public purpose is ab- sent, the contribution sought to be enforced cannot be justified as a tax but amounts to an attempt to take prop- erty 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 the tax is levied; and, in the second place, where this purpose is stated, the courts will, in deference to the legislative judgment, construe the purpose to be a public one if it is possible to do so. A leading Federal case with reference to this subject is that of Loan Association v. Topeka.!? 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 of the proceeds of taxes should be for a public purpose. Furthermore, 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 for the perform- ance of the duties thus constitutionally laid upon it. In fact, however, the limitation that an appropriation 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 en- terprises which the Federal Government is empowered to undertake, the doctrine has become an established one 1290 Wall. 655; 22 L. ed. 455. 216 PRINCIPLES OF THE CONSTITUTIONAL that Congress may appropriate money in aid of matters which the Federal Government is not constitutionally able itself to administer and regulate. The extent of the appropriating power of Congress is illustrated in the case of United States v. Realty Co.,!4 in which was upheld the power of Congress to appropriate money for the payment of certain claims which the Fed- eral Government was not legally but only morally obli- gated to satisfy. 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. No 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 pro- vided that they shall be uniform throughout the United States. Whether or not the equal protection of the laws is in- cluded within the general prohibition 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 18 See the paper by President Monroe, “ Views of the President of the United States on the Subject of Internal Improvements’”’ sub- mitted in 1822 in connection with his veto of the Cumberland Road Bill. 14163 U.S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215. 15 The Insular Cases held that this clause has no application to unincorporated territories. Law or THE Unrrep SraTEs 217 of rights against the violation of which by the State he is guaranteed by the Constitution. That this protection ap- plies within the field of taxation is well established.!® 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 assess- ment value of particular pieces of property. So also it follows that while the legislature may, within 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, particu- lar 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 classification 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.” Uniformity of 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 Constitution and in almost all if not in all of the State Constitutions that all laws shall be uniform, make it necessary that the assessments of all persons and property within the class or district selected for taxation shall be according to a uniform rule.¥ 16 Santa Clara v. 8. Pacific R. R. Co., 18 Fed. Rep. 385. 17 See especially the language of the court in Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. 8. 232; 10 Sup. Ct. Rep. 533; 33 L. ed. 892. Also, Am. Sugar Refining Co. v. Louisiana, 179 U. 8. 89; 21 Sup. Ct. Rep. 43; 45 L. ed. 102. 18 Cf. Cooley, Constitutional Limitations, 7th ed., 711, 724. 218 PRINCIPLES OF THE CONSTITUTIONAL What constitutes uniformity throughout the United States? In the Head Money Cases, speaking with reference to the requirement of the Federal Constitution that all duties, imposts and excises shall be uniform throughout the United States, the court say: ‘‘ The tax is uniform when it operates with the same force and effect in every place where the subject is to be found.” The principles of uniformity and of reasonable classifi- cation for purposes of taxation may be illustrated by cases passing upon the constitutionality of inheritance taxes. These 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 inheritances have been wholly ex- empted 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 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 fea- tures and because of the exemptions referred to above. In general, however, the laws have been upheld. In many cases the classifications in the State laws have been upheld as reasonable in themselves, but fundamen- tally the principle 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 19 112 U.S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798. Law or THE UNITED STATES 219 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 that creates it. A leading case in the Federal courts as to the constitu- tionality of a State inheritance tax law as tested by the requirements of the Fourteenth Amendment, is that of Magoun ». Illinois Trust & Savings Bank.” In this case the doctrine was reaffirmed that an inher- itance tax is not one on property but on the right to take property by devise or descent, and that this right, being a legislative creation, the States may attach conditions thereunto. Hence, it was held, that the States may, in taxing this privilege, discriminate between relatives and between relatives and strangers without violating State constitutional provisions requiring uniformity and equal- ity of taxation, or the provision of the Fourteenth Amend- ment 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.” The constitutionality of the inheritance tax provisions of the Federal law of 1898 was upheld in Knowlton v. Moore.”! Protective tariffs The constitutionality of a protective tariff, that is, a system of customs duties levied on foreign imports so ar- 2170 U. S. 283; 18 Sup. Ct. Rep. 594; 42 L. ed. 1037. See, also, Billings v. Illinois, 188 U. 8. 97; 23 Sup. Ct. Rep. 272; 47 L. ed. 400, and Campbell v. California, 200 U. 8. 87; 26 Sup. Ct. Rep. 182; 50 L. ed. 382. Cf. Judson, On Tazation, §§ 454, 455. 21178 U. S. 41; 20 Sup. Ct. Rep. 747; 44 L. ed. 969. See, also, Snyder v. Bettman, 190 U. S. 249; 23 Sup. Ct. Rep. 803; 47 L. ed. 1035. 220 PRINCIPLES OF THE CONSTITUTIONAL ranged as to furnish incidental protection to home in- dustries, though questioned in earlier years, has now passed beyond the range of controversy. Such laws being on their faces revenue measures, they may not be questioned because their effect is primarily to supply protection rather than revenue and because this was the intent of the enact- ing legislature. The doctrine of the court in McCray ». United States 2? 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 for- eign nations.” Bounties Theconstitutionality of bounties has never been squarely passed upon by the Supreme Court. Their validity was questioned in Field v. Clark 73 and United States v. Realty Co.,24 but in neither case did the court find itself obliged to decide the point. The ground upon whieh the consti- tutionality of bounties has been contested 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 advanced thereby; but in general they have held that an appropriation primarily and directly for the further- ance of private interests is not validated by the fact that incidentally public interests are in a measure promoted.” 22195 U.S. 27; 24 Sup. Ct. Rep. 769; 49 L. ed. 78. For a sum- mary of arguments pro and contra as to the constitutionality of protective tariffs, see Stanwood, Tariff Controversies in the United States. 23 143 U. 8. 649; 12 Sup. Ct. Rep. 495; 36 L.ed. 294. 24163 U.S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215. 25 For a definition of bounties see Downs v, United States, 187 Law oF THE UNITED STATES 221 Export duties Among the express limitations upon the powers of Con- gress, enumerated by the Constitution, is that which pro- vides 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.”’ 7” The term “ exports ” has been judicially limited to goods exported to foreign countries. In the earlier cases of Brown v. Maryland” and Almy ». California” it was taken for granted by the courts that the term applied also to goods carried from one State to another State of the Union, but in Woodruff v. Parham * these dicta were overruled and the position taken which has not since been disturbed, that the prohibition has reference only to exportations to countries foreign to the United States.*? 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, how- ever, 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 in- tended for export. This is the doctrine laid down in U. S. 496; 23 Sup. Ct. Rep. 222; 47 L. ed. 275. See also article, “The Sugar Bounties” in Harvard Law Review, V, 320. % Art. I, § 9, cl. 5. 27 Art. I, § 10, cl. 2. 2812 Wh. 419; 6 L. ed. 678. 29 24 How. 169; 16 L. ed. 644. 308 Wall. 123, 19 L. ed. 382. 31 See, also, Dooley v. United States, 183 U. S. 151; 22 Sup. Ct. Rep. 62; 43 L. ed. 128, for a discussion as to what constitutes an export tax. 222 PRINCIPLES OF THE CONSTITUTIONAL Coe v. Errol *? with reference to taxation by the States and in Turpin v. Burgess *? with reference to Federal taxation.*4 j Direct taxes The Constitution provides that capitation and other’ direct taxes levied by Congress shall be apportioned among the States in proportion to their respective populati In a number of instances the constitutionality of Federal taxes not thus apportioned has been questioned upon the ground that they were, within the constitutional 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 question. In 1798 in Hylton v. United States ** it was held that a tax on carriages was not a direct tax. In Pacific Insurance Co. v. Soule * a tax on receipts of insurance companies was held to be not a direct tax, the dicta in Hylton v. United States being relied upon as authority. In Veazie Bank v. Fenno * a tax on the circulating notes of State banks was held to be an indirect tax. 32116 U.S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715. 33 117 U.S. 504; 6 Sup. Ct. Rep. 835; 29 L. ed. 988. 34In Pace v. Burgess, 92 U. 8. 372; 23 L. ed. 657, it was held that the Federal requirement that stamps be affixed to packages of man- ufactured tobacco intended for exportation was a measure for the prevention of fraud, and not an export tax. In Fairbanks v. United States, 181 U. 8. 283; 21 Sup. Ct. Rep. 648; 45 L. ed. 862, it was held that a stamp tax on foreign bills of lading, imposed by the act of 1898 was, in effect, a tax on the articles exported and, as such, an export tax and void. Cf. Cornell v. Coyne, 192 U. S. 418; 24 Sup. Ct. Rep. 383; 48 L. ed. 504. 35 3 Dall. 171, 1 L. ed. 556. 7 Wall. 433; 19 L. ed. 95. 78 Wall, 533; 19 L. ed. 482, Law oF THE UNITED StTaTES 223 In Scholey v. Rew ® a tax on succession to real estate was held indirect, the tax being declared to be one not upon the land, but upon the right of succession. In Springer v. United States * the income taxes provided for by the law of 1862 were held not to be direct taxes. After reviewing earlier cases and citing the opinions of leading commentators, the court conclude: ‘Our conclu- sions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate.” Income Tax case —Pollock v. Farmers’ L. & T. Co. The foregoing line of cases, concluding with the emphatic assertion 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 mean- ing of the term were capitation taxes and taxes on real estate. However, in the so-called Income Tax Case— Pollock v. Farmers’ Loan & Trust Co.“°—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 also direct. Upon the first hearing the crucial point was, of course, whether a tax upon the income derived from real estate was distinguishable 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. 38 23 Wall. 331; 23 L. ed. 99. 39 102 U.S. 586; 26 L. ed. 253. 49157 U. S. 429; 15 Sup. Ct. Rep. 673; 39 L. ed. 759, and 158 U. S. 601; 15 Sup. Ct. Rep. 912; 39 L. ed. 1108. 224 PRINCIPLES OF THE CONSTITUTIONAL A rehearing of the case having been allowed the court broadened still further the scope of the term ‘‘direct taxes,” making it include taxes on personal property and upon the income therefrom. From this doctrine four justices dis- sented. In Nicol v. Ames 4! 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 because 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. In Patton v. Brady * a tax upon tobacco, however pre- pared, manufactured and sold, for consumption or sale, was held not a direct tax but an excise tax,—“ not a tax upon property as such, but upon certain kinds of property, having reference to their origin and intended use.” In Spreckles Sugar Refining Co. v. McClain ** 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 refining 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.” The constitutional definition of a direct tax was again 41173 U.S. 509; 19 Sup. Ct. Rep. 522; 43 L. ed. 786. 42184 U. S. 608; 22 Sup. Ct. Rep. 493; 46 L. ed. 713. 43.192 U.S. 397; 24 Sup. Ct. Rep. 376; 48 L. ed. 496. Law OF THE UNITED STATES 225 apy, raised in Knowlton v. Moore “4 with reference to the con- stitutionality of the inheritance taxes levied by the War Revenue Act of 1898. The court applied the well estab- lished 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. The Federal Corporation Tax of 1909 By § 38 of the Tariff Law of 1909 provision is made “that every corporation, joint-stock company, or associa- tion organized for profit and having a capital stock repre- sented by shares, and every insurance company now or hereafter organized under the laws of the United States or of any State or Territory of the United States, or under the acts of Congress applicable to Alaska or the District of Columbia, or now or hereafter organized under the laws of any foreign country, and engaged in business in any State or Territory of the United States or in Alaska or in the District of Columbia, shall be subject to pay an- nually a special excise tax with respect to the carrying on or doing business by such corporation, joint-stock com- pany or association, or insurance company equivalent to one per centum upon the entire net income over and above five thousand dollars, received by it from all sources dur- ing such year, exclusive of amounts received by it as divi- dends upon stock of other corporations, joint-stock com- panies or associations, or insurance companies subject to the tax hereby imposed, or if organized under the laws of .any foreign country, upon the amount of net income over and above five thousand dollars received by it from busi- ness transacted and capital invested within the United States and its Territories, Alaska and the District of 44178 U.S. 41; 20 Sup. Ct. Rep. 747; 44 L. ed. 969. 15 226 PRINCIPLES OF THE CONSTITUTIONAL Columbia, during such year, exclusive of amounts so re- ceived by it as dividends upon stock of other corporations, joint-stock companies or associations, or insurance com- panies subject to the tax hereby imposed.” In Flint v. Stone Tracy Co.,* the court unanimously held this tax to be an excise levied ‘‘ upon the doing of business, with the advantages which inhere in the peculiarities of corporate or joint-stock organizations of the character described.” As such it was held to be an indirect tax which did not need to be apportioned among the States according to their respective populations. The income of the concerns taxed was declared to be but the measure of the tax and not the subject-matter itself of the tax. Due process of law and taxation Due process of law requires that in the case 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.** In other cases, how- ever, no notice or opportunity for hearing need be given the taxpayer.” 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 administrative board whose action in this respect is judicial in character and whose determinations may be final and conclusive in the matter. Thus, for example, in § 2930 of the Revised Statutes, it is provided that in the matter of appraisement of imports an appeal shall be al- lowed the importer from the collector of customs to “one 45220 U.S. 107; 31 Sup. Ct. Rep. 342. 4 Or, if it be a special assessment for the purpose of some public improvement, as to whether the property in question is properly included within the assessment. 47 Hagar v. Reclamation District, 111 U.S. 701; 4 Sup. Ct. Rep. 663; 28 L. ed. 569. Law OF THE UNITED STATES 227 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 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. In Hilton v. Merritt * the constitutionality of these provisions was upheld. In Auffmordt v. Hedden * it was held that it was not necessary, and that it had not been the intention of Congress that the hearing before the ap- praisers or collector should be characterized by all the formalities of a court of law, but that the proceedings might, and from necessity would generally have to, be of a summary character. The court thus held that due proc- ess of law had not been denied because the importer or his agent had been practically excluded from the hearing upon the reappraisement, that he had not been permitted to confront the opposing witnesses by testimony on his own behalf or been allowed the aid of counsel. ‘No government,” said the court, ‘ could collect the revenues, or perform its necessary functions, if the system contended for by the plaintiffs were to prevail.” For the collection of taxes, as well as for the appraise- ment for taxation, summary modes of procedure may be had, the justification being that without such means no government can maintain itself. #110 U.S. 97; 3 Sup. Ct. Rep. 548; 28 L. ed. 83. 49 137 U.S. 310; 11 Sup. Ct. Rep. 103; 34 L. ed. 674. 50 See especially Murray’s Lessee v. Hoboken Land and Improve- ment Co., 18 How. 272; 15 L. ed. 372. 228 ‘PRINCIPLES OF THE CONSTITUTIONAL Due process of law in matters of taxation does not re- quire the same kind of notice that is required in a suit at law, or in proceedings for taking private property under the power of eminent domain. No violation of due proc- ess of law is committed when a tax is collected according to customary forms and established usages, or in subordi- nation to the principles which underlie them. ‘This must be so,”’ the court say in King v. Mullins,*! “else the ex- istence of government might be put in peril by the delays attendant upon formal judicial proceedings for the col- lection of taxes.” In most of the States it is provided by statute that the assessment and 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 re- straining the assessment or collection of taxes shall be maintained in any court.” *? The constitutionality of this provision has been sustained whenever questioned, administrative necessity furnishing the justification.*? Borrowing power of the United States: legal tender The Federal Government is given power ‘“‘to borrow money on the credit of the United States.” 54 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 Convention, but, ap- 51171 U.S. 404; 18 Sup. Ct. Rep. 925; 43 L. ed. 214. 8? Rev. Stat., § 3224. 53 Cheatham v. United States, 92 U. 8. 85; 23 L. ed. 561; Railroad Tax Cases, 92 U.S. 575: 23 L. ed. 663. 64 Art. I, § 8, el. 2. Law or THE Unrrep Strares 229 parently, not with the intention of thereby depriving the United States of the power, but upon the ground 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 con- troversy 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 vari- ous provisions of the Constitution, would seem to indicate an intention upon the part of the framers of the Constitu- tion that a legal tender character might be given by Con- gress only to the metallic money coined by the United States, and the Supreme Court in Hepburn v. Griswold * so held as regards the payment of debts between 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 author- ized as a legitimate war power. And finally, in the Legal Tender Cases, Juillard v. Greenman,” the authority in question was conceded to exist as implied in the general power to borrow money, whether in times of war or peace. 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 ». Lee say: “That provision has always been understood as referring only to a direct appropriation, and not to con- sequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that directly work harm and loss to individuals. A new tariff, an embargo, a draft, or a war, may inevitably bring upon individuals great losses, 558 Wall. 603; 19 L. ed. 513. 5812 Wall. 457; 20 L. ed. 287. 57110 U. S. 421; 4 Sup. Ct. Rep. 122, 28 L. ed. 204. 230 PRINCIPLES OF CONSTITUTIONAL LAW 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 declared.” CHAPTER XXXII INTERSTATE AND FOREIGN COMMERCE The commerce clause: its importance In this chapter will be considered the respective powers of the Federal Government and of the States with reference to interstate commerce. The constitutional law govern- ing this subject is very similar to, and its exposition will serve in a very large measure to explain, the law governing commerce with foreign nations, with the Indian Tribes, with or between the Territories, and with the District of Columbia. In so far as there are differences these will be stated in the special paragraphs devoted to these classes of commerce. By Clause 3 of § 8 of Article I of the Constitution, known as the Commerce Clause, Congress is given power to “regulate commerce with foreign nations and among the several States, and with the Indian Tribes.” The full importance of the grant of authority contained in this clause did not appear for many years after the adoption of the Constitution. Not until 1824 by the de- cision of the Supreme Court in Gibbons v. Ogden! was a clear indication given of the extent of the power granted, and not until the Constitution was nearly a hundred years old did Congress begin the exercise of the authority granted it to regulate, affirmatively, commerce between the States. Commerce defined: transportation essential Commerce has frequently been defined by the courts as 19 Wh. 1; 6 L. ed. 28. 231 232 PRINCIPLES OF THE CONSTITUTIONAL intercourse. But not all intercourse is commerce. To render intercourse commerce there must be present the element of transportation, whether of persons or things. “Transportation is essential to commerce, or rather is commerce itself.’”? The commodities transported may be tangible and pon- derable, or intangible and imponderable, as, for example, telegraphic or telephonic messages.* The instrumentalities of commerce “The powers .. . granted by [the commerce clause] are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitu- tion was adopted, but they keep pace with the progress of the country, and adapt themselves to the new develop- ments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing vessel to the steamboat, from the coach and the steam- boat to the railroad, and from the railroad to the tele- graph, as the new agencies are successively brought into use to meet the demands of increasing population and wealth.’4 The doctrine thus laid down in the Pensacola Case has never been questioned. Telephonic messages are, of course, covered by it. No case involving the transmission of wireless messages has arisen, but without doubt they 2 Railway Co. v. Husen, 95 U. 8. 465; 24 L. ed. 527. Whether or not the going of persons across State lines, whether on foot or in vehicle, is commerce, no element of trade or barter being involved, can be said to be interstate commerce is doubtful. This undoubtedly would be intercourse, the freedom of which might not be restrained by the States, but, to the author it would not be commerce. But see House Rpt. No. 2270, parts 1 and 2, 61st Cong., 3d Sess. 3 Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; 24 L. ed. 708; Leloup v. Mobile, 127 U. 8. 640; 8 Sup. Ct. Rep. 1383; 32 L. ed. 311. 4 Pensacola Tel. Co. v. W. U. Tel. Co., 96 U.S. 1; 24 L. ed. 708. Law oF THE UNITED STATES 233 would be treated as commerce, and the same would be true of messages and persons carried by balloons and other apparatus for the navigation of the air. Commerce embraces water navigation Commerce includes navigation of the water, and where this navigation is for the transportation of persons or goods to or from foreign countries or among the States, it is brought within the authority given to the Federal Government by the commerce clause. This was estab- lished once for all in Gibbons v. Ogden.® Transportation of persons is commerce That the transportation of persons is commerce was at first denied by Justice Barbour in the opinion which he rendered in New York v. Miln,® but this doctrine was at once overruled and has not since been questioned. Bills of exchange not articles of commerce In Nathan v. Louisiana’ the court laid down the doctrine that the buying and selling of foreign bills of exchange, while an aid to, and an incident of, commerce, is not it- self commerce. ‘‘The individual,” say the court, “who uses his money and ‘credit in buying and selling bills of exchange, and who thereby realizes a profit . . . is not engaged in commerce, but in supplying an instrument of commerce. He is less connected with it than the ship builder, without whose labor foreign commerce could not be carried on.”’ And also: “A bill of exchange is neither an export nor an import. It is not transmitted through the ordinary channels of commerce, but through the mail.” 59 Wh. 1; 6 L. ed. 23. 611 Pet. 102; 9 L. ed. 648. 78 How. 73; 12 L. ed. 992. 234 PRINCIPLES OF THE CONSTITUTIONAL Insurance not commerce The writing, selling and transmission of insurance pol- icies has been held not to be commerce. That the business of fire insurance is not commerce was decided in Paul v. Virginia.’ That the business of marine insurance is not commerce was held in Hooper v. California.® In New York Life Insurance Co. v. Craven™ these cases are cited with approval and applied to life insurance, the court saying: ‘‘ We repeat, the business of insurance is not commerce. The contract of insurance is not: an instru- mentality of commerce. The making of such a contract is a mere incident of commercial intercourse, and in this respect there is no difference whatever between insurance against fire and insurance against the perils of the sea. And we add, or against the uncertainty of man’s mortal- ity.” In Hopper v. California the court emphasize the dis- tinction between interstate commerce or an instrumental- ity thereof, and the mere incidents, of which insurance is one, which may attend the carrying on of such commerce. “This distinction,” the court declare, “has always been carefully observed, and is clearly defined by the authorities cited. If the power to regulate interstate commerce ap- plied to all the incidents to which said commerce might give rise and to all contracts which might be made in the course of its transaction, that power would embrace the * entire sphere of mercantile activity in any way connected with the trade between the States; and would exclude State control over many contracts purely domestic in their nature.” 88 Wall. 168; 19 L. ed. 357. 9155 U.S. 648; 15 Sup. Ct. Rep. 207; 39 L. ed. 297. 10178 U. 8. 389; 20 Sup. Ct. Rep. 962; 44 L. ed. 1116. Law OF THE UNITED STaTEs 235 Lotteries By act of March 2, 1893, entitled ‘‘An Act for the sup- pression of lottery traffic through national and interstate commerce and the postal service, subject to the jurisdiction and laws of the United States,” the carriage of lottery tickets from one State to another, whether by mail, or by freight or express was absolutely prohibited. After having been three times argued before the Su- preme Court the Lottery Law was upheld in Champion v. Ames,” four justices dissenting. Bearing of the lottery decision on insurance The holding by the court that lottery tickets are articles of commerce and may become articles of interstate com- merce, has undoubtedly increased the possibility that, should a Federal law be enacted in regulation of insur- ance companies doing business in more than one State, it will be sustained by the Supreme Court. Certainly there are very great points of similarity between an insurance policy and a lottery ticket. Like the insurance policy, the lottery ticket is a promise to pay upon the happening of a certain contingency. Lottery tickets, to be sure, freely pass from hand to hand by sale or exchange, but, though not so readily, insurance policies are also at times sold and exchanged. Furthermore, should the consti- tutionality of a Federal law in regulation of insurance be involved, it would receive the benefit of every rational doubt. International Text Book Co. v. Pigg The definition of interstate commerce is still further widened in the case of the International Text Book Co. 1198 Stat. at L. 963. 12 188 U. S. 321; 23 Sup. Ct. Rep. 321; 47 L. ed. 492. 236 PRINCIPLES OF THE CONSTITUTIONAL v. Pigg.!® In that case it was held that the carrying on by a corporation of instruction of students in other States by correspondence, the solicitation of students in other States by local agents, and the collection and trans- mitting of fees to the home office, is a carrying on of inter- state commerce. Commerce does not include the production of the commodi- ties transported In a series of most important decisions it has been héld that commerce does not begin until the goods intended for purchase, sale or exchange in another State have begun their trip thither. That is to say, they must at least have been placed in the hands of the agents who are to transport them. The mere fact that goods are manufactured to be transported and sold in another or other States, or that they have been segregated in the places where produced, for that purpose, is not sufficient to make them articles of interstate commerce. In some way they must have advanced some distance upon their way outside of the State of production. It is clear, therefore, that the whole process of manufacture or production is definitely excluded from the operation of the commerce clause. ‘Commerce succeeds to manufacture, and is not a part of it.’’4 Intent to export not controlling The fact that goods are manufactured for export does not render their manufacture an element in the interstate or foreign commercial transaction. This principle is clearly laid down in Coe v. Errol.’ In this case the court held that certain logs cut in New Hampshire and hauled 13217 U.S. 91; 30 Sup. Ct. Rep. 431; 54 L. ed. 678. 14 United States v. E. C. Knight Co., 156 U. 8. 1; 15 Sup. Ct. Rep. 249; 39 L. ed. 325. . 15116 U.S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715. Law or THE UNITED STatTEs 237 to a river town for transportation to the State of Maine but not yet actually started upon their final way to that State, had not become articles of interstate commerce. The court say: ‘There must be a point of time when they cease to be governed exclusively by the domestic law and begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they com- mence their final movement from the State of their origin, to that of their destination.”’ Interstate commerce includes the sale of the articles im- ported It has been seen that interstate commerce does not begin until, by some definite act, the goods have started upon their trip outside the State of origin. As to the termina- — tion of interstate transportation it has been established that this does not occur until the goods transported have reached their destination, been delivered, and, either sold or taken out of their original packages in which shipped, and thus commingled with the other goods of the State. The right to import, including the right of the importer to sell the goods imported, and the right to engage in inter- state and foreign commerce being a Federal right, the States have no more constitutional power to restrain or regulate the sale of imported commodities by the importer than they have to prevent or regulate their being brought within the State. , The fact that the right to engage in commerce carries with it the right to sell the goods transported, does not, it has been held, exclude the right of the State to tax goods 16 Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678; Leisy v. Hardin, 135 U.S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128. As to the inability of a State to prevent commodities from being taken out the State see West v. Kansas Natural Gas Co., 221 U.S. 229; 31 Sup. Ct. Rep. 564; 55 L. ed. 716, 238 PRINCIPLES OF THE CONSTITUTIONAL brought from another State still unsold, and still in their original packages, provided such goods be not discrimi- nated against because of their having been brought into the State from another State. As to imports from foreign countries, however, the rule is that until sale in the original package, or until the breaking of the package, no State tax may be imposed. This prohibition is, however, not drawn from the commerce clause but from the express provision of the Constitution that ‘‘No State shall, with- out the consent of Congress, lay any impost or duty on imports or exports.”””” The original package doctrine From the foregoing sections it has appeared that the State’s authority over articles brought in from the other States does not attach, except for purposes of taxation, until the articles so brought in have been sold. It will also have appeared, however, from the quotations which have been made, that this rule is modified by the doctrine that, whether sold or not, the articles brought in lose their interstate commercial character, and full State authority at once attaches, as soon as these articles have in any way become mixed with the general mass of property of the State to which they have been transported. As a con- venient test for determining when this commingling takes place, the Supreme Court early developed the so-called “Original Package” doctrine. This doctrine is that so long as the commodity is kept in the unbroken package in which it was delivered to the carrier for transportation, no commingling with the State goods has taken place. At times this has been stated by the courts and by com- mentators as an absolute rule. In fact, however, the doc- trine does not state a right to which the exporter is entitled, 7 Art. I, § 10, cl. 1. Law oF THE UNITED STATES 239 but is a test which the court frequently finds convenient to apply for determining when commingling of the imports with State goods has taken place, but which in other cases may be held inapplicable because of the character of the goods transported.'8 Exclusiveness of Federal control over interstate commerce The Federal authority over interstate commerce is not in terms made exclusive, and the courts have at times varied their views as to the extent to which an exclusive- ness is to be deemed implied. From the beginning the States acted upon the assumption that they were not de- prived of power to grant to persons and corporations ex- clusive privileges with reference to the carrying on upon land of commerce between themselves and other States; and this practice was acquiesced in by the Federal Govern- ment. As to the carrying on of interstate commerce by water, however, it seems to have been more generally held that the Federal jurisdiction was exclusive. This, however, was not judicially determined until the decision of the great case of Gibbons v. Ogden.” Gibbons v. Ogden In this case it was held that the grant by the State of New York to an individual of an exclusive right to navigate 18 The doctrine was first stated in Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678, and reaffirmed in Leisy v. Hardin, 135 U. 8. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128, with reference to the importa- tion of intoxicating liquors; and in Schollenberger v. Pennsylvania, 171 U. S. 1; 18 Sup. Ct. Rep. 757; 48 L. ed. 49. For instances in which the court found it difficult to apply the doctrine see May »v. New Orleans, 178 U. 8. 496; 20 Sup. Ct. Rep. 976; 44 L. ed. 1165; Austin v. Tennessee, 179 U. S. 343; 21 Sup. Ct. Rep. 132; 45 L. ed. 224; Cook v. Marshall, 196 U. S. 261; 25 Sup. Ct. Rep. 233; 49 L. ed. 471. 199 Wh. 1; 6 L. ed. 23. 240 PRINCIPLES OF THE CONSTITUTIONAL its waters with steam vessels had no constitutional validity in so far as interstate or foreign commerce was affected. In support of this judgment, Marshall, in his opinion, laid down in general terms the doctrine that by the commerce clause, the Federal Government is granted an exclusive control of commerce between the States, and with foreign countries, and that, therefore, it is beyond the constitu- tional power of the States to grant, or to withhold, inter- state or foreign commercial privileges. A review of the cases which followed Gibbons v. Ogden will show, however, that the doctrine of the Supreme Court as to the exclusiveness of Federal authority over commerce has not been a uniform one. Without abandoning the doctrine that the States are constitutionally disqualified from directly interfering with the regulation of commerce, the Supreme Court has at times upheld State acts which have in fact amounted to substantial interferences with in- terstate and foreign commerce. And indeed, the language of the court, and even of Marshall himself, in certain cases, has implied the adoption of the doctrine that the constitu- tionality of a State law in regulation of, or interfering with, the freedom of interstate and foreign commerce is to be tested rather by the existence of a conflicting Federal statute, than by the exclusiveness of the Federal juris- | diction.” In Cooley v. Port Wardens,”! decided in 1851, the Su- preme Court, three justices dissenting, accepted the princi- ple that had been suggested by Webster and approved by Justice Woodbury, and upheld a pilotage law of Pennsyl- vania on the ground that, though it was a regulation of 20 See Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678; Wilson ». Blackbird Creek Co., 2 Pet. 245; 7 L. ed. 412; New York v. Miln, 11 Pet. 102, 9 L. ed. 648; License Cases, 5 How. 504; 12 L. ed. 256; Passenger Cases, 7 How. 283, 12 L. ed. 702. 2112 How. 299; 13 L. ed. 996. Law or THE UNITED STATES 241 commerce, it was with reference to a matter properly | lending itself to local State control, and one for the regu- | lation of which Congress had not legislated. Justice ' Curtis, delivering the opinion of the court, said: ‘‘When the nature of a power like this [the commerce power] is spoken of, when it is said that the nature of the power re- quires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say that they are of such a nature as to require ex- clusive legislation by Congress.” The doctrine of Cooley v. Port Wardens is, at the present time, the accepted doctrine of the Supreme Court. In Bowman v. R. R. Co.”? the doctrine is declared to be firmly established. The rule thus stated as to the distinction between sub- | jects requiring general and those necessitating, or at least | rendering highly desirable, local regulation, is a simple | and rational one. It is, however, one, which in application | has not infrequently given rise to considerable difficulty, there being no definite criteria for distinguishing between these.two classes of subjects. This has made it necessary that each case should be determined by itself, the Supreme Court in each instance deciding whether the State law in question is, or is not, regulative of a matter properly requiring national control. Among the more important subjects which, it has been held, may, in the absence of Federal legislation, be con- trolled by the States, because they lend themselves to local regulation, are ferries, bridges, pilotage and harbor regulations.”* 22 125 U.S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700. 22In Covington Bridge Co. v. Kentucky, 154 U. S. 204; 14 Sup. Ct. Rep. 1087; 38 L. ed. 962, the cases are reviewed and sum- marized. 16 242 PRINCIPLES OF THE CONSTITUTIONAL The police powers of the States and commerce Very closely related to the authority of the States to legislate with reference to commercial matters of a local character, is the power of the States, in the exercise of their police powers to enact and enforce measures which incidentally, but often substantially, affect interstate commerce. The distinction which is drawn between these police powers of the States, and their authority to enforce local commercial regulations is that, in the absence of counter- vailing Federal legislation, the latter are valid even though conceded to bear directly upon interstate or foreign com- merce; whereas the police regulations are only valid when their influence upon interstate or foreign commerce is an incidental, indirect one. In other words, as to matters of local concern, the States are recognized to have a con- current power in the fields of interstate and foreign com- merce; while as to police measures (and the same is true as to tax laws or other State laws for the regulation of domestic commerce) the States have an authority which is not concurrent with that of the United States, but which is, when kept within its proper sphere, exclusive of Federal control. Thus, local regulations, even though they oper- ate directly upon interstate and foreign commerce, are valid unless and until there is Federal legislation concernin the same subject. Tax laws, laws for the regulation of domestic commerce and police regulations, upon the other hand, have no constitutional validity whatever if they operate directly and primarily as a restraint upon inter- state or foreign commerce as such. To the writer it would seem that the foregoing dis- tinction between the concurrent local legislative powers and the police powers of the States with reference to inter- state and foreign commerce is an unnecessary and con- fusing one, for the fact is to be noted that all the local ee Law or THE Unrrep StTaTsEs 243 regulations which have been referred to in the preceding section may properly be described as police regulations and justified as such. If, and when, so justified, it will be possible for the courts, without changing substantially the effect of its holdings, to accept finally and completely the doctrine of the exclusiveness of Federal authority over interstate and foreign commerce, and base the validity: of local State commercial regulations not upon a State, con- current legislative power as to local matters, but upon the States’ police or other reserved powers. However, the courts still recognize the distinction between the two sour- ces of State power to affect interstate commerce by their legislation, and this distinction is, therefore, here recog- nized. That a State law which, in its essential nature, is a legiti- mate exercise of the police powers is not rendered invalid by reason of the fact that interstate commerce is thereby incidentally affected is well established.?4 This interference with interstate and foreign commerce, it is to be emphasized, is permitted only when the neces- sities and the convenience of the public seem to demand it and when the regulation provided for is a reasonable and just one. In other words, the States may not, under the guise of an exercise of their police powers, attempt what in effect amounts to a direct regulation of interstate and foreign commerce, or impose an unnecessary or arbitrary burden upon interstate carriers. As will later appear the same principle applies to the exercise of the other powers of the States, as for example, the power to tax, or to regu- late domestic commerce. In the exercise of these powers it is often the case that interstate and foreign commerce 24 Hennington v. Georgia, 163 U. S. 299; 16 Sup. Ct. Rep. 1086; 41 L. ed. 166; L. S. & M.S. Ry. Co. v. Ohio, 173 U. 8. 285; 19 Sup. Ct. Rep. 465; 43 L. ed. 702; Houston v. Mayes, 201 U. S. 321; 26 Sup. Ct. Rep. 491; 50 L. ed. 772. 244. PRINCIPLES OF THE CONSTITUTIONAL are indirectly and even substantially affected. But in no. case may regulation of interstate and foreign commerce be the direct or primary aim of the State’s action. If this is the aim or effect, no support for the validity of the law may be obtained by calling the law a police regulation.” It is thus evident that the Federal court will examine a State police regulation not only with reference to the fact whether or not it amounts to a direct regulation of inter- state commerce, but whether its provisions are in them- selves sufficiently reasonable, practicable and just, as to furnish an excuse and justification for the incidental inter- ference with interstate commerce which their enforcement will necessitate. Finally, with reference to the police powers of the States and interstate commerce, it is to be observed that however incidental their effect upon interstate commerce they have, of course, no validity in so far as they conflict with existing Federal statutes. In Houston v. Mayes” the court say: “Of course such [police] rules are inoperative if conflicting with regulations upon the same subject enacted by Con- gress.” State regulation of interstate trains The general principles governing the exercise of police powers by the States in their relation to interstate com- merce have been stated. It remains but to enumerate certain of the applications which, in specific instances, these doctrines have received. A series of cases have been decided by the Supreme Court with reference to the validity of State laws seeking to control the manner of running and operating trains. When the provisions of these laws have been found reason- ably necessary for the protection and convenience of the 25 Henderson v. Mayor, 92 U. S. 259; 23 L. ed. 543. 6 201 U.S. 321; 26 Sup. Ct. Rep. 491; 50 L. ed. 772. Law or THE UNITED States 245 people, and not discriminative against interstate trains, they have been upheld in their application to such inter- state trains. Thus State laws have been sustained which have forbidden the running of freight trains on Sunday; forbidding heating cars by stoves; requiring trains to stop at county seats; and other populous centers; requiring locomotive engineers to be examined and licensed by the State authorities; requiring such engineers to be examined em time to time with respect to their ability to distin- guish colors; requiring telegraph companies to receive dispatches and to transmit and to deliver them with due diligence, as applied to messages from outside the State; requiring railway companies to fix their rates annually for the transportation of passengers and freight, and also requiring them to post a printed copy of such rates at all their stations; forbidding the consolidation of parallel or competing lines of railway; regulating the heating of pas- senger cars, and directing guards and guard posts to be placed on railroad bridges and trestles and the approaches thereto; providing that no contract shall exempt any rail- road corporations from the liability of a common carrier or a carrier of passengers, which would have existed if no contract had been made; and declaring that when a com- mon carrier accepts for transportation anything directed to a point of destination beyond the terminus of his own line or route, he shall be deemed thereby to assume an obli- gation for its safe carriage to such point of destination; unless, at the time of such acceptance, such carrier be re- leased or exempted from such liability by contract in writing signed by the owner or his agent.” From the foregoing it will appear that some of the State police regulations which have been sustained in their 27 This summary is substantially taken from that given by the court in Mo. Pacific Ry. Co. v. Larabee Flour Mills Co., 211 U. 8. 612; 29 Sup. Ct. Rep. 214; 53 L. ed. 352. 246 PRINCIPLES OF THE CONSTITUTIONAL application to interstate traffic have had for their aim not the health, morals and safety of the people of the States enacting them, but simple public convenience. In Lake Shore, etc., Ry. Co. v. Ohio,” in which prior decisions upon this point are carefully considered, the court say: ‘‘The power of the State, by appropriate legislation, to provide for the public convenience, stands upon the same ground precisely as its power by appropriate legislation to pro- tect the public health, the public morals, or the pubis safety. Whether legislation of either kind is inconsistent with any power granted to the General Government is to be determined by the same rules.” But in Illinois Central Ry. Co. v. Illinois” a State law was held void as unnecessarily restraining interstate com- merce which required trains to run out of their regular routes in order to make certain specified stops. So also in Mississippi Railroad Com. v. Illinois Central Ry. Co.” was held void an order of a State railroad commission re- quiring a railroad company to stop its interstate trains at a specified county seat, when proper and adequate pas- senger facilities were already otherwise provided. In this case the fact that the interstate trains were carrying the mails is given as one of the reasons why they should not be delayed except for substantial reasons. State inspection laws. State inspection laws in their application to interstate 173 U.S. 285; 19 Sup. Ct. Rep. 465; 43 L. ed. 702. 9 163 U.S. 142; 16 Sup. Ct. Rep. 1096; 41 L. ed. 107. 8° 203 U. S. 335; 27 Sup. Ct. Rep. 90; 51 L. ed. 209. See, also Atlantic Coast Line Ry. Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. Rep. 121; 52 L. ed. 230; McNeill v. Southern Ry. Co., 202 U. S. 543; 26 Sup. Ct. Rep. 722; 50 L. ed. 1142; L. & N. Ry. Co. v. Central Stock Yards Co., 212 U.S. 182; 29 Sup. Ct. Rep. 246; 53 L. ed. 441; W. U. Tel. Co. v. James, 162 U. S. 650; 16 Sup. Ct. Rep. 934; 40 L. ed. 1105. Law or THE Unitep States 247 commerce are sustained in so far as they are reasonable regulations in behalf of the health, safety and morality of the inhabitants of the States enacting them, or for their protection against fraud, and do not conflict with existing Federal statutes.*! It will later be seen that when Congress has specifically or inferentially recognized a commodity as a legitimate article of interstate commerce, it may not be excluded by a State from its borders whether by an inspection or other police regulation. And even as to all other articles with reference to which there has been no Federal pronounce- ment, the requirements of a State inspection law must be reasonable in their provisions.*? Wild game within a State is not, until reduced to possession, private property, but belongs to the State, which is conceded to have a police power to regulate the 31 In Gibbons v. Ogden, 9 Wh. 1; 6 L. ed. 23, Marshall says: ‘The object of inspection laws is to improve the quality of articles pro- duced by the labor of a country; to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce between ‘the States, and prepare it for that purpose.” 32 For cases illustrating the State’s inspection powers, see Turner v. Maryland, 107 U. 8. 38; 2 Sup. Ct. Rep. 44; 27 L. ed. 370; People v. Compagnie Générale Transatlantique, 107 U. S. 59; 2 Sup. Ct. Rep. 87; 27 L. ed. 383; Minnesota v. Barber, 136 U. 8. 313; 10 Sup. Ct. Rep. 862; 34 L. ed. 455; Scott v. Donald, 165 U.S. 58; 17 Sup. Ct. Rep. 265; 41 L. ed. 632; Patapsco Guano Co. v. Board of Agri- culture, 171 U. 8. 345; 18 Sup. Ct. Rep. 862; 43 L. ed. 191; Asbell v. Kansas, 209 U. S. 251; 28 Sup. Ct. Rep. 485; 52 L. ed. 778. As to the constitutionality of State quarantine laws, see Railroad Co. v. Husen, 95 U. S. 465; 24 L. ed. 527; Rassmussen v. Idaho, 181 U.S. 198; 21 Sup. Ct. Rep. 594; 45 L. ed. 820; Smith v. St. Louis Ry. Co., 181 U. S. 248; 21 Sup. Ct. Rep. 603; 45 L. ed. 847; Reid v. Colorado, 187 U. S. 187; 23 Sup. Ct. Rep. 92; 47 L. ed. 108; Compagnie Fran- caise v. State Board of Health, 186 U. S. 380; 22 Sup. Ct. Rep. 811; 46 L. ed. 1209. 248 PRINCIPLES OF THE CONSTITUTIONAL times and methods by which it may be captured and killed, or when taken, may be sold. In their efforts to protect their game supplies the States have at times enacted game laws the validity of which has been contested as being regulations of interstate commerce.*? The States may absolutely exclude from their borders only such articles as are intrinsically not merchantable or not legitimate articles of commerce In the exercise of their police powers the States may absolutely exclude from their borders only such articles as are in themselves not merchantable or legitimate arti- cles of commerce.*4 This power of exclusion by the States may not be exer- cised by the States with reference to articles as a class, unless as an entire class, they are intrinsically unfit for commerce and not merchantable. In all other cases their unfitness for commerce must be determined by inspection and upon reasonable grounds. In no case may the States exclude from their borders or interfere with the importation of such articles as have directly or impliedly been recognized by Congress as legiti- mate articles of interstate commerce. And, furthermore, it is an established principle that as to articles legitimately the subjects of commerce, the silence of Congress as to them is to be construed as equivalent to a declaration that interstate trade as to them is to be unrestricted.*® These principles have been excellently illustrated with reference to State liquor and oleomargarine laws. 33 Geer v. Connecticut, 161 U. S. 519; 16 Sup. Ct. Rep. 600; 40 L. ed. 793. 34 Bowman v. Chicago & Northwestern Ry. Co., 125 U. 8. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700. 35 Leisy v. Hardin, 135 U.S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128. Law or THE UNITED STATES 249 Liquor legislation In Mugler v. Kansas* certain liquor laws of the State were held not to violate the due process clause of the Four- teenth Amendment. In the License Cases * the constitutionality of the liquor laws of a number of the States was considered with refer- ence to both the Fourteenth Amendment and the commerce clause, and, upon the whole, a considerable power on the part of the States to regulate the sale of imported liquors, recognized. | But in Bowman ». Railroad ® the court explained that it had not in the License Cases pass€d squarely upon the ap- plication of State laws to liquors brought into the States from outside, and, in the case at bar, held invalid, as a regulation of interstate commerce, a law which forbade any common carrier to bring intoxicating liquors within the State from any other States or Territories, without first obtaining a certificate from the proper State officials that the consignees were licensed by the State to sell such liquors. The argument of the court was that the statute in ques- tion was neither an inspection law, nor a police measure confining its direct operation to domestic goods, or to im- ported goods after they had become commingled with, and therefore a part of, the general goods of the State. The Wilson Act The position taken by the Supreme Court in the Bow- man and succeeding cases very seriously crippled the powers of the States to control the sale of intoxicating liquors within their borders. That their efficiency in this respect might be, at least partially, restored to them, Con- 38 123 U. 8. 623; 8 Sup. Ct. Rep. 273; 31 L. ed. 205. 37 5 How. 504; 12 L. ed. 256. 38 125 U.S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700. 250 PRINCIPLES OF THE CONSTITUTIONAL gress, in 1890, passed the so-called Wilson Act,®® which act, still in force provides: ‘‘That all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consump- tion, sale or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory, enacted in the ex- ercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory and shall not be ex- empt therefrom by reason of being introduced therein in original packages or otherwise.” In Re Rahrer “ the Wilson Act was held constitutional.” Oleomargarine cases In Powell v. Pennsylvania *? the court held that a State law which, as a police regulation, laid down certain rules for the manufacture and sale of oleomargarine, was not, as alleged, a violation of the due process of law provision of the Fourteenth Amendment. 39 26 Stat. at L. 313. 4 140 U.S. 545; 11 Sup. Ct. Rep. 865; 35 L. ed. 572. 41 For a series of cases interpreting the Wilson Law, and especially the meaning of the phrase ‘“‘upon arrival in such State,” see Rhodes v. Iowa, 170 U. S. 412; 18 Sup. Ct. Rep. 664; 42 L. ed. 1088; Vance v. Vandercook, 170 U.S. 4388; 18 Sup. Ct. Rep. 674; 42 L. ed. 1100; Adams Express Co. v. Iowa, 196 U.S. 147; 25 Sup. Ct. Rep. 185; 49 L. ed. 424; Pabst Brewing Co. v. Crenshaw, 198 U.S. 17; 25 Sup. Ct. Rep. 552; 49 L. ed. 925; Heymann v. Southern Ry. Co., 203 U. 8. 270; 27 Sup. Ct. Rep. 104; 51 L. ed. 178; Delamater v. S. Dakota, 205 U.S. 93; 27 Sup. Ct. Rep. 447; 51 L. ed. 724; Adams Express Co. ». Kentucky, 206 U. 8. 129; 27 Sup. Ct. Rep. 606; 51 L. ed. 987. See also § 238 of the Act of Congress of March 4, 1909, codifying, re- vising and amending the penal laws of the United States, prohibit- ing all but bona fide C. O. D. interstate shipments of liquor. Also, Senate Rpt. 499, 60th Cong., 1st Sess. 42127 U.S. 678; 8 Sup. Ct. Rep. 992; 32 L. ed. 253. Law oF THE UNITED STATES 251 In Plumley v. Massachusetts * the court again upheld a drastic State law regulating the manufacture and sale of articles simulating butter, as being in violation neither of the Fourteenth Amendment, nor of the Commerce Clause, even when applied to such articles brought from other States. The validity of the law was sustained as a legiti- mate police provision against fraud, the court as to this saying: “It will be observed that the statute of Massachu- setts . . . does not prohibit the manufacture and sale of all oleomargarine, but only such as is colored in imitation of yellow butter produced from pure unadulterated milk or cream of such milk. ... The statute seeks to sup- press false pretences and to promote fair dealing in the sale of an article of food.” In Collins v. New Hampshire“ it was held that a State cannot render an article of interstate commerce unsalable, as for example by compelling artificial butter to be colored pink, any more than it can prevent its importation. In Schollenberger v. Pennsylvania, however, the court, when asked to enforce a State oleomargarine law with reference to the importation and sale in the original pack- age of oleomargarine manufactured in another State, held the law void in so far as its application to interstate and foreign commerce was concerned. Oleomargarine, the court held, had been recognized by the Federal Govern- ment as a proper subject of interstate commerce, and it was, therefore, beyond the competence of the States whether in the exercise of their police powers or other pow- ers, to place restrictions upon its importation or exporta- tion. The court, after a review of earlier cases, say: ‘‘The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly ex- 43 155 U.S. 461; 15 Sup. Ct. Rep. 154; 39 L. ed. 223. 44171 U.S. 30; 18 Sup. Ct. Rep. 768; 43 L. ed. 60. 4171 U.S. 1; 18 Sup. Ct. Rep. 757; 43 L. ed. 49. 252 PRINCIPLES OF THE CONSTITUTIONAL cluded from importation into a State from another State where it was manufactured or grown. A State has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion of an article of food.” The States and foreign corporations doing an interstate commerce business , The right to engage in interstate commerce, it has been often declared, is a Federal right, and is, therefore, inde- pendent of State control. In Vance v. Vandercook,“* the right of the individual to import was declared to be ‘‘de- rived from the Constitution of the United States, and does not rest on the grant of the State law.’ Nor can a State render illegal or in any way restrain the making of contracts by its residents with reference to inter- state commerce.” So, likewise, it is established that a State, though it may refuse admission, or attach such conditions as it sees fit to the entrance of, a foreign corporation within its borders for the purpose of doing business generally within the State, it may not prevent or restrain that corporation, any more than it may prevent or restrain an individual, from en- gaging in interstate commerce within its borders.” 46170 U.S. 488; 18 Sup. Ct. Rep. 674; 42 L. ed. 1100. 47 Delamater v. S. Dakota, 205 U. 8. 93; 27 Sup. Ct. Rep. 447;.51 L. ed. 724. 4 Paul v. Virginia, 8 Wall. 168; 19 L. ed. 357; Crutcher v. Ken- tucky, 141 U.S. 47; 11 Sup. Ct. Rep. 851; 35 L. ed. 649; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U.S. 1; 24 L. ed. 708. It may be said, generally that a State cannot exclude from its borders a corporation in the employ of, or performing services for, the Federal. Govern- ment. Pembina Co. v. Pennsylvania, 125 U.S. 181; 8 Sup. Ct. Rep. 737; 31 L. ed. 650; Postal Tel. Co. v. Adams, 155 U. S. 688; 15 Sup. Ct. Rep. 268; 39 L. ed. 311. Law oF THE UNITED STATES 253 A State, though not able to exclude from its borders a federally chartered corporation engaged in interstate com- merce, is not compelled to aid that corporation by grant- ing to it any special privileges, as, for example, the right of eminent domain. Congress may, however, endow such a corporation with the right of eminent domain, which right it may exercise within the States without their con- sent or against their will. Foreign corporations “ doing business ” within the States Though, as we have seen, a State may not prevent a foreign corporation from carrying on interstate commerce business within its borders, it may prevent it from doing business generally as a corporation within the State; or it may attach such conditions as it sees fit to the doing of such business, other than interstate commerce, as a corporation. But permission to continue to do. an interstate business may not be founded upon conditions which, in effect, in- terfere with interstate business. In Western Union Telegraph Co. v. Kansas” the ex- actions that may be made by a State of a foreign cor- poration doing an interstate commerce business as a pre- requisite to doing a domestic business within a State are carefully considered and prior adjudications éxamined, . and, by a divided court, the doctrine declared that a charter fee of a certain per cent of the entire capital stock might not be exacted of a foreign telegraph company as a condition to being permitted to continue to do an intra- state business within the State. This exaction the major- 4216 U.S. 1; 30 Sup. Ct. Rep. 190; 54 L. ed. 355. The difficulty of harmonizing this case with that of Security Mutual Ins. Co. v. Prewitt, 202 U. S. 246; 26 Sup. Ct. Rep. 619; 50 L. ed. 1013, is re- ferred to, post, p. 429. See also Columbia Law Review, XI, 393, article ‘Constitutional Limitations upon State Taxation of Foreign Corporations.” 254 PRINCIPLES OF THE CONSTITUTIONAL ity of the court declared to be in essence a burden and tax on the company’s interstate business and on its property located and used outside of the State. State taxation and interstate and foreign commerce It has already been shown that the States are permitted, in the exercise of the powers reserved to them, substantially to affect interstate and foreign commerce, so long as this in- terference is an indirect, incidental one, and the legislation in question a legitimate and bona fide exercise of a reserved power, and not in contravention to any existing Fed- eral statute or regulation. This principle holds true with reference to the taxing powers of the States. A direct taxation of interstate or foreign commerce, that is, of the goods carried as exports or imports, of the agencies and instrumentalities of such commerce as such, or of the act of carrying on, or the right to engage in or to carry on, interstate and foreign commerce, is always construed as a regulation of such commerce, and, as such, beyond the powers of the States.*° This doctrine has now for many years been so well established that States no longer attempt to tax inter- state commerce directly. Many State tax laws, however, though not expressly made applicable to interstate com- merce transactions, have so substantially burdened com- merce among the States as to raise the question whether or not they are not thus brought within the operation of the prohibition. It will be necessary, therefore, to consider the special cases in which the constitutionality of State tax laws have been tested by the Commerce Clause. 5 Leloup v. Mobile, 127 U. S. 640; 8 Sup. Ct. Rep. 1383; 32 L. ed. 311. A State may not enforce the collection of a valid tax by an injunction restraining an individual or corporation from doing interstate commercial business. W. U. Tel. Co. v. Massachusetts, 125 U.S. 530; 8 Sup. Ct. Rep. 961; 31 L. ed. 790. Law oF THE UNITED STATES 255 A license tax on an importer, or on the business of im-- porting goods from another State, is a taxation of, and, therefore, an unconstitutional regulation of interstate commerce.*! Where, however, a company is doing both interstate and intrastate commerce business, a license tax may be levied upon the latter if it be separable from the former and if the company be left free, should it desire to do so, to give up its domestic business and continue undisturbed its inter- state transactions. It must clearly appear, however, that the license tax is exclusively upon the local business, and that its payment is not a condition precedent to the transaction of inter- state business. And, furthermore, if the tax, whatever its name, amounts to more than an ordinary tax upon the property of the company doing both an interstate and domestic business, it will be held void.*? Tax laws, or, indeed, any other laws of a State discrim- inating against non-resident traders or against the prod- ucts of other States are void as interfering with inter- state commerce.*? : In Robbins v. Shelby County, was established the doc- trine that the negotiation by sales agents of sales of goods which are in another State for the purpose of introducing them into the State where the negotiation is had, is inter- 51 Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678; Leloup v. Mobile, 127 U.S. 640; 8 Sup. Ct. Rep. 1383; 32 L. ed. 311. 52 Pullman Co. v. Adams, 189 U. S. 420;.23 Sup. Ct. Rep. 494; 47 L. ed. 477; Postal Tel. Cable Co. v. Adams, 155 U. S. 688; 15 Sup. Ct. Rep. 268; 39 L. ed. 311. 53 Ward v. Maryland, 12 Wall. 418; 20 L. ed. 449; Welton v. Missouri, 91 U. 8. 275; 23 L. ed. 347; Guy v. Baltimore, 100 U. S. 434; 25 L. ed. 743; Webber v. Virginia, 103 U. 8. 334; 26 L. ed. 565; Walling v. Michigan, 116 U. S. 446; 6 Sup. Ct. Rep. 454; 29 L. ed. 691; Darnell v. Meraphis, 208 U. 8. 118; 28 Sup. Ct. Rep. 247; 52 L. ed. 413. 256 PRINCIPLES OF THE CONSTITUTIONAL state commerce and not subject to regulation or taxation by the State.** As has been before seen, when property which has been introduced into a State has become commingled with the other property of the State, it ceases to enjoy the protection of the Commerce Clause. And thus it has been held that peddlers, as distinguished from drummers, that is, per- sons who carry with them the articles which they sell, or at least supply the articles sold from stocks of merchandise already in the State, may be required to ‘pay a license fee, even though they deal exclusively in goods that have been imported from another State; provided, however, of course, that they are not discriminated against because of the fact that they sell goods brought in from outside the State. State taxation of articles of commerce Since Brown v. Maryland,® decided in 1827, it has been held that a State law requiring all importers of foreign goods, and others selling the same by wholesale to pay a license fee is repugnant to the Commerce Clause. decided in 1905, added no new principle to the law of interstate commerce. The act of 1890 was held to have been violated by a combination of independent meat dealers in an attempt to monopolize commerce in fresh meat among the States, and to restrict the competi- tion of their respective buyers when purchasing stock for them in the stock yards. It is significant, however, that the court emphasized that the unlawfulness of the general scheme was sufficient to render unlawful the constituent acts, which in themselves and apart from their place in the general scheme, might not have been in violation of the Anti-Trust Act. “The plan may make the parts unlaw- ful.” In Loewe v. Lawler” the court took a very advanced ground as to what will be construed to be an interference 6 196 U.S. 375; 25 Sup. Ct. Rep. 276; 49 L. ed. 518. 7 208 U. 8. 274; 28 Sup. Ct. Rep. 301; 52 L. ed, 488, Law or THE Unrrep StTaTes 285 with interstate commerce. In this case the act of 1890 was held to have been violated by a combination of mem- bers of a labor organization, in the nature of a boycott, to prevent the manufacture of hats intended for trans- portation beyond the State, and to prevent their vendees in other States from reselling the hats, and from further negotiating with the manufacturers for further purchases. In order to bring this combination within the terms of the Federal statute the court again emphasized that where the general purpose and effect of the plan is to restrain inter- state trade, the separate acts, though in themselves acts within a State and beyond Federal cognizance, become illegal as tested by the Federal law.” In the Standard Oil and American Tobacco Co. cases,” there was almost no further discussion by the court of 28 For other cases construing the act of 1890, see Shawnee Com- press Co. v. Anderson, 209 U. 8. 423; 28 Sup. Ct. Rep. 572; 52 L. ed. 865; Connolly v. Union Sewer Pipe Co., 184 U. 8. 540; 22 Sup. Ct. Rep. 431; 46 L. ed. 679; Continental Wall Paper Co. v. Voight, 212 U.S. 515; 29 Sup. Ct. Rep. 280; 53 L. ed. 486; American Banana Co. v. United Fruit Co., 213 U. 8. 347; 29 Sup. Ct. Rep. 511; 53 L. ed. 826. As to the constitutionality of the ‘Elkins Act” of 1907 (32 Stat. at L. 847), prohibiting rebates, see N. Y. Central & H. R. Ry. Co. v. United States, 212 U.S. 481; 29 Sup. Ct. Rep. 304, 53 L. ed. 613. As to the constitutionality of the ‘Carmack Amendment” of June 29, 1906, to the act of 1887, imposing upon an interstate carrier liability to the holder of a bill of lading for loss or injury to freight occurring anywhere en route, with right of recovery against’ the connecting carrier actually causing the loss or injury, see Atlantic Coast Line R. R. v. Riverside Mills, 219 U. 8. 186; 31 Sup. Ct. Rep. 164; 55 L. ed. 167. For an excellent account of the Commerce Court established by the act of June, 1910, see the article by J. W. Bryan, “The Railroad Bill and the Court of Commerce” in the American Political Science Review, Nov., 1910. 29 Standard Oil Co. v. United States, 221 U. S. 1; 31 Sup. Ct. Rep. 502, decided May 22, 1911; United States v. American Tobacco Co., 221 U. S. 106, 31 Sup. Ct. Rep. 632, decided May 29, 1911. 286 PRINCIPLES OF THE CONSTITUTIONAL the question whether the acts complained of constituted an interference with interstate commerce. That there was such an interference was assumed to be beyond serious dispute. With reference to the Knight case the court simply say: ‘The view . . . . which the argument takes of that case, and the arguments based upon that view, have been so repeatedly pressed upon this court in con- nection with the interpretation and enforcement of the anti-trust act, and have been as necessarily, and expressly decided to be unsound, as to cause the contentions to be plainly foreclosed and to require no express notice” (cit- ing cases). The chief significance, then, of these cases, aside from this summary disposal of the Knight case, is one of statutory construction, that is, of the Anti-Trust Act of 1890. In effect the court, in these two cases, held that though the act is still to be interpreted as forbidding every contract or combination in restraint of trade be- tween the States, not every agreement between competit- ors which affects interstate trade, and, in a measure, checks competition in that trade, is in restraint of inter- state trade, but only those agreements or acts are to be so construed which unduly or unreasonably affect interstate trade; and that any direct attempt to monopolize such trade, or to obtain the power arbitrarily to control prices or competition therein, is such an undue interference and therefore within the prohibition of the act. What shall be held to constitute a restraint of interstate commerce it is declared, is to be determined by the intent of the law as revealed by a study of legal and economic conditions preceding and attending the enactment of the Act in 1890. The Federal control of corporations under the commerce clause The Federal Government has the undoubted power it- self to own and operate, or to incorporate companies for Law or THE UNITED States 287 the construction and operation of roads, bridges, and other instrumentalities of interstate commerce.*® This author- ity is derived not only from the Commerce Clause but from the authority of the Federal Government to estab- lish post-offices and post-roads, and from its military powers. And, incidental to the exercise of these powers, the right of eminent domain may be exercised by the Federal Government or by corporations chartered by it, within the States and Territories.3+ In Wilson v. Shaw®? the authority. of the United States to construct the interoceanic canal across the territory ceded by the Republic of Panama, is declared. It has been argued that the Federal Government has the constitutional power to charter companies not only to do an interstate carrier or exporting business, but, as incidental thereto, to manufacture and produce the goods which they export or transport. Some support for the doctrine has been claimed from the cases in which it has been held that the National Banks, chartered primarily to serve a Federal function, may also be authorized, as inci- dental thereto, to do a general banking business within the States. But it is by no means sure that these bank cases will be held to furnish this support. In the case of the Na- tional Banks it will be remembered that it was held that it was not practicable for them to exist as banks and to per- form the Federal functions which they were created to perform, unless, at the same time, they are permitted to do a general banking business. As to interstate carrier or exporting companies, however, it would seem that there % Calif. v. Central Pacific Ry. Co., 127 U. 8. 1; 8 Sup. Ct. Rep. 1073; 32 L. ed. 150; Monongahela Navigation Co. v. United States, 148 UV. S. 312; 13 Sup. Ct. Rep. 622; 37 L. ed. 463; Luxton v. North River Bridge Co., 153 U.S. 525; 14 Sup. Ct. Rep. 891; 38 L. ed. 808, 31 Kohl v. United States, 91 U.S. 367; 23 L. ed. 449. a U.S. 24; 27 Sup. Ct. Rep. 233; 51 L. ed. 351, 288 PRINCIPLES OF THE CONSTITUTIONAL is not the same necessity that they should be permitted to carry on a manufacturing business. Indeed, by the Federal Hepburn Act of 1906, interstate railways are ex- pressly forbidden to have a direct or indirect interest in the commodities which they transport. It would seem, however, that federally incorporated interstate carrier companies may be authorized to carry on also an intrastate carrier business. Here the connec- tion between the two would seem to be as close as that between the general banking business and the purely Federal functions of the National Banks. The denial to Congress of the power to charter compan- ies empowered to do a manufacturing business within the States does not necessarily carry with it the denial of a power to require of individuals or of state-chartered com- panies a Federal permission to engage in interstate com- merce whether as carriers or as shippers of goods across State borders. Certainly this is so if the right to engage in interstate commerce or to make use of interstate com- mercial instrumentalities be held to be a Federal right. The lottery case of Champion v. Ames * has illustrated the extent of this Federal power to exclude commodities from interstate trade. Applying the doctrines of this case it may be held that while Congress may not be able to charter manufacturing companies, which the States may not ex- clude from their borders, it may refuse to individuals or State-chartered companies the right to ship their products across State lines, except upon certain conditions, which conditions may be so stated as to bring the companies and the individuals, so far as they make use of interstate com- merce agencies, within a rigorous Federal control.*4 33 188 U.S. 321; 23 Sup. Ct. Rep. 321; 47 L. ed. 492. 34 Cf. Veazie Bank v. Fenno, 8 Wall. 533; 19 L. ed. 482; United States v. Marigold, 9 How. 560; 13 L. ed. 257; United States v. Joint Traffic Assn., 171 U.S, 505; 19 Sup. Ct. Rep. 25; 43 L. ed. ane. > \ Law oF THE Unrrep States 289 Federal taxing power and interstate commerce A Federal tax may be laid upon interstate commerce, its instrumentalities, the articles carried, or the privilege of engaging in it, either as a revenue measure or as a means of regulation. If the tax should be laid for a regulative purpose, its constitutionality would be dependent wholly upon the Commerce Clause, and, not being, except in form, a tax, would not be subject to the express limitations as to apportionment, etc., imposed by the Constitution upon the taxing power of the United States.* A genuine tax imposed for revenue purposes, if assessed upon the commodities of interstate commerce or upon the instrumentalities of commerce as property, would be a direct tax and would have to be apportioned among the States according to their respective populations. That this is so sufficiently appears from the doctrines of Pollock v. Farmers’ L. & T. Co.*® If the tax should be one upon the privilege of engaging in, or carrying on interstate commerce, it would in all probability be construed to be constitutionally an indirect tax.?7 A more doubtful point, however, is whether such an excise tax upon the right to engage in interstate commerce would not come within the constitutional provision that “no tax or duty shall be laid on articles exported from any State.” That it would be held to be a tax on exports from a State would seem to follow from the reasoning of the court in Brown v. Maryland;® but, if the doctrine of 35 Veazie Bank v. Fenno, 8 Wall. 533; 19 L. ed. 482. % 158 U.S. 601; 15 Sup. Ct. Rep. 912; 39 L. ed. 1108. 37 The cases that would probably be held controlling as to this, are, Nicol v. Ames, 173 U. 8S. 509; 19 Sup. Ct. Rep. 522; 43 L. ed. 786; Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397; 24 Sup. Ct. Rep. 376; 48 L. ed. 496; Flint v. Stone Tracy Co., 220 U. 8. 107; 31 Sup. Ct. Rep. 342; 55 L. ed. 389. 3812 Wh. 419; 6 L, ed, 678. 19 290 PRINCIPLES OF THE CONSTITUTIONAL Woodruff v. Parham* be followed, it will be held that the prohibition of the Constitution applied only to exports from a State to foreign countries. Federal control of navigable waters In a later chapter will be considered the Federal powers, both judicial and legislative, which flow from the provision of § 2, Art. III of the Constitution, which provides that the Federal Judicial power shall extend ‘‘to all cases of ad- miralty and maritime jurisdiction.” It will there appear that, under this grant of authority, the National Govern- ment has been construed to have a general authority over all acts directly connected with or occurring upon the navigable waters of the United States. These navigable waters have been construed to be all waters, whether tidal or not, and whether located wholly within a single State or not, which are navigable in fact, or are susceptible of being so used, as highways over which trade and travel may be conducted. Navigability has thus been accepted as the test of Federal admiralty jurisdiction. It is thus apparent that the Federal authority thus obtained is a more comprehensive one than that derived from the Com- merce Clause. Congress has by various acts established regulations governing the use of the ‘‘navigable waters of the United States,” which have been defined to be, as distinguished from the navigable waters of the States (concerning which Congress has not seen fit to legislate), those waters which “form in their ordinary condition, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is con- ducted by water.” 398 Wall. 123; 19 L. ed. 382. 40 The Daniel Ball, 10 Wall. 557; 19 L. ed. 999. Law or THe Unirep States 291 s In the absence of conflicting congressional legislation, the States are left free to regulate transportation upon the nav- igable waters within their respective borders. In all cases Congress has, of course, the authority to supersede the reg- ulations of the States which are considered to operate as an obstruction to navigation. Federal control of foreign commerce The same clause which gives to Congress the power to regulate commerce among the States extends the power to commerce with foreign nations. It has been declared that “the power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.” * This is true, and yet the control which the United States may exercise over foreign commerce is broader than that which it may exercise over interstate commerce for the reason that it is able to draw additional powers from Con- stitutional sources other than the Commerce Clause. Thus especially from the exclusive and plenary authority over foreign relations granted to it, the Federal Government is able to control the admission of aliens, to provide for their deportation, to grant special commercial privileges by treaty, and to lay a total or partial embargo upon foreign commerce. In Buttfield v. Stranahan *? the court also sug- gest the possibility that the Federal authority over inter- state commerce may be, in certain directions, limited by the reserved rights of the States, which limitations would not apply to foreign commerce. By Clause 6 of § 9 of the Constitution the limitation is laid upon the power granted in the Commerce Clause that “no preference shall be given by any regulation of com- 41 Brown v. Houston, 114 U. 8. 622; 5 Sup. Ct. Rep. 1091; 29 L. ed. 257. #192 U. S. 470; 24 Sup. Ct. Rep. 349; 48 L. ed. 525. 292 PRINCIPLES OF THE CONSTITUTIONAL merce 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.” This clause has received little judicial construction. One of the few cases in which the meaning of the clause has been considered is Pennsylvania v. W. & B. Bridge Co.,** in which it is declared that ‘‘what is forbidden is not discrimination between individual ports within the same or different States, but discrimination between the States.” Commerce with the Territories and with the District of Columbia The Commerce Clause contains no reference to trade between the States and the Territories or the District of Columbia, or the Territories inter se. In general however, the courts have treated the District of Colum- bia and the territories as “States” within the meaning of the Clause.** Congress having exclusive jurisdiction within and over the District and the Territories, there of course cannot arise, as to them, the objection that Federal regulations extend to matters that are of domestic concern. Commerce with Indians So long as the Indians form distinct communities oc- cupying clearly defined territories, even though those territories be within the borders of the States, intercourse with them is a matter subject to Federal regulation, and this Federal power of regulation extends to the prohibi- tion of sales to Indians within a State and beyond the borders of the Indian Reservation. The Federal control 4318 Wall. 421; 15 L. ed. 435. 44 Stoutenburgh v. Hennick, 129 U.S. 141, 9 Sup. Ct. Rep. 256; 32 L. ed. 637. But see Michigan Law Review, II, 468. Law oF THE UNITED STATES 293 of commerce with the Indians, given by the Commerce Clause, is thus seen to be supplemented by the general jurisdiction of the National Government over Indians as wards of the Nation.* : 45 United States v. Kagama, 118 U. 8S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228; United States v. Holliday, 3 Wall. 407; 18 L. ed. 182. CHAPTER XXXIV OTHER POWERS OF CONGRESS Naturalization Clause 4 of §8 of Art. 1. of the Constitution gives to Congress the power to establish ‘‘an uniform rule of na- turalization.” This power has already been considered in an earlier chapter dealing with citizenship and it is here necessary only to add that the power, though in an early and ill considered case held to be one that may be concurrently exercised by the States, was in Chirac v. Chirac, decided in 1817, declared to be exclusively in Congress and this doctrine has not since been questioned. Bankruptcy: definition of The same clause which gives to Congress the power to establish an uniform rule of naturalization, authorizes that body to “establish uniform laws on the subject of bankruptcies throughout the United States.” The construction which has been given to this clause furnishes one of the few exceptions to the general rule that the technical terms of the Constitution are to be given the meaning which they had at the time the Consti- tution was adopted. In 1789 “bankruptcy” and “in- solvency” had, in the English law, different and distinct meanings. Bankruptcy applied only to merchants or traders charged with having committed some fraudulent or quasi-fraudulent act upon their creditors, who there- 12 Wh. 259; 4 L. ed. 234. 294 Law or tHe Unirep States 295 upon might institute proceedings to have their debtor declared a bankrupt, his property taken and distributed in payment of his debts, and he himself either discharged from further liability therefor, or imprisoned as the court might think fit. Insolvency, upon the other hand, de- scribed the status of a debtor, not a trader, who, in order to obtain a discharge might in certain cases surrender, or offer to surrender, all his property in payment of his debts. In this country, however, from the beginning Congress and the Supreme Court have given to the term ‘“ Bank- ruptcy” a meaning broad enough to cover “Insolvency”’ as well. Indeed the distinction between the two was not generally recognized in the colonies before the separation from England. By various acts Congress has, from time to time, en- acted laws providing for both voluntary and involuntary bankruptcy, that is for proceedings instituted by the debtor himself or in invitum by his creditors. The details of this legislation need not here be given. It is sufficient to say that the first law was enacted in 1800, and repealed in 1808; the second law in 1841 was repealed in 1848; the third in 1867, and after being several times amended, repealed in 1878; the fourth law, now in force, being passed July 1, 1898. In Sturges v. Crowninshield,? affirmed in Ogden v. Saun- ders,? the court held that the power to establish bank- ruptcy laws is not exclusively vested in Congress, but may be exercised by the States in the absence of Federal Legis- lation. State bankruptcy laws and the obligation of contracts The right of the States, in the absence of conflicting 24 Wh. 122; 4 L. ed. 529. 312 Wh. 213; 6 L. ed. 606. 296 PRINCIPLES OF THE CONSTITUTIONAL congressional legislation, to enact bankruptcy laws is limited by the provision of the Constitution that no State shall pass any law impairing the obligation of contracts. Indeed, if we are to accept the statement of the court in Hanover v. Moyses* this prohibition was made for this express purpose. In Sturges v. Crowninshield the court held invalid a State law which discharged the debtor from a contract entered into previous to its passage. In Ogden »v. Saunders, the court held valid a State bankruptcy law which discharged the debtor and his future acquisitions of property so far as it related to debts con- tracted subsequent to the passage of the law. The law was, thus, in effect, read into each contract as a clause thereof. The authority of the States to deal by bankruptcy or other laws with contracts entered into subsequent to their enactment is plenary.°® State laws have no extraterritorial force In Ogden v. Saunders was laid down the important principle that a certificate of discharge under a State law cannot be pleaded in bar of an action brought by a citizen of another State in the courts of the United States, or of any other State than that where the discharge was ob- tained. The creditor of another State is, however, con- cluded by the discharge in bankruptcy if by appearance or otherwise he has made himself a party to the original insolvency proceedings. The United States is, of course, not under this territorial limitation in the exercise of its bankruptcy powers, and, furthermore, it is not limited with reference to the impair- 4186 U.S. 181; 22 Sup. Ct. Rep. 857; 46 L. ed. 1113. 5 Edwards v. Kearzey, 96 U. 8. 595; 24 L. ed. 793; Denny v. Ben- nett, 128 U.S. 489; 9 Sup. Ct. Rep. 134; 32 L. ed. 491. Law oF THE UNITED StTaTEs 297 ment of the obligation of contracts. National bankrupt laws may, therefore, be made applicable to contracts al- ready entered into at the time of their passage.® It is, however, required of national bankrupt laws that they shall be uniform. The uniformity is a geographical one. The laws must, in all their provisions, be equally applicable to all of the States, and to incorporated terri- tories.’ State laws suspended but not annulled by Federal bank- ruptcy laws: Effect of the law of 1898 The enactment of a national bankrupt law does not operate to annul state laws on the same subject, but simply to suspend their operation so long as the national regulation is in force. Upon the repeal of the Federal law the State laws at once revive, and do not need re- enactment. So also a State law passed while a Federal bankruptcy law is in force goes at once into force with the repeal of the Federal Statute.’ The precise effect of the enactment of a Federal bank- ruptcy law in suspending the operation of existing State laws is not definitely determined from either the decisions of the State or Federal courts. That a State law covering the same ground as the national act, even though its provisions be not inconsistent therewith, is suspended is generally, though not uniformly, admitted. If, then, it is conceded that the intention of Congress was, by the en- actment of a bankruptcy law, to cover the entire subject, all State laws relating to bankruptcy are suspended while the national law remains in force.° 6 Hanover Bank v. Moyses, 186 U. 8. 181; 22 Sup. Ct. Rep. 857; 46 L. ed. 1113. 7 Quere as to unincorporated Territories. 8 Butler v. Goreley, 146 U. 8. 303; 13 Sup. Ct. Rep. 84; 36 L. ed. 981. ® Tua v. Carriere, 117 U. 8. 201; 6 Sup. Ct. Rep. 565; 29 L. ed. 855. 298 PRINCIPLES OF THE CONSTITUTIONAL Even if the view be accepted that by the act of 1898, the general subject of bankruptcy was fully covered there still remains, in many cases, the difficulty of determining when State laws relating to general assignments for the benefit of creditors, receiverships of corporations, etc., may be held to be in the nature of bankruptcy laws and as such rendered inoperative during the existence of the Federal law. Coinage Congress is given power “to coin money, regulate the value thereof, and of foreign coin, and fix the standards of weights and measures.” The authority thus given has been freely exercised by Congress but this legislation has given rise to very few constitutional questions. It is to be observed that power is given not only to coin, but to provide what shall be the legal tender value of the pieces coined. There has been no question but that the States possess no concurrent jurisdiction. The power is an exclusively Federal one.?° Weights and measures With reference to standards of weights and measure- ments the States are recognized to have power to legislate in the absence of congressional action. Counterfeiting Congress is expressly given the power “to provide for the punishment of counterfeiting the securities and current See the excellent article of Professor Williston in Harvard Law Review, XXII, 547, entitled “The Effect of a National Bankruptcy Law upon State Laws.” 10 By Art. I, § 10, cl. 1 of the Constitution, the States are ex- pressiy denied the power to coin money. Law oF THE UNITED STATES ; 299 coin of the United States.” There is little doubt, however, that, had the power not been expressly given, it would have been held implied in the power given to coin. The power of Congress to prohibit and to provide punishment for the counterfeiting of the coins and securities of foreign countries is considered in United States v. Arjona.! The passing of counterfeit coins or securities is an offense distinct from that of coining or “uttering” them, but the power to punish the former is implied in the power to forbid the latter. Under its powers to regulate commerce and to punish counterfeiting, Congress has been held to have the power to provide punishment for the bringing into the United States, with intent to pass the same, false, forged, or counterfeit coin, as well as for the passage or uttering of the same. In Fox v. Ohio ! it was held that the grant of power to the United States to punish the uttering and passing of counterfeits of its coins did not deprive the States of the power to render penal and to punish these acts. It was pointed out by the court that the same act might thus constitute as to its character and consequences an offense against both the State and the Federal governments. This doctrine was approved in United States v. Marigold." Postal service: Federal power The Federal control of the postal service is granted in the clause of Art. I, § 8, which provides that Congress shall have the power ‘‘to establish post-offices and post- roads.” In early years the view was maintained by some that by this grant Congress was given the power only to desig- 11120 U. 8. 479; 7 Sup. Ct. Rep. 628; 30 L. ed. 728. 12 Fox v. Ohio, 5 How. 410; 12 L. ed. 213. 139 How. 560; 13 L. ed. 257, 300 . PRINCIPLES OF THE CONSTITUTIONAL nate the routes over which the mails should be carried, and the post-offices where they should be received and dis- tributed, and to exercise the necessary protection in rela- tion thereto, and that it did not provide the authority to construct and operate agencies for the carrying and dis- tributing of mails. This was substantially the view taken by Monroe in the paper sent to Congress in connection with his veto, in 1822, of the Cumberland Road bill. In considerable measure Congress in its legislation has kept within the limits of the powers conceded to it by Monroe, but, when it has thought it wise, it has not hesi- tated to overstep them, and its Constitutional right so to do has for years been conceded. In California v. Central Pacific R. R. Co.,!4 the power of Congress to construct, or to authorize individuals to construct railroads across the States and Territories was held to be implied not only in the power given to Congress to regulate commerce, but in its authority to provide for postal facilities and military exigencies. Exclusion from the mails: Freedom of press: Searches and seizures: Ex parte Jackson In Ex parte Jackson !° was questioned the constitutional power of Congress to exclude lottery tickets from the mails, and in determining this the court found it necessary to consider the general extent of the administrative con- trol that might be exercised over the postal services and especially the relation thereof to the constitutionally guaranteed immunity of the people against unreasonable searches and seizures, as well as their right to freedom of the press. In its opinion the court pointed out that with- out Constitutional objection having been made, the power 4127 U.S. 1; 8 Sup. Ct. Rep. 1073; 32 L. ed. 1050. 1596 U.S. 727; 24 L. ed. 877. Law or tHe Unitep States 301 vested in Congress ‘“‘to establish post-offices and _post- roads,” had, from the beginning, been construed to auth- orize not only the designation of the routes over which the mails should be carried, the location of the offices wherein the mail matter should be received and dis- tributed, the carriage of that matter, and the establishment of regulations providing for its safe and speedy transit and prompt delivery, but the determination of what matter should be carried, its classification, its weight and form, and the charges to be made. The right to designate what shall be carried, it is declared, carries with it the right to determine what shall be excluded. However, the difficulty in this case arose not so much in establishing the powers of Congress to exclude ob- jectional matter from the mails, as in upholding the power to provide measures for enforcing effectively the tules of exclusion which might be legislatively declared. For, obviously, the presence in the mails of the proscribed matter could be determined only by examination of the mail matter by the proper administrative officer, and the granting of such a right of examination, it was claimed, was in violation of constitutionally guaranteed rights of the people. As to this the court declared: “Whilst regulations excluding matter from the mails cannot be enforced in a way which will require or permit an examination into letters, or sealed packages subject to letter postage. without warrant issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon a competent evidence of their violation obtained in other ways; as from the parties receiving the letter and packages, or from agents depositing them in the post-office, or others cognizant of the facts. As to the objectionable printed matter which is open to examination, the regulation may be enforced in a similar way, by the imposition of penalties for their violation through the 302 PRINCIPLES OF THE CONSTITUTIONAL courts, and, in some cases, by the direct action of the officers of the postal service. In many instances, those officers can act upon their own inspection, and, from the nature of the case, must act without other proof; as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed, and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases no difficulty arises and no principle is violated in excluding the prohibited articles or refusing to forward them. The evidence respecting them is seen by every- one, and is in its nature conclusive. In excluding various articles from the mails, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals.” In Ex parte Rapier it was again urged that Congress was without the constitutional power to forbid the use of the mails to lottery tickets, circulars, etc., but this time upon the ground that Congress was without the power to declare the lottery itself a criminal enterprise. To this the court replied: “It is not necessary that Congress should have the power to deal with crime or immorality within the States in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime and immorality. We cannot regard the right to operate a lottery as a fundamental right in- fringed by the legislation in question; nor are we able to see that Congress may be held, in its enactment, to have abridged the freedom of the press.” It will be observed that the cases Ex parte Jackson and In re Rapier go no further than to sustain the power of © 143 U.S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93. Law or THE UNITED STarEs _ 303 the United States to exclude from the mails matter which it deems objectionable. They do not decide that Congress may permit the sending into a State and the delivery therein of matter considered seditious, immoral, or other- wise objectionable by the State. This point has never been passed upon by the Supreme Court. It has, how- ever, been debated in Congress and there is an opinion of the United States Attorney-General Cushing ” that Congress has not this power. This opinion declares that while the Federal Government has full control, free from State interference, to regulate the transmission of the mails up to the time of their receipt by the postmaster of the office to which they are directed, the States may, in the exercise of their acknowledged police power, prevent their citizens from receiving incendiary or other matter which they deem objectionable. From the opinion rendered in the Hx parte Jackson and other cases, it would appear that the States are with- out the power to conduct postal operations over post- roads in competition or conflict with the United States, but that they may permit, or themselves provide for, the carrying of letters or merchandise in other ways, as, for instance, by express companies, and this too, with ref- erence to material excluded by Congress from the mails as immoral, fraudulent, or otherwise objectionable. How- ever, the distribution of matter treasonable to the United States or inciting resistance to its laws may of course not be authorized, nor may interstate commerce be regulated: In a later chapter dealing with administrative powers will be discussed the extent of the discretionary power that may be granted the Postmaster-General and his agents in excluding matter from the mails under so-called “fraud orders.” 78 Op. Atty. Gen. 489, 18 Chapter LIV. 304 , PRINCIPLES OF THE CONSTITUTIONAL Protection of the mails: In re Debs In Re Debs ® was presented the question whether, for the protection of the mails, as well as of interstate com- merce, the Federal Government may, by the use of ju- dicial restraining orders or the employment of its armed forces, prevent interferences, or whether it is obliged to wait until there has been such interference, and then punish the guilty ones in its courts. The court held that the former as well as the latter means are open to it. Patents Congress is given the power “to promote the progress of useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writ- ings and discoveries.” The granting by the United States of a patent right does not give to the patentee the authority to exercise it in a State in violation of the police laws of that State,” or of the United States. Copyrights —Trade-marks In the Trade-Mark Cases ”? it was held that the ordinary trade-mark has no necessary relation to invention or dis- covery, and, therefore, that its use may not be regulated by Congress under the power to provide for the issuance of patents and copyrights. Lacking this authority the court held that the Federal Government has power to legislate with reference to trade-marks only in so far as their use 19 158 U.S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092. 0 Patterson v. Kentucky, 97 U. S. 501; 24 L.-ed. 1115; Webber ». Virginia, 103 U. 8. 334; 26 L. ed. 565; Allen v. Riley, 203 U. 8. 347; 27 Sup. Ct. Rep. 95; 51 L. ed. 216. *1 United States ». Standard Sanitary Mfg. Co. (“Bath Tub- Trust’’), U. S. Cir. Ct., decided Oct. 18, 1911. 22 100 U. S. 82; 25 L. ed. 550. Law oF THE UnItTEep SrarTes 305 in interstate trade is concerned. The law in question in the case not being thus limited was held void. Piracies, etc. The power of the United States to define and punish piracies and other crimes committed on the high seas, and offenses against the law of nations, may be supported upon three constitutional grants,—one express and two implied. In Art. I, § 8, Clause 10, it is expressly given. It may be implied from the Federal admiralty and maritime jurisdiction, and from the general control granted to the Federal Government in all that concerns foreign affairs. The implied power to define and punish crimes under the maritime jurisdiction is broader, territorially, than that given in Art. I, § 8, Clause 10, inasmuch as admiralty jurisdiction has been construed to extend not only over the high seas, but over all public navigable waters. The authority given to Congress to define and punish all offenses against the law of nations would seem to be broad enough to authorize the prohibition and punish- ment of acts which, though committed within the terri- torial limits of the several States, may give rise to inter- national responsibilities upon the part of the United States. It would also seem that this authority may be implied from the general fact that to the Federal Govern- ment is given the exclusive control of foreign relations, and that to it alone foreign States look for redress of any injuries which they may conceive themselves to have suffered. Where the responsibility is imposed, the right to prevent its accruing may properly be implied.” By the clause under discussion Congress is given the power not simply to provide for the punishment of piracy 3 United States v. Arjona, 120 U. 8. 479; 7 Sup. Ct. Rep. 628; 30 L. ed. 728. an 306 PRINCIPLES OF THE CONSTITUTIONAL as defined by the law of nations, but itself to define what shall constitute the offense and punish it as such. Thus, for example, the slave trade, though not declared by inter- national law to be piracy, has by Congress been declared so to be. Declaration of war War, that is, a contest the parties to which have been recognized as belligerents, is a status that gives rise to numerous legal consequences to the parties involved, to neutral powers, to the actual combatants, and to non- combatants. In all countries it is, therefore, a matter of great importance what authority shall have the consti- tutional power of creating such a status, and of deter- mining the date of its beginning. That, under our Constitution, the United States may begin war against a foreign country only by a declaration issued by Congress has never been disputed, the Constitu- tion expressly providing that Congress shall have the power to declare war. That a foreign nation, or insurrectionary body of citizens, may by invasion of the United States or by other acts bring about a condition of affairs which will warrant the President, in declaring in advance of congressionable legislation that a state of war exists, was asserted by the Supreme Court in the Prize Cases.”4 The powers of Congress with reference to the prosecu- tion of a war, and some of the legal incidents to a state of war are discussed in later chapters. Letters of marque and reprisal and captures on land and water Congress is authorized by the Constitution to grant letters of marque and reprisal and to make rules concern- ing captures on land and water. 242 Black. 635; 17 L. ed. 459. Law oF THE UnitTED STATES 307 It has been held that letters of marque may be granted to privateers to make captures within the territorial waters of the United States as well as upon the high seas. Similarly Congress may make rules concerning captures within the United States as well as upon the high seas or upon foreign soil.” Other military powers The express powers given to Congress with reference to raising and supporting armies, the organizing, arming, disciplining, and calling forth the militia to execute the laws of the Union, and, generally, the powers of Congress with reference to the prosecution of a war, are considered elsewhere. 25 The Experiment, 8 Wh. 261; 5 L. ed. 612. % Brown v. United States, 8 Cr. 110; 3 L. ed. 504. CHAPTER XXXV PROHIBITIONS ON CONGRESS Absolute and qualified prohibitions In the chapters which have gone before the powers of Congress have been considered. In connection therewith have been discussed the express and implied limitations which restrain Congress in*the exercise of those powers. In the present chapter we shall have to deal with the general limitations laid by the Constitution upon Congress, either by way of the absolute denial to Congress of a power, or by way of express provision that certain powers shall be exercised only under certain specified cireum- stances. It would seem that certain of these limitations thus expressly imposed operate as an absolute denial to Con- gress of a legislative power with reference to the subjects specified, without regard to time or place. Others of these limitations, as was held in the Insular Cases, serve to restrain the iegislative powers of Congress only when dealing with the States and incorporated territories.! Importation of slaves The provision of the Constitution that “the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be pro- hibited by the Congress prior to the year 1808,” has, of course, become obsolete. 1 Downes v. Bidwell, 182 U. 8. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. eo 308 Law or THE UNITED STATES 309 With respect to the immigration of persons into the United States, the authority of the United States is ex- clusive as regards its commerce power, or its control of foreign relations. The States may not levy a tax on per- sons entering the United States, such a tax not being relieved from the constitutional objection that it is an interference with commerce by describing it in its title as in aid of an inspection law which authorizes immi- grants to be inspected with reference to their being crimi- nals, paupers, lunatics, or persons liable to become a public charge. Inspection laws, the Supreme Court has declared, have reference to property and not to persons.” Suspension of habeas corpus The provision that the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it, is considered in a later chapter dealing with Martial Law.’ Bills of attainder Clause 3 of § IX of Art. I provides that ‘No bill of at- tainder . . . . shall be passed.” This clause has given rise to an inconsiderable number of judicial determinations. The principal case in definition of a bill of attainder is that of Cummings v. Missouri,’ in which the court held unconstitutional the test oath of loyalty imposed by the Constitution of Missouri as a con- dition precedent to holding any State office of trust or profit, or practicing the profession of the law or ministry. The court declared: ‘A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of 2. New York v. Compagnie Générale Transatlantique, 107 U. 8. 59; 2 Sup. Ct. Rep. 87; 27 L. ed. 383. 3 Chapter LIT. 44 Wall. 277; 18 L. ed. 356. 310 PRINCIPLES OF THE CONSTITUTIONAL pains and penalties. Within the meaning of the Consti- tution, bills of attainder include bills of pains and penalties. In these cases the legislative body in addition to its legiti- mate functions, exercises the powers and office of a judge, it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of a trial; it deter- mines the sufficiency of the proofs produced, whether con- formable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notion of the enormity of the offense.”’ The opinion then goes on to declare that the questioned clauses of the Missouri Constitution are also invalid as ex post facto legislation, being aimed at past rather than future acts. In Ex parte Garland,°® decided at the same time as the Cummings case, the court held void, as a bill of attainder, the act of Congress of January 24, 1865, prescribing as a qualification for admission as an attorney before the Federal courts an oath that the deponent had never vol- untarily borne arms against the United States, given aid to its enemies, etc. -A statute making the non-payment of taxes evidence of disloyalty during the Civil War and providing for the for- feiture of lands without a judicial hearing was held to be a bill of attainder,® as was a law excluding from the United States Chinese who are citizens of the United States.’ Ex post facto legislation The same clause of the Constitution which prohibits bills of attainder declares that no ex post facto legislation shall be valid. 54 Wall. 333; 18 L. ed. 366. 8 Martin v. Snowden, 18 Gratt. 100. 7In re Yang Sing Hee, 13 Saw. 486. Law or THE UNITED StaTEs 311 In the early case of Calder v. Bull® the prohibition was declared to relate only to criminal and not to civil pro- ceedings, and, as thus limited, ex post facto laws were de- clared to be ‘‘every law that makes an action done before the passing of a law, and which was innocent when done, criminal; and punishes such action. Every law that aggra- vates a crime, or makes it greater than it was, when com- mitted. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Every law that alters the legal rules of evidence, and requires less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” By later decisions this definition of ex post facto legisla- tion has been broadened so as to include all laws which in any way operate to the detriment of one accused of a crime committed prior to the enactment of such laws.° Appropriations It is provided that “no money shall be drawn from the treasury but in consequence of appropriations made by law.” This restriction, it is apparent, operates rather upon the officials of the Treasury Department than upon Congress. The legislative body is left free to authorize such expendi- tures as it may see fit, and to direct the payment to be made by the Secretary of the Treasury. This direction having been given by law, no discretionary power is left with the Treasury Department to determine whether the payment is a proper one.” 83 Dall. 386; 1 L. ed. 648. ® Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 1061. In this case the earlier cases are carefully reviewed. 10 United States v. Price, 116 U. S. 43; 6 Sup. Ct. Rep. 235; 29 L. ed. 541. 312 PRINCIPLES OF THE CONSTITUTIONAL Congress may, as has been earlier pointed out, appropri- ate sums of money for private purposes; for the construc- tion and maintenance of works which the United States could not constitutionally itself construct or operate; and recognize and pay claims of merely an equitable or moral nature." That money once covered into the United States Treas- ury may not, by a judicial process, be recovered therefrom without the sanction of an act of Congress, is further dis- cussed under the title ‘‘Suability of the United States.’’!? Jury trial By Art. ITI, § II, Clause 3, it is provided that ‘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 in any State, the trial shall be at such a place or places as the Congress may by law have di- rected.” By the Sixth Amendment, this requirement of a trial by jury is repeated and the additional condition imposed that the trial of persons accused of crime shall be speedy and public, the jury an impartial one, selected from the State and district wherein the crime shall have been com- mitted, which district shall have been previously ascer- tained by law, and that the accused shall be informed of the nature and cause of the accusation, be confronted with the witnesses against him, have compulsory process for obtaining witnesses in his favor, and have the assistance of counsel for his defense. The relation between this Amendment, and the third 11 United States v. Realty Co., 163 U. S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215. 12 Chapter XLV. Law oF THE UNITED SraTEs 313 clause of § II of Art. III is, as stated in Callan v. Wilson, that in the latter are enumerated, ex abundanti cautela, the rights to which, according to settled rules of common law, the accused is entitled. Offenses committed outside the jurisdiction of a State are not local, but may be tried at such places as may be designated by Congress. In Capital Traction Co. v. Hof, “trial by jury” is de- clared to be “a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict, if, in his opinion, it is against the law or the evidence.”” Unanimity in the verdict is essential, as are twelve jurors. Courts and actions in which jury not required The right of trial by jury provided for in the Constitu- tion applies only in the Federal courts, and in them it applies only to those cases in which, by common practice at the time the Constitution was adopted, it was employed in the colonies and in England. Thus it does not apply to equity causes, to cases in admiralty or to military courts, nor where the special prerogative rights of court are in- volved, as, for example, in proceedings for disbarment or for contempt." Furthermore, it has been generally recognized by courts, Federal as well as State, that the guarantee of the right to a trial by jury does not apply to the petty offenses, 13127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223. See also Story, Commentaries, § 1791. 144174 U.S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed. 873. 15 Springville v. Thomas, 166 U. 8. 707; 17 Sup. Ct. Rep. 717; 41 L. ed. 1172. 16 In re Debs, 158 U.S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092. 314 PRINCIPLES OF THE CONSTITUTIONAL which, at the time the Constitution was adopted, it was generally recognized might be more summarily dealt with. The enjoyment of the right is not, however, limited to felonies.” Infamous crimes The provision of the Fifth Amendment that no one shall be held to trial for a criminal offense unless on a present- ment or an indictment of a grand jury, is especially limited to capital or other infamous crimes. It would seem that there is no hard and fast definition, in American law at least, of an “infamous crime,” each case having thus to be decided on its merits. ¥ The practical construction which the cases have put upon the constitutional provision with reference to indict- ments has been thet there must be an indictment in every case in which the imprisonment may be for more than a year, inasmuch as by § 5541 of the Revised Statutes it is provided that whenever a person is sentenced to more than one year’s imprisonment he may be required to serve the sentence in a penitentiary. By the provision of § 335 of the act of March 4, 1909, revising, amending and codify- ing the penal laws of the United States, it is declared that “all offenses which may be punished by death, or imprison- ment for a term exceeding one year, shall be deemed fel- onies. All other offenses shall be deemed misdemeanors.” Waiver of constitutional guaranties The law governing the waiver by the accused of his con- stitutional right to a trial by jury in criminal actions, or to a trial by less than twelve jurors, and, indeed, the waiver of any constitutional guaranty, is not in a clearly deter- ” Callan v. Wilson, 127 U.S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223. ‘8 Bx parte Wilson, 114 U.S. 417; 5 Sup.Ct. Rep. 935; 29 L. ed. 89. Law oF THE UNITED STATES 315 mined condition. In cases arising under State constitu- tions, inharmonious doctrines have been declared. In some jurisdictions the position has been taken that the guarantees are intended merely for the benefit of the ac- cused and may, therefore, be waived. In other States the courts have held that the guaranty of jury trial in criminal cases is one in which the State also has an interest, and which for that reason may not be waived. In some courts, a third view is taken that the jury is essential to give the court jurisdiction, and that while in case of a plea of guilty, the court may at once pronounce judgment, be- cause there are no facts to be determined, where the plea is not guilty, an issue is raised which only a jury is compe- tent to decide.” In the United States Supreme Court it has been held in Schick v. United States” that jury trial may be waived in the trial of minor offenses. The right of the accused to waive jury trial in cases of felony has never come before the Supreme Court; but in Lewis v. United States”! that court held that, in felonies, the presence of the accused could not be waived either by himself or by counsel. The record must show, affirma- tively, the presence of the prisoner in court during the trial. It would seem that, in this case at least, the Su- preme Court held that a right guaranteed by the Amend- ments, as distinguished from those in the body of the Con- stitution, might not be waived. In the majority opinion in Hawaii v. Mankichi®’ the rather surprising statement is made that grand and petit juries in criminal proceedings “‘are not fundamental in their nature, but concern merely a method of procedure.” 19 See note in Columbia Law Review, VIII, 577. 2195 U.S. 65; 24 Sup. Ct. Rep. 826; 49 L. ed. 99. 21146 U. 8. 370; 13 Sup. Ct. Rep. 136; 36 L. ed. 1011. 22190 U.S, 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016. 316 PRINCIPLES OF THE CONSTITUTIONAL Speedy trial The Sixth Amendment secures to the accused a speedy as well as a public trial. This provision has received very little discussion in the Federal courts, and so far as the author is aware, no case in which its violation has been asserted has reached the Supreme Court. Public trial ; The Constitution expressly provides that criminal trials shall be publicly conducted, and, indeed, it would seem that publicity has been a common-law incident of trials for crime. Many of the State constitutions also expressly provide that proceedings shall be public. In numerous cases, however, it has been held by the State courts that this does not prevent the more or less complete exclusion of spectators where public morals have seemed to require it, and where no prejudice to the accused is thereby oc- casioned. The question has not been passed iipon by the Federal Supreme Court. Double jeopardy It is provided by a clause of the Fifth Amendment that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Cases may occur in which the same act may render the actor guilty of two distinct offenses; as, for example, the passing of counterfeit coin of the United States, which may be both an offense against the United States, and, as a fraud on its citizens, an offense against the State. In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment, for one offense in bar to a conviction for the other.”! 3 Fox v, Ohio, 5 How. 410; 12 L. ed. 213; United States v. Mari- Law or THE UNITED STATES 317 From this class of acts which constitute two or more distinct offenses, are to be distinguished those acts which are punishable by the tribunals of two or more countries, or by two or more tribunals of the same country. Here the offense is a simple one, but cognizable in two juris- dictions. In such case an acquittal or punishment in one may be pleaded in bar to a prosecution in another court based upon the same act. Thus, in Grafton v. United States‘ it was held that one acquitted by a military court of competent jurisdiction could not be tried a second time in a civil court for the same offense. This doctrine holds even though the punishment which may be inflicted by the court is different from or greater than that which may be imposed by the other; or even if the indictment in the one court charge a different crime from that stated in the other. What constitutes “jeopardy” is, in accordance with the general principle of constitutional construction, to be de- termined by the usage of the word and the custom of the common law at the time the Constitution was adopted. By the common law not only was a second punishment for the same offense prohibited but a second trial forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.” It is not necessary, in order that prior jeopardy may be pleaded in bar, that there should have been a former trial and verdict by a jury. This is not the rule uniformly stated, but as declared in Kepner v. United States,” “the weight of authority, as well as decisions of this court, have sanctioned the rule that a person has been in jeopardy gold, 9 How. 560; 13 L. ed. 257; Moore v. Illinois, 14 How. 13; 14 L. ed. 306. 24 206 U. S. 333; 27 Sup. Ct. Rep. 749; 51 L. ed. 1084. 2 Ex parte Lange, 18 Wall. 163; 21 L. ed. 872. % 195 U. 8. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114. 318 PRINCIPLES OF THE CONSTITUTIONAL when he is regularly charged with a crime before a tribunal properly organized and competent to try him; certainly so after acquittal.” Where, upon a former trial, the jury has reported disa- greement, it appearing reasonably certain that an agree- ment cannot be obtained, and the jury has been discharged by the court, a plea of former jeopardy will not be held good.”” Jeopardy and the right of appeal It is established that in criminal cases the State has no right of appeal where the accused may fairly be said to have been placed in jeopardy. This, the doctrine of the com- mon law, has been repeatedly accepted by the United States Supreme Court. A verdict or a judgment in a trial court in favor of the accused is, therefore, as to him, final and conclusive. But acquittal before a court without jur- isdiction is absolutely void and, therefore, no bar to a subsequent indictment and trial before a court having jurisdiction.” Where, upon conviction, the defendant has taken an appeal, and a new trial has been ordered, he may be found guilty of an offense of a higher degree than that originally found against him. Thus a verdict of manslaughter hav- ing been found, and appeal taken, and a new trial awarded, a verdict of murder may be returned.” Self-incrimination—Immunity from, not a requirement of due process of law By the Fifth Amendment it is provided: “‘ Nor shall any person be compelled, in any criminal case, to be a witness 27 United States v. Perez, 9 Wh. 579; 6 L. ed. 165. *8 United States v. Ball, 163 U. 8. 662; 16 Sup. Ct. Rep. 1192; 41 L. ed. 300. *® Trono v. United States, 199 U. S. 521; 26 Sup. Ct. Rep. 121; 50 L. ed. 292. Law oF THE UNITED States 319 against himself.” The guaranty thus furnished is one independent of the guaranty of “due process of law” and is thus one which, so far as the Federal Constitution is concerned, is not secured to the individual in the State courts.*° If the answer will tend merely to disgrace but not to incriminate the witness, the privilege does not apply. If, however, the answer is one which can have no bearing on the case except to impair the credibility of the witness, he may refuse to answer.*! The immunity which is provided has for its object the protection of the individual against criminal prosecution based upon evidence which has been compulsorily ob- tained from him. Thus the provision is no bar to the use in a subsequent prosecution of evidence that has been voluntarily given by the accused; nor does it prevent the courts from compelling testimony with reference to acts no longer punishable, or where, by statute, subsequent use of the evidence so obtained in criminal actions has been forbidden. Thus also the immunity does not relate to evidence the tendency of which is merely to discredit the moral character of the witness.*? In Hale v. Henkel** the court declare the broad doctrine that the line is drawn at testimony that may expose the witness to criminal prosecution. “If the testimony relate to criminal acts long since past, and against the prosecu- tion of which the statute of limitations has run, or for which he has already received a pardon, or is guaranteed an immunity, the amendment does not apply.” % Twining v. New Jersey, 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97. 31 Brown v. Walker, 161 U.S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819. 32 The State courts are in conflict as to this. 33 201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652. 320 PRINCIPLES OF THE CONSTITUTIONAL If the witness waives his privilege, and discloses his criminal connections, he may not stop, but must make a full disclosure of the facts regarding which he is interro- gated.*# Where the right to compel testimony is based upon a statute granting immunity from subsequent prosecution, the immunity granted must be complete. Absolute pro- tection against later criminal actions for the offense to which the testimony relates must be provided.* The immunity of the individual from compulsory self- incrimination includes the right to refuse to produce pri- vate books and papers which will have, or will tend to have, this effect.*° But it does not permit him, as an officer of a corporation, to refuse to produce its books and papers when the corporation is charged with a violation of a statute by the State of its creation or of the State in which it is doing business, or of an act of Congress.” Unreasonable searches and seizures The question as to the right of the government to com- pel the production of books and papers is closely connected with the provision of the Fourth Amendment with refer- ence to unreasonable searches and seizures. This pro- vision has received comparatively little direct interpreta- tion and application at the hands of the Supreme Court. In Ex parte Jackson* it was, however, held that it applies 4 Brown v. Walker, 161 U.S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819. ** Councilman v. Hitchcock, 142 U.S. 547; 12 Sup. Ct. Rep. 195; 35 L. ed. 1110. ** Boyd v. United States, 116 U. S. 616; 6 Sup. Ct. Rep. 524; 29 L. ed. 746. 5 *’ Hale v. Henkel, 201 U. 8. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652. 896 U. 8. 727; 24 L. ed. 877. See also, generally, Boyd v. United States, 116 U. 8, 616; 6 Sup. Ct. Rep. 524; 29 L. ed. 746. Law or THE UNITED STATES 321 to sealed matter in the mails. Corporations come within its protection.® Cruel and unusual punishments The provision of the Eighth Amendment that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” has given rise to few adjudications in the Supreme Court. The prohibitions are not included within “due process of law,” and are not, therefore, made applicable by the Fourteenth Amendment to the States.” The fact that the method of administering the death penalty, for example, by electrocution, is new, does not bring it within the constitutional prohibition, unless it also inflicts what amounts to lingering torture.*! In Weems v. United States,” is given the most careful examination that the .Eighth Amendment has received. In this case the very important position is substantially taken by the court that a punishment not cruel and un- usual in kind may become such by its severity in amount or degree—the judgment as to this in last instance necessa- rily devolving upon the court. . Treason The power of Congress with reference to both the defin- ition and punishment of treason is limited by § III of Art. III of the Constitution. The three clauses of this section provide as follows: “Treason against the United States shall consist in %® Hale v. Henkel, 201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652. -. 4 Hx parte Kemmler, 136 U. 8. 436; 10 Sup. Ct. Rep. 930; 34 L. ed. 519. +1 Idem. 42217 U.S. 349; 30 Sup. Ct. Rep. 544; 54 L. ed. 793. 21 322 PRINCIPLES OF THE CONSTITUTIONAL levying war against them, in adhering to their enemies, giving them aid and comfort.” “No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” “The Congress shall have power to declare the punish- ment of treason; but no attainder of treason shall work corruption of-blood, or forfeiture, except during the life of the person attainted.” ; The purpose of these provisions is to exclude the possi- bility of the Federal Government, through either its judi- cial or legislative branches, following the precedents of English law and practice, and declaring a great variety of acts to constitute treason and punishable as such. Treason is a breach of allegiance. This allegiance may be one of full citizenship, or one based upon the presence of an alien, and the commission of the treasonable act, within the territorial limits of the United States. In an earlier chapter it has been pointed out that an alien within the territorial limits of a State, whether domiciled there or not, owes for the time being a qualified allegiance to that State. He enjoys the protection of its laws, and may be guilty of treason if he wages war against or gives com- fort or aid to the enemies of that sovereignty. The distinction between ‘“‘high’’ and “‘petit’’ treason is not known to American constitutional law. Or rather, under our law, petit treason no longer exists. It is now _ simply murder. Misprision of treason is defined and its punishment pro- vided for by § 5833 of the Revised Statutes.. The con-. stitutionality of this provision was considered and not questioned in United States v. Wiltberger.*4 43 Carlisle v. United States, 16 Wall. 147; 21 L. ed. 426; Radich v. Hutchins, 95 U. 8. 210; 24 L. ed. 409. 495 Wh. 76; 5 L. ed. 37. Law or THe UNITED STATES 323 By the definition of the Constitution treason to the United States may be charged only in cases where the accused has levied war against the United States, adhered to its enemies, or given them aid and comfort; and, for conviction, there must have been an overt act. The distinction between a mere riot, or resistance to the execution of a law, and treason is not always easy to draw, but in general the authorities hold that resistance to pub- lic authority, in order to constitute a levying of war and, therefore, treason, must amount to an effort directly to overthrow the government, or to prevent a law from being executed not simply in a particular instance, but generally. Thus in United States v. Mitchell* it was held by a Fed- eral court that an insurrection of armed men, the object of which was to suppress the excise offices and to prevent by force and intimidation the execution of an act of Con- gress, was a levying of war, and, as such, treason. Upon the other hand, it was held in United States v. Hoxie that if the resistance offered to the execution of the law had no public purpose in view, treason was not committed, how- ever great the degree of force employed. Treason against a State of the Union The punishment of the crime of treason against the United States is placed exclusively within the control of the Federal authorities. Treason against an individual State of the Union, however, is punishable by the author- ities of the State, which authorities have, subject to the general limitations placed upon them by the Federal Con- stitution with reference to due process of law, ex post facto 452 Dall. 348; 1 L. ed. 410. See Ex parte Bollman, 4 Cr. 75; 2 L. ed. 554, for a careful consideration of what constitutes war. In this case it is held war must be actually levied if treason is to be found. Mere enlistment for the purpose of carrying on war against the United States is not enough. 324 PRINCIPLES OF THE CONSTITUTIONAL legislation, etc., the power to determine what acts shall be held to constitute treason against the State. Offenses, other than treason, against the existence and operation of the Federal Government The Federal Government, though restrained by the Constitution with reference to the definition of treason, has the general power to define and punish as it sees fit all acts against its existence or undisturbed operation. Thus it has by statute defined and provided punishment for misprision of treason, inciting or engaging in rebellion or insurrection, criminal correspondence with foreign gov- ernments, seditious conspiracy, recruiting soldiers or sailors to serve against the United States, enlistment to serve against the United States, and generally, acts which interfere with the effective operations of the government. Jury trial in civil suits By the Seventh Amendment it is provided that “in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than ac- cording to the rules of common law.” This provision, it has been determined by the Insular Cases, does not apply ex proprio vigore to the unincorpo- rated territories. Trial by jury, as used in this provision, refers to “a jury of twelve men, in the presence of and under the superin- tendence of a judge empowered to instruct them in the law and to advise them on the facts, and to set aside their verdict if, in his opinion, it is against the law and the evi- dence.” The “rules of common law,” refer, of course, to the common law of England, which permits a new trial, granted by the trial court or by an appellate court for errors in law committed on the first trial. Law oF THE Unitep STATES 325 In Capital Traction Co. v. Hof** it was held that the right to jury is preserved, when an appeal, on giving bond, is allowed from a judgment of a justice of the peace to a court of record, where trial is had by jury. The constitu- tional provision, it is pointed out, does not prescribe at what stage of an action a trial by jury must, if demanded, be had, or what conditions may be imposed upon the de- mand of such a trial, consistently with preserving the right to it. The right to a jury trial in civil cases, whatever the value in controversy, may be waived. Religious freedom The provision of the First Amendment that ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” has given rise to comparatively little litigation in the Federal courts. In Reynolds v. United States’ the meaning of the pro- hibition is carefully considered and the conclusion, una- voidable from a practical viewpoint, reached that the pro- hibition does not prevent Congress from penalizing the commission of acts which, though justified by the tenets of a religious sect, are socially or politically disturbing, or are generally prohibited by the moral sense of civilized communities. Thus, in this case, it was held that poly- gamy might be declared illegal and criminal, though de- clared proper and even meritorious by the Mormon Re- ligion. Under provisions of State constitutions prohibiting the creation of State religious establishments, the appropria- tion of money for sectarian purposes, and in general the infringement of religious freedom and equality, many 174 U.S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed. 873. 4798 U.S. 145; 25 L. ed. 244. See also Davis v. Beason, 133 U. 8. 333; 10 Sup. Ct. Rep. 299; 33 L. ed. 637. 326 PRINCIPLES OF THE CONSTITUTIONAL cases have arisen in which American doctrines of Church and State have been discussed. A consideration of these cases will not be appropriate in this treatise, but it may be said that a peculiarly valuable examination of the doc- trines governing the attitude of the courts in dealing with property claimed by two or more contesting religious bodies, is that contained in the opinion of the Supreme Court in Watson v. Jones.® Freedom of speech and press The prohibition laid upon Congress by the First Amend- ment that it shall make no law ‘abridging the freedom of speech, or of the press” has given rise to very few pro- nouncements by the Supreme Court, and in no instance, indeed, has the constitutionality of an act of Congress been seriously questioned upon this ground before that tribunal. In United States ». Williams” the provision of the Im- migration Act of March 3, 1903, for the exclusion of aliens holding anarchistic beliefs was indeed questioned on the ground that freedom of speech and press was infringed, but the court dismissed the point with the observation that while it is true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled therefrom, he is cut off from speaking or publish- ing in this country, yet the right freely to speak or publish is not infringed, for the one claiming the right “does not become one of the people to whom these things are se- cured by our Constitution by an attempt to enter, for- bidden by law.” The question thus became simply one of the right to exclude. As to this the court had no doubt in the premises of the power of Congress. 13 Wall. 679; 20 L. ed. 666. 4 104 U. S. 279; 24 Sup. Ct. Rep. 719; 48 L. ed. 979. Law or THE UNITED SratTes 327 In Ex parte Jackson the court after holding that sealed matter in the mails may not be opened and examined, ex- cept upon a proper search warrant, go on to observe that as to printed unsealed matter, their transportation in the mails may not be so interfered with as to violate the free- dom of the press, because unfettered circulation of printed matter is as essential to the freedom of the press as is the liberty of printing. Therefore, it is declared, if printed matter be excluded from the mails its transportation in other ways may not be forbidden by Congress. And in Ex parte Rapier*! the court say with reference to the exclusion of lottery tickets, and advertisements thereof, from the mails: “The circulation of newspapers is not prohibited, but the government declines to become an agent in the circulation of printed matter which it re- gards as injurious to the people. The freedom of communi- cations is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matter condemned by its judgment, through the government agencies which it controls.” The main purpose of the constitutional provisions of the First Amendment has been declared to be ‘‘to prevent all such previous restraints upon publications as have been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed con- trary to the public welfare.’? In the case in which this doctrine is declared, the court held unfounded the claim of a right under the First Amendment to prove the truth of statements contained in certain publications which had 5096 U.S. 727; 24 L. ed. 877. 51 143 U.S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93. 52 Patterson v. Colorado, 205 U. 8. 454; 27 Sup. Ct. Rep. 556; 51 ‘L. ed. 879. 328 PRINCIPLES OF THE CONSTITUTIONAL by the lower court been held to constitute contempt of the court. It would thus appear that the prohibition of the First Amendment relative to the abridgement of freedom of press and speech not only leaves to the Federal courts the authority to grant relief to persons libeled or slandered, and to punish for contempt the publication or utterance of statements reflecting upon its own dignity or calculated to interfere with the proper and efficient administration of justice and the execution of its writs, but that it pre- serves, or at least does not restrict the power of Congress to declare criminal and provide punishment for the pub- lication or open advocation of doctrines or practices cal- culated to destroy or to inteniere with the exercise of its constitutional powers. Thus it would seem beyond question that Congress may define and punish seditious libel, provided the prohibi- tion extends to acts which clearly tend to sedition. The Sedition Act of 1798, never came before the Supreme Court, but was upheld as constitutional by three Federal judges; and the argument by those criticising it, rather was that the act was too broad, than that seditious libel, properly defined, might not be punished. The right peaceably to assemble and petition By the First Amendment the right of the people is guaranteed “peaceably to assemble, and to petition the government for redress of grievances.”’ Almost the only discussion by the Supreme Court of this provision is that contained in the opinion in United States v. Cruikshank,** in which it is held that the right is distinctively a Federal one secured from State restriction. The right to bear arms By the Second Amendment it is provided that “a well- 53.92 U. S. 542; 23 L. ed. 588. Law or THE UnitTep States 329 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.” The quartering of troops The provision of the Third Amendment that “‘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 man- ner to be prescribed by law,” requires little explanation, and has received practically none by the Supreme Court. Slavery and involuntary servitude The prohibition of the Thirteenth Amendment is abso- lute upon both the States and the Federal Government that ‘neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” By § 2 of the Amendment Congress is given the power to enforce this provision by appropriate legislation. It is to be observed that whereas the Fourteenth Amend- ment has for its aim the protection of citizens against action on the part of the States, and that, therefore, the legislative power of Congress under its enforcement clause is limited to the prevention or punishment of the pro- hibited acts on the part of the States, the Thirteenth Amendment absolutely prohibits the existence of the in- stitution or fact of slavery or involuntary servitude, and the enforcement clause, therefore, gives to the General Government the power to punish the individual or in- dividuals, whether private persons or State officials who hold, or attempt to hold, anyone in slavery or involuntary servitude. Pursuant to the power thus given Congress has, by various acts, declared criminal and provided punish- 330 PRINCIPLES OF THE CONSTITUTIONAL ment for those persons violating the constitutional pro- vision.*4 This legislative power of Congress does not, however, extend to the prohibition and punishment of those acts which do not themselves amount to a holding of one in slavery or involuntary servitude, but are acts which in- fringe the freedom of another. Thus in Hodges v. United States®> was sustained a demurrer to an indictment in a Federal court, on the ground of lack of jurisdiction, which indictment charged the accused with compelling certain negro citizens, by intimidation and force, to desist from performing contracts of employment. To the argument that one of the indicia of slavery is the lack of power to make or perform contracts, and that by the acts of the accused this disability had been brought about and the negroes thus pro tanto reduced to a con- dition of slavery, the court replied that practically every wrong done to another has this result, and to concede the claim of counsel would be to place the punishment of all acts of personal wrong or duress within the power of. the Federal Government. Involuntary servitude: Peonage The Thirteenth Amendment had, of course, for its chief purpose, the abolition of negro slavery. But this was not the sole purpose. Its terms were purposely made broad enough to exclude not only the slavery of any person, what- ever his race or color, but his involuntary servitude save as a punishment for crime. It has thus become necessary 548ee Chapter 10, Act of March 4, 1909, codifying, revising and amending the Federal laws of the United States. 35 Stat. at L. 1138. As to the direct legislative power of Congress under the Thirteenth Amendment, see Clyatt v. United States, 197 U. 8. 207; 25 Sup. Ct. Rep. 429; 49 L. ed. 726. Also, Civil Rights Cases, 109 U. 8. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835. 55 203 U.S. 1; 27 Sup. Ct. Rep. §; 51 L. ed. 65. Law or THE UNITED STaTEs 331 for the courts to pass upon the constitutionality of various forms of compulsory service which, while not amounting to slavery, have been alleged to constitute involuntary servitude or peonage.*® The Thirteenth Amendment renders unenforcible con- tracts for personal services, suits for damages in cases of breaches of such contracts being the only remedy left the ones to whom such services have been promised. A more doubtful question is as to the power of the States or the United States to provide punishment for the breach of contracts for personal services. Various cases have been decided in the State and Federal courts with reference to this point. In general it may be said that the doctrine is established that statutes making criminal the mere breach of contract is void as in violation of the amendment; but that where such breach involves deliberate fraud, as for example, where prepayment for the services has been made and received, the law will be sustained, even though the effort, by intimidation, may be to compel the perform- ance of the promised services.” 56 In Slaughter House Cases, 16 Wall. 36; 21 L. ed. 394, it was held that servitude, though having a broader meaning than slavery, did not include the obligation to resort to a given corporation for the slaughtering of live stock, the obligation being imposed as an exercise of the State’s police power. In the Civil Rights Cases, 109 U.S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835, it was held that the denial to a person of admission to inns, theaters, public conveyances, etc., did not amount to involuntary servitude or “tend to fasten upon him any badge of slavery.” In Plessy v. Ferguson, 163 U.S. 537; 16 Sup. Ct. Rep. 1138; 41 L. ed. 256, a State law requiring separate accommodations for white and colored persons was declared not within the prohibitions of the amendment. In Robertson v. Bald- win, 165 U.S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715, certain pro- visions of Federal law providing for the arrest and return of deserting seamen, was held beyond the prohibitive effect of the Amendment. 57 See upon this whole subject, Bailey v. Alabama, 219 U.S. 219; 31 Sup. Ct. Rep. 145; 55 L. ed. 191. 332 PRINCIPLES OF CONSTITUTIONAL Law Equity courts would also undoubtedly feel themselves justified in issuing orders restraining servants from quitting work at a time that will endanger human life or limb, or, indeed, will cause unnecessary or irremediable pecuniary loss to the employer. Thus, for example, the train hands of a railway company might be forbidden to leave their employment before bringing their train to its destination, or at least to some station where additional hands might be obtained to operate the train.*8 58 Freund, Police Power, §§ 333, 452. Also, Toledo, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730; Arthur v. Oakes, 63 Fed. Rep. 310. CHAPTER XXXVI DUE PROCESS OF LAW Due process of law: Definition of By the Fifth Amendment the prohibition is laid upon the Federal Government that “no person shall be... . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” By the Fourteenth Amend- ment a similar prohibition with reference to the depriva- tion of life, liberty or property is laid upon the States. In almost every chapter of this treatise it has been necessary to discuss the meaning of these prohibitions with reference to the exercise of specific powers by the Federal or State governments. In the present chapter, therefore, the attempt will be made to determine simply the general intent and scope of the phrase “due process of law.” No complete and rigid definition of due process of law has been given by the Supreme Court. Indeed, it is questionable whether it is possible to give one. ‘‘Few phrases in the law are so elusive of exact apprehension as this,” the court declare in the recent case of Twining v. New Jersey, and add: “This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of de- cisions of cases as they arise.” 1211 U.S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97. 333 334 PRINCIPLES OF THE CONSTITUTIONAL In Hagar v. Reclamation District? it is said: “It is sufficient to say that by due process of law is meant one which, following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law, it must be adapted to the end to be attained, and whenever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justness of the judgment sought. The clause, therefore, means that there can be no proceeding against life, liberty, or property which may result in deprivation of either, with- out the observance of those general rules established in our system of jurisprudence for the security of private rights.” Due process of law thus requires the adjudicating court to have jurisdiction of both the parties and the subject- matter;? and that “the laws shall operate on all alike, and do not subject the individuai to an arbitrary exercise of the powers of government.”’* ‘If the laws enacted by a State be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence pre- scribes for the security of private rights, the harshness, in- justice, and oppressive character of such laws will not invalidate them as affecting life, liberty or property with- out due process of law.’’”” In large measure, the specific contents of the phrase “due process of law’ are to be ascertained by “‘an examina- tion of those settled usages and modes of proceedings existing in the common and statute law of England before 2111 U.S. 701; 4 Sup. Ct. Rep. 663; 28 L. ed. 569. 3 Pennoyer v. Neff, 95 U. 8. 714; 24 L. ed. 565. ‘ Giozza v. Tiernan, 148 U. 8. 657; 13 Sup. Ct. Rep. 721; 37 L. ed. 599. ® Mo. Pacifie Ry. Co. v. Humes, 115 U. 8. 512; 6 Sup. Ct. Rep. 110; 29 L. ed. 463. Law oF THE UNITED STATES 335 the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by hav- ing been acted on by them after the settlement in this country.” But this historical method of determining the meaning of the phrase is not to be exclusively resorted to, or when resorted to, the court to be concluded thereby. That is to say, the fact that a given procedure is not to be found accepted in English and prior American practice is not to be held as conclusively determining it not to be due process of law. If the procedure under examination can be shown to preserve the fundamental characteristics and to provide the necessary protection to the individual, which the Constitution was intended to secure, its novelty will not vitiate it.® Thus it has been held that, so long as the fundamental rights of litigants to a fair trial, as regards notice, opportu- nity to present evidence, etc., and adequate relief are pro- vided, the specific requirements of the Constitution are not violated. Congress has, as to these matters, a full discretion as to the form‘of the trial or adjudication, and the character of the remedy to be furnished. Further- more, the States not being bound by the Fifth, Sixth and Seventh Amendments, grand and petit juries may be dispensed with by them. So also, within limits, legisla- tures may determine what evidence shall be received, and the effect of that evidence, so long as the fundamental rights of the parties are preserved.’ No person has a vested right to a particular remedy. “The State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the quali- 6 Hurtado v. California, 110 U. 8. 516; 4 Sup. Ct. Rep. 111; 28 L. ed. 232. 7 Fong Yue Ting v. United States, 149 U. 8. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905, and authorities there cited. See also Adams v. New York, 192 U.S. 585; 24 Sup. Ct. Rep. 372; 48 L. ed. 575. 336 PRINCIPLES OF THE CONSTITUTIONAL fication that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution.’ Statutes of limitations, if reasonable, are not unconstitutional as a denial of property or contractual rights. The authorities as to this are so uniform and numerous as not to need citation. Due process of law does not require the provision of a right of appeal from a trial to a superior court;? nor is the exemption of one accused of crime from self-incrimination.!° It is not essential to due process of law that in criminal cases the accused shall be confronted at the time of trial with the witnesses against him. This is specifically re- quired by the Sixth Amendment in the Federal Courts, but in West v. Louisiana! it is held that the Fourteenth Amendment does not lay this obligation upon the States. It is not essential to due process of law that proceedings and adjudications, though admittedly of a judicial nature, shall be had in courts of law. It not infrequently hap- pens that administrative boards or officers in the discharge of their duties are compelled to consider and decide upon matters of a judicial character, and, provided an adequate opportunity is offered to the parties to appear and defend, due process of law is not denied by making the administra- tive determinations they reach conclusive and not open to further consideration in the courts, except, of course, as to the matter of the jurisdiction of the officers or boards 8 Brown v. New Jersey, 175 U. 8. 172; 20 Sup. Ct. Rep. 77; 44 L. ed, 119. 9McKane v. Durston, 153 U. 8. 684; 14 Sup. Ct. Rep. 913; 38 L. ed. 867; Pittsburgh Ry. Co. v. Backus, 154 U. S. 421; 14 Sup. Ct. Rep. 1114; 38 L. ed. 1031; Reetz v. Michigan, 188 U. 8. 505; 23 Sup. Ct. Rep. 390; 47 L. ed. 563. 10 Twining v. New Jersey, 211 U. 8. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97, 11194 U.S. 258; 24 Sup. Ct. Rep. 650; 48 L. ed. 965. Law or THE Unrrep States 337 in question, or as to whether adequate notice and opportu- nity to defend has been given the parties affected. In short, “due process is not necessarily judicial process.”!2 This subject is more fully discussed in a later chapter of this treatise. The mere failure to comply with certain formalities prescribed by a State law is not, without reference to what those formalities are, a denial of due process. ‘When, then, a State court has decided that a particular formality is or is not essential under a State statute, such decision presents no Federal question, providing always that the Statute as thus construed does not violate the Con- stitution of the United States by depriving of property without due process of law. This paramount requirement being fulfilled, as to other matters the State interpretation of its own law is controlling and decisive.” So also it has been held that due process of law does not protect the individual who, in obedience to an interpreta- tion given by executive officers to a statute, takes action which is later held by the courts to be unwarranted by that statute. Due process and substantive rights In the discussion thus far had as to the meaning of due process, only its procedural or adjective side has been emphasized. We turn now to examine in how far sub- stantial rights are secured to the individual by the process clauses. It is quite plain that the phrase due process of law is historically related to and derived from the phrase ‘‘per legem terrae’ of Magna Carta, and that the provisions of 2 Reetz v. Michigan, 188 U.S. 505; 23 Sup. Ct. Rep. 390; 47 L..ed. 563. See also Davidson v. New Orleans, 96 U. 8. 97; 24 L. ed. 616; Murray’s Lessee v. Hoboken Land Co., 18 How. 272; 15 L. ed. 372. 99 338 PRINCIPLES OF THE CONSTITUTIONAL that fundamental document were intended, and have since been treated as a limitation not upen the legislature but upon the executive and upon the courts. The provision per legem terre thus means in the English law that the in- dividual shall not be deprived of his life, liberty or property by arbitrary acts, unsupported by existing law, whether common or statutory, by the King or his courts. But that the law is subject to change at the will of Parliament is not and has not been doubted. The property rights of the individual were thus at the time of the adoption of our Constitution, and have since remained, subject to the plenary legislative power of Parliament. There is thus some historical ground for holding that, in the absence of explicit provision to the contrary, the due process clauses of the Federal Constitution were not intended as a re- straint, the one upon Congress, and the other upon the State legislatures. Upon the other hand, however, the general purpose of written constitutions in the United States, if not originally in all cases, has come to be quite different from that of the Magna Carta. In this country our written instru- ments of government and their accompanying Bills of Rights have for their aim the delimitation of the powers of all the departments of government, the legislative as well as the executive and the judicial, and it is therefore, quite proper to hold that the requirements of due process of law should not only prohibit executive and judicial officers from proceeding against the individual, except in conformity with the procedural requirements which have been mentioned in the earlier part of the chapter, but also operate to nullify legislative acts which provide for the taking of private property without compensation, or life or liberty without cause, or, in general, for executive or judicial action against the individual of an arbitrary or clearly unjust and oppressive character. Law or THE Unirep Stares 339 In 1869, in Hepburn v. Griswold," the Supreme Court took definitely the view that Congress was restrained by the due process clause of the Fifth Amendment. With reference to the inhibitions of the Fourteenth Amendment there was never any doubt that they re- strained the legislative power of the States. In C.,B. & Q. Ry. Co. v. Chicago” the court say in language leaving no room for doubt: “‘In our opinion, a judgment of a State court, even if it be authorized by statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment.” When, however, the complaint is merely that a State court has erroneously decided the facts of a case, all of the proceedings before it being regular and sufficient no. claim of a denial of due process can be set up.?® It being established, then, that the substantive rights of the individual are protected by the due process of law clauses, it becomes necessary to consider what these rights of life, liberty, and property are. Life The right of life requires no definition. Liberty Liberty and property are terms which have each re- ceived definitions broad enough to cause their connota- tions in very considerable measure to overlap. Thus in Allgeyer v. Louisiana” the court, defining liberty, say: 138 Wall. 603; 19 L. ed. 513. 4 Bx parte Virginia, 100 U. 8. 339; 25 L. ed. 676; Hurtado v. ‘ California, 110 U. S. 516; 4 Sup. Ct. Rep. 111; 28 L. ed. 232. 15 166 U. S. 226; 17 Sup. Ct. Rep. 581; 41 L. ed. 979. 16 Central Land Co. v. Laidley, 159 U. 8. 103; 16 Sup. Ct. Rep. 80; 40 L. ed. 91. 17165 U. 8. 578; 17 Sup. Ct. Rep. 427; 41 L. ed. 832. 340 PRINCIPLES OF THE CONSTITUTIONAL “The liberty mentioned in the Fourteenth Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the engagement of all of his faculties; to be free to use them in all lawful ways; to live and to work where he will; to earn his liveliltood by any lawful calling; to pursue any livelihood or avocation; and for that pur- pose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” With this definition of liberty may be compared the following definition, by the Supreme Court of Illinois, of property: “The right of property preserved by the Con- stitution,” say the court, “is the right not only to possess and enjoy it, but also to acquire it in any lawful mode, or by following any lawful industrial pursuit which the citi- zen, in the exercise of the liberty guaranteed, may choose to adopt. Labor is the primary foundation of all wealth. The property which each one has in his own labor is the common heritage. And as an incident to the right to acquire other property, the liberty to enter into contracts by which labor shall be employed in such way as the la- borer shall deem most beneficial, and of others to employ such labor, is necessarily included in the constitutional guaranty.’”’8 The foregoing definitions make it sufficiently plain that contractual rights, as a species of property rights, or as included within the definition of liberty, are fully pro- tected by the due process clauses. In Holden v. Hardy there is an explicit statement to this effect. - The manner in which the rights of property and of 8 Braceville Coal Co. v. People, 147 Ill. 66. Quoted by McGehee, Due Process of Law, 141. Law or THE Unitep States 341 liberty, including liberty of contract, are held subject to the exercise of such powers of the State as those of eminent domain, taxation, the regulations of occupations affected with a public interest, is considered passim throughout this treatise, and does not require specific treatment in this place. A special word with reference to the police powers is, however, needed. Police power defined One of the classic definitions of the police power is that of Chief Justice Shaw, given in his opinion in Common- wealth v. Alger. He says: “ We think it is a settled princi- ple, growing out of the nature of well-ordered civil society, that every owner of property, however absolute and un- qualified may be his title, holds it under the implied lia- bility that his use of it shall not be injurious to the general enjoyment of others having an equal right to the enjoy- ment of their property, not injurious to the rights of the community. All property in this Commonwealthis .... held subject to those general regulations which are neces- sary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoy- ment as shall prevent them from being injurious, and such reasonable restraints, and regulations established by law as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain,—the right of a government to take and appropriate private property whenever the pub- lic exigency requires it, which can be done only on con- dition of providing a reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and 342 PRINCIPLES OF THE CONSTITUTIONAL reasonable laws, statutes, and ordinances, either with penalties, or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and the sources of this power than to mark its boundaries, and prescribe the limits to its exercise.” In the police power of the State, which it has been held, is a right which State may not part with even by express contract, we thus have a general right upon the part of the public authority to abridge or destroy, with- out compensation, the property or contract rights of individuals and to control their conduct in so far as this may be necessary for the protection of the community against danger in any form, against fraud, vice, or economic oppression, or even for the securing of public convenience. In Noble State Bank v. Haskell,” the court declare: “It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing or strong and preponderant opinion to be greatly and im- mediately necessary to the public welfare.” The police power is not, however, without limits, or otherwise the prohibition as to taking of life, liberty or property without due process of law would be wholly shorn of its restraining force. It always lies within the power of the courts to hold void a law which, though enacted as a police measure, is not, in the opinion of the court, justified as such, and is therefore a taking of prop- erty or an abridgement of freedom without the process of law. Thus, in Lochner v. New York,” the court in holding void a State law regulating the number of hours that adult laborers might be employed in bake shops, 9919 U. S. 575; 31 Sup. Ct. Rep. 186; 55 L. ed. 341. 198 U. 8. 45; 25 Sup. Ct. Rep. 539; 49 L. ed. 937. Law or THE UNITED States 343 declared: “There is no reasonable ground for interfering with the liberty of person or the right of full control by determining the hours of labor in the occupation of a baker. . . . The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” In general it may be said that while, by a legitimate ex- ercise of the police power, the conduct of individuals and the use by them of their property may be regulated, or, in some cases, their property even destroyed, as for ex- ample, when a building is torn down to prevent the spread of a conflagration, the State is never justified in a direct taking of property for its own use, nor in ordering the transfer of property from one individual to another per- son. In Noble State Bank v. Haskell, Justice Holmes did, indeed, say that “an ulterior public advantage may justify a comparatively insignificant taking of private property for what is, in immediate purpose, a private use,” but, on motion for rehearing he took care to say he had not intended to give a new or wider scope to the police power, for that, in fact, in the case at hand, there had been no unconditional taking at all. The cases cited, he said, were to establish, ‘not that property might be taken for a private use, but that, among the public uses for which it might be taken, were, some which, if looked at only in their immediate aspect, according to the proximate effect of the taking, might seem to be private.” Equal protection of the laws The United States is not expressly forbidden by the 344 PRINCIPLES OF THE CONSTITUTIONAL Constitution to deny to anyone the equal protection of the laws, as are the States by the first section of the Four- teenth Amendment. It would seem, however, that the broad interpretation which the prohibition as to “due proc- ess of law’ has received is sufficient to cover very many of the acts which, if committed by the States, might be attacked as denying equal protection. Thus it has been repeatedly declared that enactments of a legislature ‘di- rected against particular individuals or corporations, or classes of such, without any reasonable ground for select- ing them out of the general mass of individuals or corpora- tions, amounts to a denial of due process of law as far as their life, liberty or property is affected. One of the requirements of due process of law, as stated by the Su- preme Court, is that the laws “operate on all alike, and so not subject the individual to an arbitrary exercise of the powers of government.” In Smyth v. Ames”! the authorities are reviewed, and from them the general conclusion drawn that a State law “establishing rates for the transportation of persons or property by railroad that will not admit of the carrier earning such compensation as under all circumstances is just to it and to the public, would deprive such carrier of his property without due process of law, and deny to it the equal protection of the laws.”’ Throughout. this case, indeed, the requirement of due process of law is treated as necessarily including equal protection within its scope. Obligations of contracts No specific inhibition is laid upon the Federal Govern- ment by the Constitution with reference to the impair- ment of the obligation of contracts. That government is, however, forbidden by the Fifth Amendment to de- prive persons of property without due process of law or to 1169 U.S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819. Law or Tue Unitrep Starrs 345 take private property for a public use without just com- pensation. In so far, then, as contract rights may be treated as property they are protected from direct impair- ment by Federal action. This was definitely declared, as we have earlier seen in the first legal tender decision of Hepburn v. Griswold.”? Contracts are not, however, protected from any in- direct impairment of their obligation when this incidentally results from the exercise by Congress of a legislative power constitutionally given it. Thus in Knox »v. Lee,?? with reference to the due process of law requirement of the Fifth Amendment, the court say: “That provision has always been understood as referring only to a direct ap- propriation and not to consequential injuries resulting from the exercise of lawful power. It has not been sup- posed to have any bearing upon or to inhibit laws that in- directly 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.” 228 Wall. 603; 19 L. ed. 513. 2312 Wall. 457; 20 L. ed. 287. See, also, Sinking Fund Cases, 99 U. 8. 700; 25 L. ed. 496. CHAPTER XXXVII PROHIBITIONS LAID UPON THE STATES The prohibitions upon State action imposed by the Federal Constitution are of two kinds: (1) those that arise from the fact that their exercise would be inconsistent with the powers possessed by the Federal Government; and (2) those specifically laid down in the Federal Constitu- tion. These limitations upon the powers of the States incidental to the general nature of the Federal Government and to the powers possessed by it are treated in their ap- propriate places in this treatise. In this chapter there will be considered the express limitations upon the States as enumerated in the Constitution. These are found in § X of Art. I, and in the Thirteenth, Fourteenth, and Fif- teenth Amendments. Various other clauses of the Constitution, as, for ex- ample, §§ I, II, and IV of Art. IV and Art. VI, by imposing specific obligations upon the States may be said to create corresponding limitations, but these are elsewhere con- sidered in this work. That the prohibitions of the first eight amendments, like those contained in § IX of Art. I of the Constitution relate exclusively to the Federal Government, and place no restrictions upon State actions has been uniformly held since the first declaration of the principle in Barron v. Baltimore. That the adoption of the Fourteenth did not operate to alter this doctrine has been pointed out 17 Pet. 243; 8 L. ed. 672. 346 Law or tHE UNITED States 347 in this treatise.” The specific prohibitions laid upon the States with reference to slavery and involuntary servitude, due process of law, and the equal protection of the laws, have been considered in the preceding chapter. Bills of credit The first clause of § X of Art. I of the Constitution de- clares that “no State shall... . emit bills of credit; [or] make anything but gold and silver coin a tender in payment of debts.” In Craig v. Missouri,® decided in 1830, the Supreme Court was for the first time called upon to determine squarely what constitutes a “bill of credit;” within the meaning of the constitutional prohibition. In this case was questioned the power of the State to issue certain interest bearing certificates, not declared legal tender, but receivable at the treasury or any of the loan offices of the State in discharge of taxes or payment of debts due to the State. Certain property of the State was pledged to their redemption, and the governor was authorized to negotiate a loan of silver or gold for the same purpose. These certifi- cates, it was provided, might be loaned to citizens of the State upon real estate or personal security. These certificates, the Supreme Court held, Justices Thompson, M’Lean and Johnson dissenting, to be bills of credit, and as such illegally emitted. In his opinion Marshall says: “To ‘emit bills of credit’ conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes, as money, which paper is re- deemable at a future day.” Having adverted to the characteristics of the certificates in question, their denominations,—from ten dollars to fifty cents—their receivability for taxes, etc., as indicat- VP. a1; 34 Pet. 410; 7 L. ed. 908. 348 PRINCIPLES OF THE CONSTITUTIONAL ing conclusively that they were intended and fitted for circulation as currency, the court overrules the conten- tion that they were not to be deemed bills of credit in the constitutional sense because not made legal tender. “The Constitution itself” it is declared “furnishes no countenance to this distinction. The prohibition is gen- eral. It extends to all bills of credit, not to bills of a particular description.” In the case of Briscoe v. Bank of Kentucky * was ques- tioned the power of the State to charter a bank, of which the State was the sole stockholder, with the power of issu- ing notes payable to bearer on demand designed to circu- late as money. The case was first argued just before the death of Chief Justice Marshall, and the issue of these notes by the bank was held to be, in effect, the issuance of bills of credit by the State itself. A rehearing being granted, however, and the case coming on for argument before the court presided over by Taney, the previous decision was reversed, and the notes held to be constitu- tionally issued. Justice M’Lean delivered the opinion of the court saying: “To constitute a bill of credit within the Constitution, it must be issued by a State, on the faith of the State, and be designed to circulate as money. It must be a paper which circulates on the credit of the State, and is so received and used in the ordinary business of life. The individuals or committee who issue the bill must have the power to bind the State; they must act as agents, and of course do not incur any personal responsibility, nor im- part, as individuals, any credit to the paper. These are the leading characteristics of a bill of credit, which a State cannot emit.” Continuing, the court deny that the notes of the bank were issued by the State, or that they contained a pledge 411 Pet. 257; 9 L. ed. 709, Law or tHe UnitTEp SratTes 349 of the credit of the State. The fact that the State was the exclusive stockholder of the bank was held immaterial. In Darrington v. Bank of Alabama® the doctrine of the Briscoe case was reaffirmed. In this case the State was not only the sole stockholder of the bank but had pledged its credit for the ultimate redemption of the notes. This, however, it was held, did not operate to transform the notes into state-emitted bills of credit for the reason that the bank had corporate property of its own which was primarily liable and sufficient for the payment of the notes. In the Virginia coupon case of Poindexter v. Greenhow® the court held that interest coupons cut from bonds is- sued by the State and made receivable by the State in payment of taxes due it, were not bills of credit. Though promises to pay money, and the credit of the State pledged therefor, and receivable by the State for taxes, the coupons were not issued or emitted as a circulating medium or paper currency. In Houston ete. Ry. Co. v. Texas’ a warrant drawn by State authorities in payment of an appropriation made by the legislature for a debt due by the State and payable upon presentation if there should be any funds in the treasury, was held to be not a bill of credit within the meaning of the constitutional prohibition. Ex post facto legislation By § X, Clause I of Art. I, the States are forbidden to pass any ex post facto law. The same prohibition is laid upon the Federal legislature by the third clause of § IX, and the force of this prohibition has been sufficiently con- sidered in the preceding chapter. 513 How. 12; 14 L. ed. 30. 6114 U.S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185. 7177 U.S. 66; 20 Sup. Ct. Rep. 545; 44 L. ed. 673, 350 PRINCIPLES OF THE CONSTITUTIONAL Equal protection of the law As in the case of due process of law, the requirement of the Fourteenth Amendment as to the equal protection of the law receives specific incidental consideration, through- out this treatise. It is, therefore, not necessary here to more than state the general meaning of the term. Shortly stated, the requirement is not that all persons (including corporations) shall be treated exactly alike, but that where a distinction is made there shall be a reason- able ground therefor—one based on administrative or political necessity or convenience, or on economic needs. Thus in the exercise of the States’ power of taxation or of police, or of the other powers, classifications of the per- sons or properties to be affected may be made. But, when such classifications are made, the laws must operate uni- formly upon all the members of each class. This subject is elsewhere particularly discussed in connection with the law of inheritance taxes and special assessments.® Corporations equally with natural persons are entitled to the protection of the clause.® But it is to be observed that as to foreign corporations, a State having the constitutional right to say whether a corporation not chartered by itself shall do business within its limits (interstate commerce excepted) the State may impose upon such corporations as conditions precedent _ to the enjoyment of the privilege, such special conditions as it may see fit. Perhaps the best general statement of the scope and in- tent of the provision for the equal protection of the laws is that given by Justice Field in his opinion in Barbier ». Connolly,”® in which, speaking for the court, he says: 8 P. 384. ® Pembina Silver Mining Co. v. Pennsylvania, 125 U. 8. 181; 8 Sup. Ct. Rep. 737; 31 L. ed. 650. 113 U.S. 27; 5 Sup. Ct. Rep. 357; 28 L. ed. 923. Law or THE UNITED STATES 351 “The Fourteenth Amendment in declaring that no State ‘shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,’ undoubt- edly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, and the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circum- stances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no differ- ent or higher punishment should be imposed upon the one than such as is prescribed to all for like offenses. But neither the Amendment, broad and comprehensive as it is, nor any other amendment was designed to interfere with the power of the State, sometimes termed the ‘police power,’ to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity.” Illustrative cases arising under the equal protection clause The enumeration of some of the specific applications which the requirement of equal protection of the laws has received will sufficiently illustrate its scope and intent. The provision of the Fourteenth Amendment guarantees to individuals and to corporations that they shall not by 352 PRINCIPLES OF THE CONSTITUTIONAL State law be excluded from the enjoyment of privileges which other persons and corporations similarly circum- stanced enjoy, or that they may not have imposed upon them burdens which others similarly circumstanced are freefrom. But no one is guaranteed that, in fact, through the fortuitous operation of a law, which in itself is not dis- criminative, a special burden may not be imposed, or the enjoyment of a privilege taken away. Thus for example, in Strauder v. West Virginia’! a State law was held in- valid which denied to members of the colored race the right to act upon juries, the court saying, ‘‘the law in the State shall be the same for the black as for the white; and all persons whether colored or white, shall stand equal be- fore the laws of the State.” But in Virginia v. Rives!” and other cases it is held that the fact that it happens that no negroes are in fact drawn upon juries, or vice versa, that no whites are so drawn, is not constitutionally objection- able, unless it affirmatively appear that the State officials intrusted with the administration of the law arbitrarily and with intent have given an unequal and discriminative effect to the law. The case of Yick Wo v. Hopkins’* involved the validity of an ordinance of the city of San Francisco which required all persons desiring to establish laundries in frame houses to obtain the consent of certain municipal officials. Here the law or ordinance was not upon its face discriminatory, but it was held void for the reason that it gave to the designated officials, ‘‘not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent not only as to places but as to persons,’’ and because the evidence 11100 U.S. 303; 25 L. ed. 664. 12100 U. S. 318; 25 L. ed. 667. Sce, also, Gibson v. Mississippi, 162 U.S. 565; 16 Sup. Ct. Rep. 904; 40 L. ed. 1075. 3 118 U. S. 356; 6 Sup. Ct. Rep. 1064; 30 L. ed. 220. Law or THE UNITED STATES 353 showed in fact ‘‘an administration directed so exclusively against a particular class of persons (the Chinese) as to warrant and require the conclusion that whatever may have been the intent of the ordinances so adopted, they are applied by the public authorities charged with their administration and thus representing the State itself, with mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the law which is secured to the petitioners as to all other persons by the broad and benign provisions of the Four- teenth Amendment.” The court then go on to declare the general doctrine: ‘‘Though the law be fair on its face, and impartial in appearance, yet, if it is applied and ad- ministered by public authority with an evil eye and un- equal hand so as to practically make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” The requirement as to the equal protection of the law does not operate to prevent the States from restricting the enjoyment of political privileges to such classes of their citizens as they may see fit. Classifications When there are reasonable economic or political or social reasons for doing so, certain occupations or indus-. tries, or even classes of persons may be selected out for special regulation or for the enjoyment of special privileges. Thus, for example, the practice of certain professions may be limited to persons of the male sex, or to those of a certain age, or to those possessing other qualifications that may reasonably be held to indicate a fitness for the pro- fession."4 14 In re Lockwood, 154 U.S. 116; 14 Sup. Ct. Rep. 1082; 38 L. ed. 929. D2 354 PRINCIPLES OF THE CONSTITUTIONAL Thus also, as proper police measures, the States are per- mitted to impose special restrictions and liabilities upon railway corporations. Special modifications of the com- mon-law doctrine of employers’ liability with reference to them have been upheld, as have laws placing the pre- sumption of negligence upon them when cattle have been killed by their trains, and laws making them responsible for fires kindled by sparks from their locomotives, though they may have taken every possible precaution to avoid such fires.!® However, in Gulf, etc., Ry. Co. v. Ellis! a State law was held void which imposed an attorney’s fee in addition to costs upon railway companies which should fail to pay certain claims within a certain time after presentation. Here the court held that there was no reasonable relation between the burden imposed and the peculiar character of the business done. In Missouri v. Lewis!’ the important principle was laid down that the equal protection clause of the Fourteenth Amendment does not prevent the application by a State of different laws and different systems of judicature, to its various local subdivisions. Equal protection requires similar but not the same privileges Where similar or substantially similar conveniences and 15 St. Louis, etc., Co. v. Mathews, 165 U. S. 1; 17 Sup. Ct. Rep. 243; 41 L. ed. 611; Mo. Pacific Ry. Co. v. Mackey, 127 U.S. 205; 8 Sup. Ct. Rep. 1161; 32 L. ed. 107. 16165 U. S. 150; 17 Sup. Ct. Rep. 255; 41 L. ed. 666. See, also, Connolly v. Union Sewer Pipe Co., 184 U.S. 540; 22 Sup. Ct. Rep. 431; 46 L. ed. 679; Magoun »v. Illinois T. & S. Bank, 170 U. S. 283; 18 Sup. Ct. Rep. 594; 42 L. ed. 1037. As to classifications of property for purposes of taxation, see Bell’s Gap, etc., v. Pennsylvania, 134 U. 8. 232; 10 Sup. Ct. Rep. 533; 33 L. ed. 892; Plumber ». Coler, 178 U.S. 115; 20 Sup. Ct. Rep. 829; 44 L. ed. 998. > 7101 U.S. 22; 25 L. ed. 989. Law oF THE UNITED StaTEs 355 comforts are offered, transportation companies, inns, theatres, and other public service companies may by law be permitted or required to provide separate accommoda- tions to the different races, colored, Mongolian or white. In Plessy v. Ferguson® the court say: ‘‘The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law; and in the nature of things it could not have been intended to abolish distine- tions based on color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, or even requiring their separation where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been gener- ally, if not universally, recognized as within the compe- tency of State legislatures in the exercise of their police powers. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exer- cise of the police power; even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.” 18 163 U. 8. 537; 16 Sup. Ct. Rep. 1188; 41 L. ed. 256. CHAPTER XXXVIII THE OBLIGATION OF CONTRACTS The obligation of contract clause In addition to being prohibited by the Fourteenth Amendment from depriving any person of life, liberty or property, without due process of law, the States are, by § X, Art. I of the Constitution, expressly denied the power to pass any law impairing the obligation of contracts. This provision, the general intent of which is sufficiently plain, has in its application given rise to a multitude of cases re- quiring adjudication in the courts. The purpose of this treatise will not require us, however, to examine these cases in detail. Elsewhere in this treatise, certain specific applications of the prohibition are considered.! In this chapter the aim will be, as it was the aim in the chapter dealing with due process of law, to ascertain the broad and underlying principles which have governed the Federal courts in the enforcement of the prohibition. As has been already seen, the due process of law clause of ‘the Fourteenth Amendment protects the individual in his right to enter into contracts not contrary to public policy. The provision under consideration protects from impairment the obligation of the contract when entered into. So far as this provision is concerned, a State law di- vesting vested rights is not invalid, unless these rights are 1 Chapter XLV, Suits Against the States. 356 Law oF THE Unrtep Stares 357 founded upon contracts, and the effect of the law is thus to impair or nullify their force.” The obligation of a contract is not impaired by a law which changes the legal or equitable means for its enforce- ment, existing at the time it was entered into, provided an adequate though not so convenient a remedy is retained or substituted therefor. The principle in this effect is thus similar to that discussed in connection with the due process of law clause. Laws which operate to remedy or cure technical defects so as to give validity to otherwise invalid contracts are constitutional, their effect being to confirm rather than to impair the obligation of contracts.’ Elsewhere in this treatise it is pointed out that, to a certain extent, the States’ right of taxation may, in return for a substantial consideration, be parted with. When thus parted with, the undertaking not to exercise the right in the manner specified constitutes a contract, the obli- gation of which is impaired by a subsequent law author- izing its exercise. The clause thus operates as a limitation upon the taxing power of the States. As to the police power of the State, as will be presently shown, the rule is otherwise. No State, it has been held, may validly contract not to exercise in the future a power which is necessary to the health, safety, comfort or morality of its citizens. The contracts, the obligation of which is secured from impairment by the States, include agreements between the States and between a State and an individual or individ- uals, as well as those between individuals. In other words, the State when contracting does so upon the same terms as a private individual or corporation, and may not plead 2 Satterlee v. Matthewson, 2 Pet. 380; 7 L. ed. 458; Bronson v, Kinzie, 1 How. 311; 11 L. ed. 143. 3 Watson v. Mercer, 8 Pet. 88; 8 L. ed. 876. 358 PRINCIPLES OF THE CONSTITUTIONAL its sovereignty as justifying subsequent action upon its part impairing the contractual obligations which it has assumed. Its non-amenability to suit may, however, enable a State to avoid the performance of an agreement which it has undertaken to perform. This branch of the subject is more fully discussed in the chapter of this treatise dealing with the suability of the State. What constitutes a contract Election or appointment to a public office does not create a contract between the State and the one so appointed.‘ Marriage, though in some respects properly describable as a contract, is not a contract in the sense that its ob- ligation is protected from impairment by the State.® A license granted by a State, or by one of its political sub-divisions, is not a contract within the meaning of the prohibition. It is nothing more than the grant of a priv- ilege which, so far as the Federal prohibition regarding the impairment of the obligation of contracts is concerned, may be revoked at any time at the will of the grantor, or its continued enjoyment made dependent upon new and more onerous conditions. This principle is so well settled that a citation of authorities is scarcely needed. The only difficulty lies in determining in specific cases whether the grant of authority by the State is in the nature of a license or of a franchise, which is to be construed as a contract. However, the presumption is always against the existence of a contract. “A contract binding the State is only created by clear language and not to be extended by im- plication beyond the terms of the statute.” Generally speaking, the right of a foreign corporation 4 Butler v. Pennsylvania, 10 How. 402; 13 L. ed. 472. 5 Maynard »v. Hill, 125 U.S. 190; 8 Sup. Ct. Rep. 723; 31 L. ed. 654. 6 Williams v. Wingo, 177 U. 8. 601; 20 Sup. Ct. Rep. 793; 44 L. ed. 905. i Law oF THE UnrtEep States 359 to do business within a State is in the nature of a license which the State may revoke or modify at discretion. Where, however, the foreign corporation, relying upon an existing law to the effect that certain charges will not, for a certain period at least, be imposed upon it, has entered the State for the transaction of business there, a contract to that effect is held to exist between it and the State, the obligation of which the latter may not impair.” Charters of public corporations The charters of public corporations, investing them with subordinate legislative and other governmental powers are not contracts within the meaning of the obligation clause, and, so far as the Federal Constitution is concerned, the State legislature has, with reference to them, unlimited powers of amendment or repeal.’ Where, however, municipalities or other subordinate political corporations have, in the exercise of their charter powers, entered into contracts, those contracts are pro- tected from subsequent impairment by State law.2 Any law which withdraws or limits the remedies for the en- forcement of such municipal contracts is void.” Generally speaking, also, franchises granted by munici- pal corporations, if authorized by their charters, are con- tracts which, under the authority of the Dartmouth College case, presently to be considered, are protected against impairment. So, also, a State law limiting the powers of taxation of a municipal corporation, whereby its ability to pay its debts 7Am. Smelting Co. v. Colorado, 204 U. 8. 103; 27 Sup. Ct. Rep. 198; 51 L. ed. 393. 8 Laramie Co. v. Albany Co., 92 U.S. 307; 23 L. ed. 552. 9 New Orleans v. New Orleans Waterworks Co., 142 U. 8. 79; 12 Sup. Ct. Rep. 142; 35 L. ed. 943. 10 Mobile v. Watson, 116 U. S. 289; 6 Sup. Ct. Rep. 398; 29 L. ed. 620. 360 PRINCIPLES OF THE CONSTITUTIONAL is materially lessened, is void as to debts created prior thereto, the creditors relying upon the taxing powers of the corporation to provide the funds for the payment of their claims."4 So, also, generally, it is held to be an impairment of the obligation of contracts entered into by municipal corpora- tions to deprive them by subsequent State legislation of any authority whatsoever whereby they may be rendered less able to perform their agreements, or whereby the en- forcement by creditors of their claims against them is rendered more difficult or less certain. Charters of private corporations are contracts: The Dart- mouth College case In 1819 in the Dartmouth College case!” a charter of a private corporation was held to be a contract between the State granting it and the corporation, which the former might not impair by subsequent legislation. Prior to this decision it had been held in Fletcher v. Peck," decided in 1810, that the obligation clause applied to executed as well as to executory contracts, and to contracts entered into by the States as well as to those entered into by pri- vate individuals. This fundamental doctrine that the charter of a private corporation is a contract which, under the obligation clause, a State may not impair by legislation, though it has been ‘much criticized, has never been departed from by the Supreme Court. In practical operation, however, its force has been much weakened not only by a very gen- eral practice upon the parts of the States, when granting 1 Wolff v. New Orleans, 103 U. S. 358; 26 L. ed. 395; Seibert v. Lewis, 122 U.S. 284; 7 Sup. Ct. Rep. 1190; 30 L. ed. 1161; Louisiana v. New Orleans, 215 U. 8. 170, 30 Sup. Ct. Rep. 40; 54 L. ed. 144. ” Dartmouth College v. Woodward, 4 Wh. 518; 4 L. ed. 629. 186 Cr. 87; 3 L. ed. 162. Law oF THE UNITED STATES 361 charters, to reserve the right to amend or revoke them, but by later decisions of the courts with reference to the strictness with which the contractual elements of corporate charters are construed, and to the power of the States in the exercise of their police powers, their power of eminent domain, and their authority to control public service cor- porations, or corporate concerns affected with a public interest, to disregard even those charter rights which a strict construction shows to have been granted. ' Charter grants strictly construed With reference to the strictness with which charter grants are to be construed the courts have laid down the doctrine that the State is to be held to have granted only such powers or immunities as are specifically or unequivo- cally stated, or as are necessarily or unavoidably implied therein. In Northwestern Fertilizing Co. v. Hyde Park"4 the court say: “The rule of construction in this class of cases is that it shall be most strongly against the corpora- tion. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim.” The police power and the obligation of contracts The extent of the power of the States in the exercise of their police powers to control the operations of domestic 497 U.S. 659; 24 L. ed. 1036. 15 See also Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420; 9 L. ed. 773; Knoxville Water Co. v. Knoxville, 200 U. S. 22; 26 Sup. Ct. Rep. 224; 50 L. ed. 353. As to the power of the States to bind themselves by charter contracts with reference to the reg- ulation of the rates to be charged by public service corporations, see Railway Commission Cases, 116 U. 8. 307; 6 Sup. Ct. Rep. 334; 29 L. ed. 636. 362 PRINCIPLES OF THE CONSTITUTIONAL corporations as well as the strictness with which the char- ter grants are to be construed, is exhibited in the cases of the Northwestern Fertilizing Co. v. Hyde Park,'® decided in 1878, and of Stone v. Mississippi,!” decided in 1880, the court, in the latter case saying: ‘The question is, there- fore, directly presented, whether, in view of these facts, the legislature of a State can, by the charter of a lottery company, defeat the will of the people, authoritatively expressed, in relation to the further continuance of such business in their midst. We think it cannot. No legis- lature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require .. . . The contracts which the Constitution protects are those which relate to property rights, not governmental.” Tax exemptions Arguing from the fact that all charter contracts are presumed to be entered into with a knowledge and consent that they are, in their performance, subject to a legitimate exercise of the police power, the doctrine was early ad- vanced that they are similarly subject to the State’s tax- ing power, that, in ofher words, the power to tax is as necessarily and inherently a sovereign power of the State and may not be bartered away, or its exercise in any way estopped. The courts have held, however, that this is notso. In many cases, though not without hesitation and against minority protests, exemptions from taxation granted by the State in return for some conceived sub- stantial guid pro quo have been held contracts that might 1697 U.S. 659; 24 L. ed. 1036. 7101 U.S. 814; 25 L. ed. 1079. Law or THE Unrrep SraTss 363 not hereafter be impaired. Such exemptions are, how- ever, construed, it need not be said, with extreme strict- ness. ® When, however, the States and their political sub- divisions have endeavored to use their taxing power as an indirect means of avoiding explicit contract obligations, the Supreme Court has not hesitated to interpose its veto. Indeed, the court has said that attempted taxation has been the mode most frequently employed for the impair- ment of contracts.” Construction of contracts Under the obligation clause no general power is given to the Federal Supreme Court to review the decisions of State courts as to the proper construction to be given to the terms of a subsisting contract, or as to the validity of a contract. In other words no claim as to the impairment of the obligation of a contract can be predicated simply upon the assertion that a State court has erred in its judgment as to the meaning or validity of a contract. It is thus only when there is a claim that there has been some law enacted and applied which operates to impair the obligation of a contract previously entered into, that the Federal question may be raised that the prohibition of the Constitution has been violated. - The meaning to be given to any State law is primarily to be determined by the State courts, and, so long as only a question of State constitutional law is concerned, the meaning thus given is conclusive upon the Federal courts. Thus, when a State statute is alleged to impair the obli- gation of a contract it is not the duty of the Federal Su- 18 See especially the language of the court in Stone v. Mississippi, 101 U. S. 814; 25 L. ed. 1079. See, also, Chicago Theological Semi- nary v. Illinois, 188 U. S. 662; 23 Sup. Ct. Rep. 386; 47 L. ed. 641. 19 Murray v. Charleston, 96 U. S. 432; 24 L. ed. 760. 364 PRINCIPLES OF THE CONSTITUTIONAL preme Court itself to construe the act and then to deter- mine whether, as thus construed, it impairs the obligation of a contract; rather, its duty is to take the act as construed and applied by the courts of the State, and, upon that basis, to determine whether or not the obligation of con- tracts is impaired. The logic of this doctrine is apparent. Whatever may be the literal terms of a State law, if, in fact, it is not so construed by the State authorities as to work an impairment of contracts the inhibition of the obligation clause cannot be said to be violated.” The rule is, however, well established that the Federal Supreme Court will determine for itself, that is, by its own independent judgment, whether or not that which is alleged to be a contract, is in truth a contract when the claim is set up that it has been impaired by a State law. That is to say, the Federal tribunal does not hold itself bound by the decision of a State court which escapes from the application of the obligation clause by holding that the contract, the impairment of which is alleged, is not, in fact a contract.” This doctrine is, of course, applicable not only to the construction of instruments which, it is claimed, constitute contracts between individuals, but also to State laws which, it is alleged, amount to contracts on the part of the ‘States. There has been no serious denial of this from the time of the early case of Fletcher v. Peck, in which it was held that the inhibition of the obligation clause applies as well to contracts on the part of the States as to those between private individuals. Furthermore, the Supreme Court will exercise its own independent judgment as to the constitutionality of a State law as tested by the State constitution, when the *° Lehigh Water Co. v. Easton, 121 U. 8. 388; 7 Sup. Ct. Rep. 916; 30 L. ed. 1059. 1 Jefferson Branch Bank v. Skelly, 1 Black. 436; 17 L. ed. 173. Law or THE UnitTep States 365 law is one which in itself constitutes a contract on the part of the State or supplies the legal basis for the contract which, it is alleged, is impaired by a later law.” Force of State decisions In passing upon decisions of State courts overruling their own prior decisions and thereby holding invalid con- tracts entered into in reliance upon such prior decisions, there is a sharp distinction drawn by the Supreme Court between those cases in which the cause comes before the Federal courts because of the citizenship of the parties thereto, and thence by appeal to the Supreme Court, and those coming to it by writ of error to the highest State courts. In the latter class of cases the only ground of Federal jurisdiction is that the obligation of a contract has been impaired; that, in other words, a right guaranteed by the Federal Constitution has been violated. In McCullough v. Virginia,”* as in an unbroken line of previous cases, the members of the Supreme Court have all agreed that Fed- eral jurisdiction exists only in case the decision of the State court appealed from has given effect to a State legislative act impairing a contract previously entered into.”* In those cases coming to the Federal Supreme Court by way of appeal from a lower Federal court, however, there is no question of Federal jurisdiction, and in them, the Federal courts determine for themselves which, if any, of the decisions of the State courts dealing with the State laws or with principles involved they will follow. 22 State Bank v. Knoop, 16 How. 369; 14 L. ed. 977; Ohio Life Ins. Co. v. Debolt, 16 How. 416; 14 L. ed. 997; McGahey »v. Virginia, 135 U.S. 662; 10 Sup. Ct. Rep. 972; 34 L. ed. 304. 23172 U. S. 102; 19 Sup. Ct. Rep. 134; 43 L. ed. 382. 24 In McCullough »v. Virginia there was disagreement as to whether or not the decision of the State court had given effect to a later statute. 366 PRINCIPLES OF THE CONSTITUTIONAL In this class of cases, the Federal jurisdiction of which is based upon the diversity of citizenship of the parties thereto, the doctrine is well established that where a State court has reversed its ruling as to the State law governing a case, the Federal courts will not follow the later decision, when to do so will make it necessary to hold void or to impair the obligation of contracts previously entered into. In other words, the first construction is treated as though it becomes a part of the law or constitutional provision, and the latter and differing construction as a law in amend- ment or appeal thereof.2> It may, however, be observed that the courts would have found themselves in fewer logical and constitutional difficulties if they had decided these cases without any reference to the obligation of contracts clause, and solely upon the ground that they had the power, in suits between citizens of different States, to exercise an independent judgment as to when it is proper for them to follow the decisions of the State courts with reference to the construction of State laws. This subject is more fully treated in a later chapter. Originally the Supreme Court went only so far as to protect a contract entered into under a law which had previously been held valid by the State courts, 4s against a later decision holding the law unconstitutional and void. Of late, however, the court has taken the further step of protecting contracts entered into under a law before its constitutionality has been upheld in the highest courts of the State, the argument being that a State legislative act is, even in advance of judicial affirmation, presumptively valid, and, therefore, a later ruling of the court to the effect that the law is invalid, operates to impair or destroy the obligation of the contracts which those entering into them * Burgess v. Seligman, 107 U. S. 20; 2 Sup. Ct. Rep. 10; 27 L. ed. 359; Gelpcke v. Dubuque, 1 Wall. 175; 17 L. ed. 520. Law oF THE UNITED STATES 367 have a right, at the time, to believe are legally enforceable agreements. : In these cases it is to be observed that the doctrine of the Supreme Court is not only to hold that the obligation clause warrants a refusal upon the part of the Federal courts to follow the constructions given by State courts to their own State laws, but also to hold that a judicial decision is a “law’’ within the meaning of the provision of the Federal Constitution that no State shall “pass any law impairing the obligation of contracts.’ % See especially Great Southern Fire Proof Hotel Co. v. Jones, 193 U. S. 532; 24 Sup. Ct. Rep. 576; 48 L. ed. 778, in which the authorities are carefully reviewed. CHAPTER XXXIX CONSTITUTIONAL LIMITATIONS UPON THE TAXING POWERS OF THE STATES Constitutional provisions The Constitution lays but one important express limita- tion upon the States with reference to the exercise of their taxing powers. This is that “no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing the inspection laws; and the net produce of all duties and imposts, laid by any State on imports or ex- ports, 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.” But other clauses of the Constitution restricting gener- ally the powers of the States operate to limit their powers of taxation. Thus, for example, influential in this respect are the provisions that no State shall deprive any person of property without due process of law or deny to any per- son within its jurisdiction the equal protection of the laws; that no State shall pass any law impairing the obligation of contracts; and that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Also there are the implied limitations that no State shall so use its taxing powers as to interfere with the operation of Federal agencies; and that, being unable to give an extra-territorial effect to its laws, no State may tax property not within its jurisdiction. The limitations imposed upon the taxing powers of the States by the “comity” clause are elsewhere discussed 368 Law oF THE UNITED STATES 369 in this treatise. It may, however, be here said that, in general, the clause operates to prevent a State from bur- dening citizens of other States within its borders with heavier taxes than those laid upon its own citizens. This applies not only to the property of non-citizens, but to the business that they may carry on. State taxation of Federal governmental agencies The successful maintenance of a Federal government, under any circumstances a most difficult task, is an espe- cially difficult one in the United States where Federal func- tions are exclusively performed by Federal organs and agencies, and State functions by State organs and agents. This has necessitated the maintenance of a complete machinery of government for the United States, and sim- ilarly, 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 Federal 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 constitu- tional limits reserved to the States. Illustrations of these general principles will appear throughout this treatise. Their scope and significance are, however, especially ex- hibited in their application to the Federal and State taxing power, and to a discussion of this special 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 and for all by the decisions of the Supreme Court in McCulloch v. Maryland.! This case was all the 14 Wh. 316; 4 L. ed. 579. See, also, Osborn v. Bank of United States, 9 Wh. 738; 6 L. ed. 204, 24 370 PRINCIPLES OF THE CONSTITUTIONAL stronger in that the Federal agency, with whose activity it was alleged that Maryland had attempted to interfere by taxing it, was an agency neither essential to the National Government nor expressly provided for by the Constitu- tion. The power to establish a National Bank was at most only an implied one, and, in fact, its constitutionality was very widely denied, and, years after this, a bill pro- viding for the establishment by the National Government of a similar institution was vetoed by President Jackson upon the ground of its unconstitutionality. But in this case Maryland had not only denied the constitutionality of the bank but had taken the position that, even were it constitutional, she had, under the: general power reserved to her of taxing all occupations carried on within her terri- torial limits, the right to tax such branches of the bank as might be located within her borders. Thus, in this case, the State of Maryland did not claim that she might directly and deliberately interfere with a Federal law, but that the exercise by her of an otherwise legitimate author- ity could not be declared unconstitutional simply upon the ground that, indirectly, or by remote possibility, its effect was, or might be, to interfere with the exercise of a legiti- mate Federal power. In other words, Maryland 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 be subordinated to the merely indirect interests of the Union. This position the Su- preme Court declared an invalid one. 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 tax, upon the operations of the Federal bank. Law or THE Unrrep States 371 In the Maryland case Chief Justice Marshall said: ‘‘The opinion does not deprive the State of any resources which it originally possessed. It does not extend to the tax paid by the real property of a 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 R. Co.,? in which it was held, that in the absence of any legislation of Congress direct- ing otherwise, the property of a railroad company, char- tered by a State, but performing Federal services, might be taxed by the State. Chief Justice Chase speaking for a unanimous court said: ‘‘We think there is a clear dis- tinction between the means employed by the government and the property of agents 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.” In Thomson v. Union Pacific R. Co., the railroad com- pany concerned, although performing Federal services, was chartered by the State. In Union Pacific R. Co. »v. Peniston,® the same doctrine was applied to a company chartered by Congress. This fact, it was held, did not take the case out of the rule laid down in earlier cases. In Owensboro National Bank v. City of Owensboro * 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 waived this immunity. This doctrine would be in opposition to 29 Wall. 579; 19 L. ed. 792. *18 Wall. 5; 21 L. ed. 787. See, also, National Bank v. Common- wealth, 9 Wall. 353; 19 L. ed. 701. 4173 U.S. 664; 19 Sup. Ct. Rep. 537; 43 L. ed. 850. 372 PRINCIPLES OF THE CONSTITUTIONAL that declared in Union Pacific R. Co. v. Peniston 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 en- terprises, but performing inter alia Federal services. 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 the States upon their exercise.° 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. Of course no State may, in the exercise of its police or other powers, in any way discriminate against patented articles. Where, by Federal license, an occupation has been authorized by the United States, enjoyment and em- ployment of the license may not be restricted by a State.” That the salary or other emoluments of office of Federal officials may not be taxed by the States has not been 5 California v. Central Pacific Ry. Co., 127 U. 8S. 1; 8 Sup. Ct. Rep. 1073; 32 L. ed. 150. 6 Crown Cork & Seal Co. v. Maryland, 87 Md. 687; People ». Roberts, 159 N. Y. 70. See, also, Webber v. Virginia, 103 U. 8. 334; 26 L. ed. 565; Allen v. Riley, 203 U. S. 347; 27 Sup. Ct. Rep. 95; 51 L. ed. 216; and Ozan Lumber Co. v. Union Co. Nat. Bank, 145 Fed. 344, 7 Moran v. New Orleans, 112 U. 8. 69; 5 Sup. Ct. Rep. 38; 28 L. ed. 653; Harman v. Chicago,,147 U. 8S. 396; 13 Sup. Ct. Rep. 306; 37 L. ed. 216. Law OF THE Unirep STATES 373 questioned, since the doctrine was first declared in Dob- bins v. Commissioners.® 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 affrmation until 1885 in Van Brocklin v. Tennessee.’ Prior to this decision it had been quite generally 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 prop- ‘erty of the United States should be exempt from State taxation. The effect of the decision of Van Brocklin ». 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 non- payment of direct taxes levied by an act of Congress and not expressly ceded by the States, was held immaterial. In Wisconsin C. R. Co. v. Price County © the doctrine of Van Brocklin v. Tennessee was reaffirmed and broad- ened so as to include not only taxation by the State but by any of its administrative subdivisions. 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 bor- rowing power of the National Government. This was 216 Pet. 435; 10 L. ed. 1022. 9117 U.S. 151; 6 Sup. Ct. Rep. 670; 29 L. ed. 845. 10133 U. S. 496; 10 Sup. Ct. Rep. 341; 33 L. ed. 687. 374 PRINCIPLES OF THE CONSTITUTIONAL early decided in Weston v. Charleston. “The tax on government stock,’ said Marshall who rendered the opin- ion 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.” In Banks v. The Mayor? the attempt to make a dis- tinction between the bonds of the government issued for loans of money and certificates of indebtedness given in payment for supplies purchased, and to hold the latter subject to taxation by the States, was defeated by the court. So also in Bank v. Supervisors,!* United States notes issued under the acts of 1862 and 1863 were held exempt from State taxation. In Bank of Commerce v. Commissioners™ stock of the United States constituting a part or the whole of the capi- tal stock of a State bank was held not subject to State taxa- tion, the fact that the tax was on the aggregate of the tax- payer’s property and not upon the stock by name being held immaterial. So also in the Bank Tax Case a State tax on a valuation equal to the amount of 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 Moines "* it was held that a State statute directing that shares of stock of State banks should be 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 such property represented 112 Pet. 449; 7 L. ed. 481. 127 Wall. 16; 19 L. ed. 57. 137 Wall. 26; 19 L. ed. 60. 142 Black. 620; 17 L. ed. 451. 15 2 Wall. 200; 17 L. ed. 793. 16 205 U. 8. 503; 27 Sup. Ct. Rep. 571; 51 L. ed. 901. Law oF THE UNITED States 375 Federal securities, violated the immunity of such securities from State taxation. 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 stock constitutes a part of the assets of the institution.!” So also in Home Insurance Co. v. New York® 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 dividends 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 com- pany, 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 company. 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 the company, but upon its cor- porate 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.” Incomes derived from interest on Federal securities, are exempt from State taxation. This was held with reference to the exemption from Federal taxation of in- comes derived from State securities, and the same reason- ing would of course exclude from State taxation incomes derived from Federal securities.” 1 Society for Savings v. Coite, 6 Wall. 611; 18 L. ed. 907. 18 134 U.S. 594; 10 Sup. Ct. Rep. 593; 33 L. ed. 1025. 19 Van Allen v. Assessors, 3 Wall. 573; 18 L. ed. 229; Palmer v. MeMahon, 133 U. S. 660; 10 Sup. Ct. Rep. 324; 33 L. ed. 772. 2” Pollock v. Farmers’ L. & T. Co., 157 U.S. 429; 15 Sup. Ct. Rep. 673; 39 L. ed. 759. 376 PRINCIPLES OF THE CONSTITUTIONAL Congress, by an act approved August 13, 1894, has pro- vided that ‘‘circulating notes of national banking associa- tions 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] taxation as money on hand or on deposit.’ Bequests to the United States may be subjected to State inheritance taxes, the courts, both State and Fed- eral, holding the tax to be not upon the property be- queathed, but upon its transmission by will or by descent. “The legacy becomes the property of the United States only after it has suffered a diminution to the amount of the tax, and it is only upon this condition that the State legislature assents to a bequest of it.” ?” Further, in Plumber v. Coler,?* it was held that a State inheritance tax might be collected upon a bequest con- sisting of United States bonds issued under an act of Congress especially declaring them to be exempt from State taxation in any form. In Murdock v. Ward it was held that a similar bequest of Federal securities was not ex- empt from the inheritance tax imposed by the War Rev- - enue Act of Congress of 1898. By act of June 3, 1864, certain powers of taxation with reference to national banks were given by Congress to the States. This permission now constituting § 5219 of the Revised Statutes measures the entire extent of the State’s power of taxation with reference to the national banks. This Federal act has been construed to operate not as a *1 For construction of this permission, see Hibernia Savings & Loan Soc. v. San Francisco, 200 U. S. 310; 26 Sup. Ct. Rep. 265; 50 L. ed. 495. 22 United States v. Perkins, 163 U. 8. 625; 16 Sup. Ct. Rep. 1073; 41 L. ed. 287. 23178 U.S. 115; 20 Sup. Ct. Rep. 829; 44 L. ed. 998. Law oF THE Unritep SratTsEs 377 grant by the United States to the States of a power not previously possessed, but as a removal by Congress of a hindrance to the exercise by the States of a power inherent in them.*4 Federal taxation of State agencies Correlative to the implied limitation upon the States with respect 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 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. But in Veazie Bank »v. Fenno * the Federal Government, in the exercise of its constitutional powers to control the currency, was per- mitted to tax out of existence the notes of State banks, al- though it was not denied that the States had the consti- tutional power to charter the banks. 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 2 franchise granted by the State, and as such uncon- stitutional. The court held that, in fact, the tax was not 24 Van Allen v. Assessors, 3 Wall. 573; 18 L. ed. 229. 23 Calif. v. Pac. R. R. Co., 127 U. S. 1; 8 Sup. Ct. Rep. 1073; 32 L. ed. 150. % 8 Wall. 533; 19 L. ed. 482. In Ex parte Rapier, 143 U. S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93, it was held that the fact that a lottery company was chartered by a State did not operate to prevent the Federal Government from excluding its tickets from the mails. 378 PRINCIPLES OF THE CONSTITUTIONAL 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 rights 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 Congress. But it cannot be admitted that franchises granted by a State are necessarily exempt from taxation; for franchises are property, often very valuable and productive 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.” Finally, in the Federal Corporation Tax Case of Flint v. Tracy Co.,”” the court directly applied this obiter doc- trine with reference to an excise tax levied upon all cor- porations with respect to the carrying on or doing business by them. After a review of earlier adjudications the court say: ‘We therefore reach the conclusion that the mere fact that the business taxed is done in pursuance of authority granted by a State in the creation of private corporations does not exempt it from the exercise of Federal authority to levy excise taxes upon such privilege.” The Supreme Court has not, however, permitted this principle of the supremacy of the Federal Government to authorize the National Government, by taxation or other- wise, to interfere with the States in the exercise of their governmental rights, except in so far as such interference is necessary for the exercise of a Federal power.” In the case of Collector v. Day * it was held that the 27 220 U. 8. 107; 31 Sup. Ct. Rep. 342. 8 Lane Co. v. Oregon, 7 Wall. 71; 19 L. ed. 101. 2911 Wall. 113; 20 L. ed. 122. Law or THE UNITED StTatTEs 379 Federal Government could not levy an income tax upon the salaries of State officials. The court go on to point out that the alleged Federal right that was involved, so far from being similar to that sustained in Veazie Bank 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. In Mercantile Nat. Bank v. New York* it was decided that the United States might not tax bonds issued by a State or by one of its municipal bodies, under its authority, and held by private corporations. In the Income Tax case*! it was held that a Federal tax might not be levied on income derived from municipal bonds. In Ambrosini v. United States ** the court held that bonds given to secure the proper enforcement of State laws in respect to the sale of intoxicating liquors, were not sub- ject to Federal taxation. An interesting case of recent date bearing upon the right of the Federal Government, by taxation or otherwise, to interfere with State governmental operations is that of the State of South Carolina v. United States,** decided in 1905. In this case was questioned the right of the Federal Government to levy internal revenue taxes upon intoxicat- ing liquors sold under the State dispensary 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 % 121 U.S. 138; 7 Sup. Ct. Rep. 826; 30 L. ed. 895. 31 Pollock v. Farmers’ L. & T. Co., 157 U. 8. 429; 15 Sup. Ct. Rep. 673; 39 L. ed. 759. 32187 U.S. 1; 23 Sup. Ct. Rep. 1; 47 L. ed. 49. 33 199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261. 380 PRINCIPLES OF THE CONSTITUTIONAL appointed dispensers therein. The dispensers received fixed salaries, and had therefore no pecuniary interest in the sales, the entire profits therefrom 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 treas- ury. In previous cases the Supreme Court of the United States had held that the regulation and control of the sale of intoxicating liquors, so far as interstate commerce was not interfered 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 im- ported liquors after their arrival within the States. The question thus was: had the Federal Government the con- stitutional power to exact taxes from officials appointed and paid by the State of South Carolina and performing functions which the State was constitutionally empowered to entrust to them? The Supreme Court held that, in this particular case, it had. The court adverted to the fact that in the cases in which a Federal tax upon State agencies had been held uncon- stitutional, it had been levied upon instrumentalities of government. After a review of the cases the court say: “These decisions, while not controlling the question be- fore us, indicate that the thought has been that the ex- emption of State agencies and instrumentalities from national taxation is limited to those which are of a strictly governmental character, and does not extend to those which are used by the State in the carrying on of an ordi- nary private business.” 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 cer- Law or THE UNITED StTaTEs 381 tain documents. There is little doubt that the United States may in its own courts, or in any 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 in- struments shall be stamped and that if not so stamped they shall not be received as evidence in Federal courts, the States cannot be compelled to exclude them as evi- dence in their courts upon that ground. 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.*4 Federal exercise of eminent domain in the States The relation of the Federal power to State governmental instrumentalities has been further illustrated in the matter of the Federal 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.** Though never authoritatively decided the better opinion is, however, that the United States may not take for its own use land or other property essential to the State in performance of its governmental functions. Special assessments The taking by the State of private property in the form of taxes is held to be justified and not a taking of property for public use without compensation, upon the theory 34 See Judson On Taxation, § 501. 35 Monongahela Nav. Co. v. United States, 148 U. 8. 312; 13 Sup. Ct. Rep. 622; 37 L. ed. 463; Chappell v. United States, 160 U. S. 499; 16 Sup. Ct. Rep. 397; 40 L. ed. 510. 382 PRINCIPLES OF THE CONSTITUTIONAL that compensation is returned in the form of police pro- tection and of other benefits flowing from the existence of the government. A logical extension of this justifica- tion permits the State to levy special taxes upon land embraced within a given district when the proceeds of such taxes are to be spent for improvements which, though of general public utility, are yet for the special and peculiar benefit of that district. For, as the court say in Lock- wood v. St. Louis * ‘‘While the few ought not to be taxed for the benefit of the whole, the whole ought not to be taxed for the benefit of the few .... General taxation for a mere local purpose is unjust; it burdens those who are not benefited and benefits those who are exempt from the burden.” In similarity to this principle that the property pe- culiarly benefited by a public improvement may be called upon, by a special assessment, to bear the cost thereof, is the principle that, in assessing the damages when private property is taken for a public purpose under an exercise of the right of eminent domain, the resulting benefits to the owner from the public use to which his appropriated property is devoted may be subtracted from the value of the property taken. The right thus to set off benefits was denied by the court of appeals of the District of Columbia in several cases, but the Supreme Court of the United States, in Bauman v. Ross ” emphatically repudiated the doctrine, saying: ‘‘The just compensation required by the Constitution to be made to the owner is to be measured by the loss caused to him by the appropriation [of his property]. He is entitled to receive the value of what he has been deprived of and no more. To award him more would be unjust to the public. Consequently, when part 3 24 Mo. 20. 97 167 U. S. 548; 17 Sup. Ct. Rep. 966; 42 L. ed. 270. Law oF THE UNITED StTaTES 383 only of a parcel of land is taken for a highway, the value of that part is not the sole measure of the compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be con- sidered.” Taxes and special assessments distinguished Special assessments are, properly speaking, taxes, and yet they are of so peculiar a character that the courts have not infrequently refused to bring them within the meaning of the term ‘“‘tax.’”’ Thus where certain corpor- ations or pieces of property have been by law exempted from taxation, they have, nevertheless, been held subject to special assessments.*® Again, where State constitu- tions have provided that taxation shall be equal and uni- form, or that all property shall be taxed according to its value, the courts have nevertheless held that special assess- ments for local improvements may be levied and assessed according to the front-foot rule or by a standard other than that of value. Judge Cooley quotes the following from a decision of a Mississippi court in illustration of the distinction between a tax and a special assessment: “A local assessment can only be levied on land, it can- not, as a tax can, be made a personal liability of the tax- payer; it is an assessment on the thing supposed to be benefited. A tax is levied upon the whole State or a known political sub-division as a county or town. A local assessment is levied upon property situated in a district created for the express purpose of the levy and possessing no other function or even existence than to be the thing upon which the levy ismade. A taxis a continuing burden 38 Lefevre v. Detroit, 2 Mich. 586; Ill. Cen. Ry. Co. v. Decatur, 126 Ill. 92. See Michigan Law Review, II, 455. 384 PRINCIPLES OF THE CONSTITUTIONAL and must be collected at short intervals for all the time and without it government cannot exist; a local assessment is exceptional both as to time and locality, it is brought into being for a particular occasion and to accomplish a particular purpose and dies with the passing of the occasion and the accomplishment of the purpose. A tax-is levied, collected and administered by a public agency, elected by and responsible to the community upon which it is im- posed; a local assessment is made by an authority ab ezira. Yet is is ike a tax in that it is imposed under an authority derived from the legislature, and is an enforced contribu- tion to the public welfare, and its payment may be en- forced by the summary method allowed for the collection of taxes. It: is like a tax in that it must be levied for a public purpose and must be apportioned by some reason- able rule among those upon whose property it is levied. It is unlike a tax in that the proceeds of an assessment must be expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed.” Constitutional requirements of special assessments The power of the legislature to establish special taxing districts upon the lands within which a special tax is to be levied, assessed, and collected is limited by the following rules: (1) There must be some reasonable ground for group- ing into a single district the lands composing it, and this reasonable ground must, as has been said, be that the lands in question will derive special benefit from the public improvement to meet the expenses of which the tax is levied. It follows, therefore, as of course, that the pro- ceeds of the tax may not be used for other purposes. (2) The tax so levied must be assessed according to a rule 39 Macon v. Patty, 57 Miss, 378. Law or THE UNITED STATES 385 uniformly applied throughout the district, which, in its actual operation, will fairly distribute the tax among the several pieces of property affected according to the benefits received or to be received from the public improvement which is undertaken. Whether or not the assessments may be in excess of the benefits is a question to be presently considered, but in any case they must be apportioned generally according to the benefits. By this is not meant that this apportionment must be absolutely exact. This, in most cases, is an impossibility, But, generally speak- ing, the part of the entire tax borne by each piece of land must agree with the part of the entire benefit received.” When a public improvement is to be undertaken which will result in a special benefit to a particular district, it is not obligatory upon the legislature to levy a special assess- ment upon ‘that district for the purpose. Whether or not it will do so lies within its free discretion. Also the fact that the proposed improvement will be, to a certain extent, of general benefit to the whole community, does not render invalid a special assessment upon the district especially benefited.*! Special assessments in excess of benefits It has been seen that the justification for a special assessment is the special benefit received. Logically and justly, it would seem, therefore, that such special assess- ments should in no case be permitted to exceed, to any substantial extent at least, the benefits which justify them. In fact, however, until recently at least, the rule appears to have been that, so long as they are apportioned accord- ing to benefits, they are not necessarily measured in abso- # Union Refrigerator Co. v. Kentucky, 199 U. S. 194; 26 Sup. Ct. Rep. 36; 50 L. ed. 150. 41 Bauman v. Ross, 167 U. 8. 548; 17 Sup. Ct. Rep. 966; 42 L. ed. 270. 25 386 PRINCIPLES OF THE CONSTITUTIONAL lute amount by such benefits. Thus, for example, in Bauman »v. Ross, cited above, in which was involved a law which provided that one-half of the amount measured as damages for the taking of the lands needed for the improve- ment contemplated, should be assessed upon the lands benefited, no provision appeared to meet cases in which the assessments thus provided for might exceed the benefits conferred; yet the court declared: “This fixing of the gross sum to be assessed was within the authority of Congress.” In 1898, however, was decided the case of Norwood v. Baker,*? which seemed to state a new doctrine which was for a time extraordinarily disconcerting. For if, as the case seemed to hold, a special assessment according to some uniform rule of assessment, such as the front-foot rule, could not be applied until it had been determined, after a hearing, that it would not impose upon any particu- lar piece of property a tax in substantial excess of the bene- fits conferred by the improvement upon that property, the practice and procedure of special assessment through- out the country would in many cases have to be revised. In a series of cases, decided in 1901, however, the court brought back the law very nearly, if not quite, to its former condition.” Summarizing the result, or rather the tendency of the cases reviewed, it would appear that the Supreme Court has drawn away from the doctrine stated in its earlier cases that a special assessment will be upheld if apportioned 42172 U.S. 269; 19 Sup. Ct. Rep. 187; 43 L. ed. 443. 48 French v. Barber Asphalt Paving Co., 181 U. 8S. 324; 21 Sup. Ct. Rep. 625; 45 L. ed. 879; Tonawanda v. Lyon, 181 U. S. 389; 21 Sup. Ct. Rep. 609; 45 L. ed. 908; Wight v. Davidson, 181 U. 8. 371; 21 Sup. Ct. Rep. 616; 45 L. ed. 900. See also, in further development of the doctrine, Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co., 197 U. 8. 480; 25 Sup. Ct. Rep. 466; 49 L. ed. 819; Martin v. District of Columbia, 205 U.S. 135; 27 Sup. Ct. Rep. 440; 51 L. ed. 743. Law or THE Unirep Srares 387 according to a rule which, in its general operation, dis- tributes the burden of the tax in proportion to the benefits received, even though such assessments may, as to particu- lar pieces of property, be in substantial excess of the bene- fits received. In place of this doctrine the court, though with considerable falterings, has declared that ‘when the chance of the cost exceeding the benefit grows large, and the amount of the not improbable excess is great’’ the assessment will not be sustained. Except in such ex- treme cases, however, the legislative determination as to the propriety of the assessment and of the mode of its apportionment will be held controlling. Property taxed must be within the jurisdiction of the State By reason of the due process clause of the Fourteenth Amendment, and as a result from the fact that no State may give extraterritorial force to its laws, the States of the Union are constitutionally disqualified from levying taxes upon property without their several territorial jurisdictions. This principle, simple and absolute in itself, often becomes, however, difficult of application because of the difficulty in determining, in certain cases, when a given piece of property may be legally considered within the jurisdiction of the State attempting to tax it. This difficulty is illus- trated in the sections which follow. The right to tax depending upon the actual or construc- tive presence within the jurisdiction of the property taxed, and the tax thus operating in rem rather than in personam against the owner, it follows that, strictly speaking, the owner, not domiciled in the State, cannot be made per- sonally liable for the tax.** All incorporeal heriditaments, for example, as corporate 44 Dewey v. Des Moines, 173 U.S. 193; 19 Sup. Ct. Rep. 379; 43 L. ed. 665; Corry v. Baltimore, 196 U. S. 466; 25 Sup. Ct. Rep. 297; 49 L. ed. 556. 388 PRINCIPLES OF THE CONSTITUTIONAL franchises, may be taxed only in the State from whose law they are derived and where, consequently, they have their legal situs.” Taxation of tangible personal property The right of the State to tax all real property situ- ated within its borders, (except property of the United States or of a foreign government) has never been ques- tioned. Its inability to tax real property beyond its borders is equally uncontested. In these respects tangible personal property is grouped with real property. That tangible personal property situated within one State may not be taxed by another State, even though its owner be domiciled therein, is definitely stated in Union Refrigerator Transit Co. v: Kentucky,“ decided in 1905. Taxation of property situated in several jurisdictions The instrumentalities through which commerce is car- ried on between the States and with foreign countries may be taxed by the States as property to the extent that such instrumentalities are within the several territories of the States so taxing them. Thus, buildings used for freight and passenger stations and for offices, roadbeds, rails, machine shops, etc., may be taxed by the States in which they are situated, so long as the tax is a general property tax and not one laid upon them specially, nor at a special rate because of their employment in interstate commerce. In determining, however, the value of these properties, the important principle has been laid down that in estimat- ing the value of the property within the State, of a company doing business in several States, the entire property may 4° Louisville, etc., Ferry Co. v. Kentucky, 188 U. S. 385; 23 Sup. Ct. Rep. 463; 47 L. ed. 513. 4 199 U.S. 194; 26 Sup. Ct. Rep. 36; 50 L. ed. 150. Law or THE UNITED StaTEs 389 be treated as a unit and its value in use as such deter- mined, and the value of the part of the property in the particular State estimated as bearing the same proportion to the whole property as the amount of the business done: in the State bears to the whole business done by the com- pany, or the mileage of tracks of a railway company, or of wires, of a telegraph or telephone company, bears to the entire mileage of tracks or wires of the company taxed. This “unit in use” principle of valuation received an extensive application in the case of Adams Express Co. v. Ohio State Auditor,” decided 1897, for there the actual tangible property within the State was inconsiderable whereas the value of the entire concern measured by the amount of business done was very great. Furthermore, there was there lacking that physical unity of plant which is found in railroad and telegraph companies. In taxing the property within the State of a company operating in two or more States the not unusual practice has been to levy the tax on the capital stock of the com- pany, taking as the basis of assessment such proportion of the capital stock as the amount of business done within the State bears to the entire business done; and in rail- roads, telegraph and telephone companies, determining this proportion by the proportion of the total mileage of track or wires lying within the State. This, for example, was the method employed in the leading case of Pullman’s Palace Car Co. v. Pennsylvania,*® decided in 1891. This also was the method employed in Delaware, L. & W. R. Co. v. Pennsylvania,® in which it was held that in apprais- ing the capital stock, tangible property located in other States might not be included. 47165 U.S. 194; 17 Sup. Ct. Rep. 305; 41 L. ed. 683. #141 U.S. 18; 11 Sup. Ct. Rep. 876; 35 L. ed. 613. 49198 U.S. 341; 25 Sup. Ct. Rep. 669; 49 L. ed. 1077. 390 PRINCIPLES OF THE CONSTITUTIONAL Taxation of movables In a series of cases the Supreme Court has held that in taxing the rolling stock of railway, sleeping-car and re- frigerator companies, a State may estimate the number of cars upon the average kept and used within the State, and for the determination of this average may use any reasonable rule, the one ordinarily employed being that of mileage. Conversely that part of the property of a cor- poration which upon an average is kept and employed out- side of the State may not be taxed.” Taxation of intangible personal property Whereas, with reference to the taxation of tangible personal property, the practice has been to determine its situs by its actual location, with respect to intangible per- sonalty, the principle of mobilia sequuntur personam, has generally, though we shall presently see, not always, been applied.*! However, in the case of State Tax on Foreign-Held Bonds,*” decided in 1873, declarations were made, which, if strictly adhered to, would have greatly embarrassed the States in their attempts to tax intangible personal prop- erty. In this case it was declared that bonds and other evidences of indebtedness are property in the hands of the holders, and, when held by non-residents of the State in which issued, are property beyond the jurisdiction of, and therefore not taxable by, that State. The law con- tested in this case had required that a domestic railroad company should, before the payment of the interest on certain of its bonds, retain out therefrom the amount of 50 Pullman Co. v. Pennsylvania, 141 U.S. 18; 11 Sup. Ct. Rep. 876; 35 L. ed. 613. ; 51 Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194; 26 Sup. Ct. Rep. 36; 50 L. ed. 150. 5215 Wall. 300; 21 L. ed. 179. Law or THe Unirep Srares 391 the tax and pay it over to the State. By this direction, it was held, the law operated to impair the obligation of the contract between. the company and its non-resident bondholders, and the court held that it was such an im- pairment because it was not a proper exercise of the taxing power, even though the bonds were secured by mortgages on property situated within the State. The court in its opinion declared: ‘‘ Debts owing by corporations, like debts owing by individuals are not property of the debtors in any sense; they are obligations of the debtors, and only possess value in the hands of the creditors. With them they are property, and in their hands they may be taxed. ... A mortgage being a mere chose in action, it only confers upon its holder, or the party for whose benefit it is given, a right to proceed against the property mortgaged, upon a given contingency, to enforce by its sale the payment of his demand. It may undoubtedly be taxed by the State when held by a resident therein, but when held by a non- resident it is as much beyond the jurisdiction of the State as the person of the owner.’”’ After admitting that public securities consisting of State bonds and bonds of municipal bodies and circulating bank notes might have a situs for taxation apart from the domicile of their owners, the court go on to say: “But all other personal property, consisting of bonds, mortgages, and debts generally, have no situs independent of the domicile of the owner, and certainly can have none where the instruments, as in the present case, constituting the evidence of debt, are not separated from the possession of the owners.”’ The principles thus broadly laid down in the State Tax on Foreign-Held Bonds case had soon to be modified, and, in fact, the case has since been held down to the precise point decided. That public securities, consisting of State bonds and bonds of municipal corporations and circulating 392 PRINCIPLES OF THE CONSTITUTIONAL notes of banking institutions are exempted from the princi- ples mobilia sequuntur personam, is stated in the case itself. But in later cases the same exemption is applied to shares of stock, mortgages, and to a certain extent, to promissory notes and other credits. This will appear in the sections which follow. Taxation of shares of stock, mortgages and credits Shares of stock in incorporated companies may be viewed either as property in the hands of their holders or as repre- senting the property of the company. Thus they are viewed in the latter light when their value is taken as measuring the value of the property of the company for the purposes of a property tax upon that company. In such cases, as we have seen, tangible property of the com- pany permanently located outside of the State may not be ‘included in the appraisement The States may also levy a license tax upon a domestic corporation, that is, upon its right not simply to be, but to do business within the State, and this license tax it may measure by the value of the capital stock. Also a State may levy a similar tax upon a foreign corporation, unless engaged in interstate commerce, the payment of which is made a condition pre- cedent toits right to enter the State and do business therein, and measure this tax by the nominal or market value of the capital stock of the company. In both of these cases the tax is not, in reality, upon the capital stock, but is measured by it. The present section will be concerned with the taxation of corporate stock as intangible personal property in the hands of its holders or owners. The declaration of the court in the State Taxon Foreign- Held Bonds case, would, if strictly pursued, have pre- vented the levying of such a tax upon non-resident holders of the stock of domestic corporations, upon the principle of mobilia sequuntur personam. In Tappan v. Merchants’ Law oF THE Unrirep StTareEs 393 National Bank,** however, the court held that, as to shares of stock at least, this principle does not reasonably apply, and that, for purposes of taxation, these shares may be separated from the person of their owner and given a situs where the corporation has its situs, namely, at the place of its incorporation. In Savings and Loan Society v. Multnomah * the broad dicta of the court in the State Tax on Foreign-Held Bonds cases were again modified, this time with reference to the taxation of mortgages. In this case the court held that mortgages, whether held by residents or non-residents, may be taxed at their full value by the State in which the mortgaged property is located, and that this may be done either by taxing the whole value of the property to the mortgagor or by taxing to the mortgagee the interest repre- sented by the mortgage and the remainder to the mort- gagor. In the preceding paragraphs we have seen that mort- gages and shares of stocks have been taken out of the broad doctrine declared in the State Tax on Foreign-Held Bonds case, which placed them under the rule of mobilia sequuntur personam. ‘To a very considerable extent the same is true as to promissory notes and similar evidences of indebtedness. The rule of mobilia seguuntur personam has, however, not been followed when the notes have been placed in the hands of an agent for receipt of the interest or for the collection of the capital sums. In such cases the situs of the notes has in some cases been held to be that of the agent; in others, where there has been apparent a scheme to avoid the payment of taxes, the situs has been held to be at the domicile of their owner.*® 5319 Wall. 490; 22 L. ed. 189. 54169 U. S. 421; 18 Sup. Ct. Rep. 392; 42 L. ed. 803. 38 Kirtland v. Hotchkiss, 100 U. 8. 491; 25 L. ed. 558; New Orleans ». Stempel, 175 U.S. 309; 20 Sup. Ct. Rep. 110; 44 L. ed. 174; Bristol 394 PRINCIPLES OF THE CONSTITUTIONAL Taxation of franchises The State which incorporates, and that State only, may tax the franchise of a corporation, that is, its right to be and operate as a corporation.*® It would seem, however, that the franchise or permission granted a foreign corporation to do business in a State may be taxed as property in that State. Also, of course, a yearly payment by the companies may be required by that State as a condition precedent to doing business in that State, but such payments partake more of the nature of a license fee than of a tax. As regards a domestic corporation, a State may tax not only its property, and its franchise (valuing that franchise by net or gross receipts), but also may tax, as property, privileges or rights which it may have granted, as, for ex- ample the use of the public streets. The fact that, at the time of the granting of this right or privilege, payment was made therefor by the company, either in the form of a lump sum or a continuing annual amount, does not exempt that right from taxation according to its pecuniary value, any more than does the purchase of a piece of land from the State and payment therefor exempt it from future taxation as property.” That a franchise may be taxed as a piece of property, and that, in estimating the value of this property, the value of the good will of the company may be included, is clearly established in Adams Express Co. v. Ohio.® v, Washington Co., 177 U. 8. 133; 20 Sup. Ct. Rep. 585; 44 L. ed. 701; Blackstone v. Miller, 188 U. 8. 189; 23 Sup. Ct. Rep. 277; 47 L. ed. 439; State Board v. Comptoir National, 191 U. 8. 388; 24 Sup. Ct. Rep. 109; 48 L. ed. 232; Buck v. Beach, 206 U. 8. 392; 27 Sup. Ct. Rep. 712; 51 L. ed. 1106. 56 Louisville, etc., Ferry Co. v. Kentucky, 188 U. 8. 385; 23 Sup. Ct. Rep. 463; 47 L. ed. 513. 537 People v. Roberts, 154 N. Y. 101; 159 N. Y. 70. 88 166 U. 8. 185; 17 Sup. Ct. Rep. 604; 41 L. ed. 965. See, also, Law oF THE UNITED StTaTES 395 Double taxation We have seen that the right of a State to tax depends upon its jurisdiction over the object taxed, and that this jurisdiction is obtained by either actual or constructive presence of the object within the State’s territorial limits. This constructive presence applies to personal property and depends upon the principle mobilia sequuntur personam. As to personal property it is thus possible that it may be actually in one State and be there taxed, and constructively in another State and there also taxed. The fact that one State has exercised its jurisdiction with reference to a mat- ter, whether of taxation or otherwise, clearly can impose no obligation upon another State not to exercise such ju- risdiction as it may have. This the Supreme Court of the United States has repeatedly recognized.” The double taxation of a piece of property by the same State that is, its taxation twice viewed in the same aspect, is however, forbidden not only by the several constitutions of most of the States, but by the Fourteenth Amendment. Metropolitan Ry. Co. v. Tax Commissioners, 199 U.S. 1; 25 Sup. Ct. Rep. 705; 50 L. ed. 65. 59 Coe v. Errol, 116 U. 8. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715; Blackstone v. Miller, 188 U. S. 189; 23 Sup. Ct. Rep. 277; 47 L. ed. 439. CHAPTER XL THE FEDERAL JUDICIARY: ITS ORGANIZATION Constitutional provisions The Constitution provides that there shall be a Supreme Court of the United States, and such inferior courts as Congress may from time to time ordain and establish. It is also provided that ‘the judges both of the supreme and inferior courts shall hold their offices during good be- havior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office;’’! and that the judges of the Su- preme Court shall be nominated by the President and ap- pointed by and with the advice and consent of the Senate. All the other Federal justices are similarly appointed, but it is in the power of Congress to vest their appointment, ‘fn the President alone, in the courts of law, or in the heads of departments.” ? , With the exception then of the tenure of office,’ and the constitutional provision regarding the appointment of the justices of the Supreme Court, the form of organization, the number of justices, etc., the Federal courts, including the Supreme Court, are wholly within the control of Congress. The practice and procedure to be followed in these courts is also within the control of Congress except as to 1 Art. III, § 1. 2 Art. IT, § 2, el. 2. 3 This exception does not apply to territorial courts, and to such quasi judicial bodies as the Interstate Commerce Commission, these being rather congressional agencies than parts of the Federal ju- diciary. See Clinton v. Englebrecht, 13 Wall. 434; 20 L. ed. 659. 396 Law or tHe Unitrep StTatTEs 397 certain mandatory provisions with reference to jury trial, second jeopardy, speedy and public trial, etc., contained principally in the first eight Amendments of the Constitu- tion. These constitutional rights, immunities, and privi- leges guaranteed to the individual are considered elsewhere. Inferior Federal courts By the original Judiciary Act of 1789 provision was made for inferior Federal courts to be known as District and Cir- cuit Courts. The territory of the Union was divided into districts composed of a State or portions of a State, for each of which a District Court was provided; and these dis- tricts were grouped into circuits for each of which circuit courts were provided and a Justice of the Supreme Court assigned as Circuit Judge. With the exception of minor changes, as for example, the creation of new districts and circuits and making provision for Circuit Judges in addition to the Justices of the Supreme Court, the system thus established remained undisturbed for over one hundred years. In 1891, Congress created a new class of Federal tribunals known as the Circuit Courts of Appeals, one of these being assigned to each of the existing nine circuits; and in 1911 the circuit courts were abolished. Also in 1909 a Court of Customs Appeals, and in 1910 a Commerce Court were created. As at present constituted, therefore, the Federal judicial machinery consists of a Supreme Court, Circuit Courts of Appeals, District Courts, a Court of Customs Appeals, and a Commerce Court. In addition to these there are also a Court of Claims, and the Judiciary of the District of Columbia. The Supreme Court—Its organization The Supreme Court is at present composed of nine justices—eight associate justices and one chief justice. 398 PRINCIPLES OF THE CONSTITUTIONAL It sits at Washington, D. C., and holds annual terms be- ginning in October and lasting until the end of May. Each justice of the Supreme Court is assigned to a cir- cuit where, in addition to certain administrative functions with reference to the assigning of judges to particular courts, he may sit in the Circuit Court of Appeals. Circuit Courts of Appeals —Organization The Circuit Courts of Appeals created by the act of 1891 are each held by three justices. These may be the Supreme Court Justice of the circuit, the circuit judges, or one or more of the district judges. Two judges con- stitute a quorum. District Courts —Organization There are now about eighty District Courts, nine of which are in the territories. In a few instances two dis- tricts are assigned to one judge. For each district a United States district attorney is appointed to represent the interests of the Federal Government. Marshals and other court officers are also provided. District judges must reside within their respective districts. They may, when assigned by the circuit judge or justice or the Chief Justice of the Supreme Court, hold the District or Circuit Court for any other district of the circuit within which their districts lie, and any one of them may upon the desig- nation of the Chief Justice hold the District and Circuit Court of any District in a Circuit contiguous to his own. Court of Customs Appeals This court consists of five judges, of whom three con- stitute a quorum, but the concurrence of three judges is necessary for a decision. The clerk of the court has his office at Washington, D. C., but the court may be held in any one of the judicial circuits, Law oF THE UNITED StarrEs 399 Commerce Court The Commerce Court is composed of five judges as- signed to it by the Chief Justice of the United States, for periods of five years, from among the circuit judges of the United States. Four judges constitute a quorum, and the concurrence of a majority of the court is necessary for a decision. The court usually sits at Washington, but may, when expedient, sit elsewhere. Court of Claims —Organization This tribunal was established in 1855, and is at present composed of five justices. It sits at Washington, D. C., holding one term yearly, beginning the first Monday in December. Judiciary of the District of Columbia The Courts of the District of Columbia consist of Police Courts, a Supreme Court, and a Court of Appeals. The Supreme Court consists of a chief justice and five associate justices, each of whom individually holds court for the trial of law, equity and criminal cases. Thence an appeal lies to the Court of Appeals composed of a chief justice and two associate justices. From the Court of Appeals in certain cases an appeal or writ of error lies to the Su- preme Court of the United States. The Supreme Court—Original jurisdiction The jurisdiction of the Supreme Court is of two kinds,— original and appellate. The appellate jurisdiction is, in turn, of two kinds; that coming by writ of error to the courts of the States, and that by appeal from the inferior Federal tribunals. The original jurisdiction is determined by the Constitution which provides that ‘In all cases affecting ambassadors, other public ministers and consuls, 400 PRINCIPLES OF THE CONSTITUTIONAL and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.” It has been held that it is not competent for Congress to give to the Court original jurisdiction in other than these specifically enumerated cases. This doctrine is deduced from the constitutional provision that “in all other cases . . . . the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.” 4 Inferior courts may be granted jurisdiction of cases within the original jurisdiction of the Supreme Court The implication from the foregoing, especially from the last clause, might seem to be that the Supreme Court may not take appellate jurisdiction in cases in which it might exercise original jurisdiction, and, therefore, that it would not be within the power of Congress to give to the in- ferior Federal courts original jurisdiction over causes cog- nizable in the first instance by the Supreme Court. The point has never been squarely passed upon by the Supreme Court, but Congress has in fact, in a number of instances, granted such original jurisdiction to inferior Federal courts, and there are a number of judicial dicta in support of the constitutionality of the practice.® Supreme Court—Appellate Jurisdiction The appellate jurisdiction of the Supreme Court, to- gether with the entire jurisdiction of all the inferior Federal 4 Art. ITI, § 2, cl. 3. See Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60, and Muskrat v. United States, 219 U. S. 346; 31 Sup. Ct. Rep. 250; 55 L. ed. 246. 5 Cf. Garland and Ralston, Constitution and Jurisdiction of the United States Courts, §7. See Graham v. Strucken, 4 Blatch. 50; Ames v. Kansas, 111 U.S. 449; 4 Sup. Ct. Rep. 437; 28 L. ed. 482, and United States v. Louisiana, 123 U. S. 32; 8 Sup. Ct. Rep. 17; 31 L. ed. 69. Law or THE UNITED STATES 401 courts is wholly within the control of Congress under the constitutional provision that “the judicial power of the United States shall be vested in one Supreme Court, and such inferior courts as the Congress may from time to time ordain and establish,” and that ‘in all other than original cases . . . . the Supreme Court shall have ap- pellate jurisdiction both as to law and fact, with such ex- ceptions and under such regulations as the Congress shall make.” These exceptions and regulations which Congress is thus authorized to make have reference to the granting and regulation of appeals to the Supreme Court. Con: gress thus may prevent the exercise of appellate juris- diction by the Supreme Court by making no provision for appeals or writs of error from the lower Federal or from the State courts, either by failing to grant original jurisdiction to the inferior Federal courts, or by providing that their jurisdiction, when granted, shall be final. That the appellate jurisdiction of the Supreme Court is within the power of Congress was strikingly manifested in the case of Ex parte McCardle.’ In this case the Su- preme Court had assumed jurisdiction by appeal from a Cir- cuit Court, the case argued, and taken under advisement, but while still undecided, Congress by an act deprived the court of appellate jurisdiction over the class of cases to which the one at issue belonged. Thereupon the Supreme Court dismissed the appeal for want of jurisdiction. This congressional action, it was known, had been taken to prevent the court from passing upon the constitutionality of certain “reconstruction” measures. The court, how- ever, said: ‘‘We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make 67 Wall. 506; 19 L. ed. 264. 26 402 PRINCIPLES OF THE CONSTITUTIONAL exceptions to the appellate jurisdiction of this court is given by express words.” Appeals from the District Courts As at present by statute provided, the Supreme Court has the following appellate jurisdiction with reference to the lower Federal Courts. Appeals or writs of error may be taken from the Dis- trict Courts direct to the Supreme Court in the following cases: “Tn any case in which the jurisdiction of the court is in issue; in which case, the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision; from the final sentences and decrees in prize causes; in any case that involves the construction or ap- plication of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question; and in any case in which the Constitution or law of a State is claimed to be in contravention of the Constitution of the United States.” In addition to the foregoing enumerated in the act of March 3, 1911 appeals lie in bankruptcy cases and in certain cases from the Court of Claims, territorial courts, and Court of Appeals of the District of Columbia. The Supreme Court has also the power to issue writs of manda- mus, of prohibition to District Courts in admiralty cases, and of certiorari to Circuit Courts of Appeal and to the Court of Appeals of the District of Columbia. Appeals from Circuit Courts of Appeals All cases in the Circuit Courts of Appeals, not expressly made final, and in which the matter in controversy ex- ceeds one thousand dollars besides costs, may be reviewed Law or tHE UnitTep States 403 by the Supreme Court by appeal or writ of error. Inas- much, however, as most of the judgments and decisions of the Circuit Courts of Appeals are declared final (namely, all cases in which jurisdiction is dependent entirely upon the citizenship of the parties, and all patent, criminal, revenue and admiralty cases) this appellate jurisdiction of the Supreme Court is, relatively, inconsiderable. The Circuit Court of Appeals may, however, in any case in which its judgment or decree is final, certify to the Su- preme Court any question of law upon which it wishes the judgment of the Supreme Court; or the Supreme Court may at any time by certiorari or otherwise require such cases to be certified to it for review and final determi- nation. Writs of error to State courts Appellate jurisdiction is exercised by the Supreme Court by writs of error directed to the highest courts of the State in which a decision can be had, in all cases ‘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 decision is in favor of their validity, or where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege or immunity specially set up or claimed, by either party, under such constitution, treaty, statute, commission or authority.” In such cases the Supreme Court may affirm, reverse or modify the judgment or decree cf the State court, and 404 - PRINCIPLES OF THE CONSTITUTIONAL may at its discretion award execution, or remand the same to the court from which it was removed. In cases brought to the Supreme Court by writs of error from the State courts, the judgment of these courts will not be reversed, whatever construction they may have given to an alleged Federal right, if it appear that there was a local law which, rightly interpreted, would sustain the judgment entered or decree given. In De Saussure v. Gaillard’ the general rule is declared that to give the Supreme Court jurisdiction on a writ of error to a State court, “it must appear affirmatively not only that a Federal question was presented for deci- sion to the highest court of the State having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it.” And in Johnson v. Risk ® this rule is supple- mented by the declaration that: ‘‘Where there is a Federal question, but the case may have been disposed of on some other independent ground, and it does not appear on which of the two grounds the judgment was based, then, if the independent ground was not a good and valid one, suffi- cient of itself to sustain the judgment, this court will take jurisdiction of the case, because, when put to inference as to what points the State courts decided, we ought not to assume that it proceeded on ground clearly untenable. But where a defense is distinctly made, resting on local statutes, we should not, in order to reach a Federal ques- tion, resort to critical conjecture as to the action of the court in the disposition of such defense.’ In order that this appellate jurisdiction may be effectual the judiciary act also provides that instead of remanding the cause to the State court for a final decision therein, 7127 U.S. 216; 8 Sup. Ct. Rep. 1053; 32 L. ed. 125. 8137 U.S. 300; 11 Sup. Ct. Rep. 111; 34 L. ed. 683. Law or THE UNITED STATES 405 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. It will be observed that provision for writs 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 favorable, there is, of course, no need, based upon the principle of Federal supremacy, for a Federal review. The constitutionality of this section of the Judiciary Act was affirmed by the Supreme Court in 1816 in Martin vy. Hunter’s Lessee,? and again, in Cohens »v. Virginia,” decided in 1821. Circuit Courts of Appeals —Jurisdiction The Circuit Courts of Appeals have appellate jurisdic- tion over all cases heard in the District Courts except those which are carried to the Supreme Court. The judgments and decrees thus rendered upon appeal are final (except when certified to the Supreme Court) in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit being aliens and citizens of the United States, or citizens of different States; as well as in all cases arising under the patent, copyright, revenue, criminal and admiralty laws. District Courts —Jurisdiction Excepting the less important classes of cases, the juris- diction of the District Courts, as determined by statute is °1 Wh. 304; 4 L. ed. 97. 106 Wh. 264; 5 L. ed. 257. 406 PRINCIPLES OF THE CONSTITUTIONAL as follows: Being the lowest of the Federal Courts, they have no appellate jurisdiction with reference to the other Federal Courts. They have, however, certain appellate powers from the judgments and orders of the United States commissioners in cases arising under the Chinese ex- clusion laws. Appeals lie to the District Court of Wyoming from judgments in cases of conviction, before the com- missioners appointed under the act for the protection of birds and animals or the punishment of crime in the Yellowstone Natural Park. The original jurisdiction of the District Courts, as set out in § 24 of the act of March 8, 1911, is given in the footnote." The jurisdiction 11 First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same State claiming lands under grants from different States; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects. No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made: Provided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the suc- ceeding paragraphs of this section. Second. Of all crimes and offenses cognizable under the authority of the United States. Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the con- demnation of property taken as prize. : Law or THE Unitep StaTeEs 407 of the District Courts over suits removed into them from the State Courts is considered later. Court of Claims —Jurisdiction This court, established in 1855, has general jurisdiction of all ‘‘claims founded upon the Constitution of the United Fourth. Of all suits arising under any law relating to the slave trade. Fifth. Of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, juris- diction of which has been conferred upon the Court of Customs Appeals. Sixth. Of all cases arising under the postal laws. Seventh. Of all suits at law or in equity arising under the patent, the copyright, and the trade-mark laws. Eighth. Of all suits and proceedings arising under any law regu- lating commerce, except those suits and proceedings exclusive juris- diction of which has been conferred upon the Commerce Court. Ninth. Of all suits and proceedings for the enforcement of pen- alties and forfeitures incurred under any law of the United States. Tenth. Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. Eleventh. Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several States. Twelfth. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, Revised Statutes. Thirteenth. Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and, having power to prevent or aid in preventing the 408 PRINCIPLES OF THE CONSTITUTIONAL States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government same, neglects or refuses so to do, to recover damages for any such wrongful act. Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity, secured by the Constitu- tion of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. Fifteenth. Of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or Delegate to Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touch- ing the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude: Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States. Sixteenth. Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking asso- ciation, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title “National Banks,” Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respec- tively located. Seventeenth. Of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States. Eighteenth. Of all suits against consuls and vice consuls. Nineteenth. Of all matters and proceedings in bankruptcy. Twentieth. Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the Law or tHe Unitep States 409 of the United States, or for damages, liquidated or unli- quidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for dam- ages, whether liquidated or unliquidated, or other demands whatso- ever on the part of the Government of the United States against any claimant against the Government in said court: Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the Court of Claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as “war claims,” or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, depart- ment, or commission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giving to the district courts jurisdiction of cases brought to recover fees, salary, or com- pensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury. Twenty-first. Of proceedings in equity, by writ of injunction, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands; and it shall be suffi- cient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the inclosure. Twenty-second. Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. Twenty-third. Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies. Twenty-fourth. Of all actions, suits, or proceedings involving the 410 PRINCIPLES OF THE CONSTITUTIONAL United States, either in a court of law, equity, or ad- miralty, if the United States were suable.” Exception is, however, made of “claims growing out of the late civil war,” and “other claims which have hitherto been re- jected, or reported on adversely by any court, department or commission authorized to hear and determine -the same.” . As to the foregoing the District Courts are given concur- rent jurisdiction where the amount doesnot exceed $10,000. Since the so-called Bowman Act of March 3, 1883, the head of an executive department may refer to the court any claim or matter pending in his department which involves controverted questions of fact or of law, and the court is directed to report its findings of facts and conclu- sions of law to the department for its guidance. The act also provides that either House of Congress or any of its committees may refer any claim or matter to the court for the determination of the facts involved, and for report of the same to Congress for such action thereupon as it may see fit to take. All causes are tried by the court without a jury. All claims not brought within six years of the date of their accruing are barred from prosecution. Court of Customs Appeals —Jurisdiction To this court is given exclusive appellate jurisdiction to review final decisions of the Board of General Appraisers of Customs in all cases as to the construction of the law, and the facts respecting the classification of merchandise and the rates of duty imposed thereon under such classi- right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty. Twenty-fifth. Of suits in equity brought by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate. Law oF THE UNITED STATES 411 fication, and the fees and charges connected therewith, and all appealable questions as to the laws and regulations governing the collection of the customs revenues. The Commerce Court This court has jurisdictions over: ‘First. All cases for the enforcement, otherwise than by adjudication and collection of a forfeiture or penalty or by infliction of criminal punishment, of any order of the Interstate Com- merce Commission other than for the payment of money. “Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission. “Third. Such cases as by section three of the Act en- titled ‘An Act to further regulate commerce with foreign nations and among the States,’ approved February nine- teenth, nineteen hundred and three, are authorized to be maintained in a circuit court of the United States. “Fourth. All such mandamus proceedings as under the provisions of section twenty or section twenty-three of the Act entitled ‘An Act to regulate commerce,’ approved February fourth, eighteen hundred and eighty-seven, as amended, are authorized to be maintained in a circuit Court of the United States.” Jurisdiction of Federal courts based upon diversity of citizen- ship By the Constitution jurisdiction in the Federal Courts may be founded upon either the subject-matters enumer- ated in Art. III, or upon the character of the parties. This latter class of cases include controversies to which the United States is a party, or between two or more States, between a State and citizens of another State, between citizens of different States, or between a State or a citizen thereof and foreign States, citizens or subjects. 412 PRINCIPLES OF THE CONSTITUTIONAL Within the meaning of the clause of the Constitution extending the Federal judicial power to suits between citizens of different States it has been held that any person who is a citizen of the United States, native or naturalized is a citizen of the State in which he is domiciled. United States citizens domiciled in the Territories or the District of Columbia do not come within this rule.” In Strawbridge v. Curtis '? it was held that if there be two or more joint plaintiffs and two or more joint defend- ants, each of the plaintiffs must, by reason of citizenship of another State, be capable of suing each of the defendants in a Federal Court, in order to sustain the Federal juris- diction. This doctrine, thus declared, has never been departed from. Citizenship of corporations It was early decided that a corporation is not a citizen within the meaning of the clause providing that the Federal judicial power shall extend to controversies be- tween citizens of different States, and in theory this is still the law; but if each corporation was conclusively pre- sumed to be a citizen of the State by which it is chartered the practical result would be precisely the same as it now is and for many years has in fact been. Until about 1840, the doctrine prevailed that a corporation being an arti- ficial unit, the court would look behind its corporate per- sonality to see whether the individuals of which it was composed were, each and every one of them, citizens of a State different from that of each of the parties sued.‘ But in later cases this doctrine was repudiated, and the principle stated, first, that the citizenship of the individuals 12 New Orleans v. Winter, 1 Wh. 91; 4 L. ed. 44; Hepburn ». Ellzey, 2 Cr. 445; 2 L. ed. 332. 13 3 Cr. 267; 2 L. ed. 435. “4 Bank of United States v. Deveaux, 5 Cr. 61; 3 L. ed. 38. Law or THE Unitrep StTaTEs 413 composing the corporations is to be presumed to be that of the State by which the company was chartered, and, still later, that this presumption is one that may not be rebutted.!* A corporation organized in two or more States cannot sue in the Federal courts a citizen of any one of those States.16 National banks When the present national banking system was estab- lished, and for more than twenty years afterwards, an express statute authorized the National Banks to sue and be sued in the Federal courts. Since 1887 it has been provided by law that for the purposes of the jurisdiction of the Federal Courts national banks are to be held to be citizens of the States in which they are respectively located, and the Federal Courts have, in general, no other juris- diction over controversies to which they are a party than that which they would have were such banks citizens of such States.?” Federally chartered corporations It has also been held that a corporation chartered by the United States, except as specifically restricted by Congress, has the right to invoke the jurisdiction of the Federal Courts in respect to any litigation which it may have./8 Fictitious citizenship Federal jurisdiction may not be created by the fictitious assignment of the cause of action, but where the transfer is real, and for a consideration, Federal jurisdiction will 15 Ohio & Miss. R. R. Co. v. Wheeler, 1 Black. 286; 17 L. ed. 130. 16 Idem. 17 24 Stat. at L. 552. 18 Pacific Railroad Removal Cases, 115 U. 8, 1; 5 Sup. Ct. Rep. 1113; 29 L. ed. 319. 414 PRINCIPLES OF THE CONSTITUTIONAL attach even though the transfer is shown to have been made with this end in view.” In order that there may be Federal jurisdiction, mere diversity of residence is not sufficient. There must be diversity of citizenship, and this fact must affirmatively appear in the pleadings.” Federal jurisdiction of cases arising under the Constitution, treaties and acts of Congress The Constitution provides that the Federal jurisdiction shall extend to “all cases, in law or equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” In order that Federal judicial power may attach under this grant, it is necessary that the controversy shall con- stitute what in law is technically known as a “case;” and that, for its decision, the enforcement of some Federal right be substantially involved. A case is not brought within the Federal judicial cog- nizance simply because, in the progress of the litigation, it becomes necessary to refer to or give a construction to the Federal Constitution or laws of the United States. “The decision of the case must depend upon that con- struction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts in- volved.” 7! _ 19 Dickerman v. Northern Trust Co., 176 U. S. 181; 20 Sup. Ct. Rep. 311; 44 L. ed. 423. 2 Wolfe v. Hartford Life Ins. Co., 148 U. S. 389; 13 Sup. Ct. Rep. 602; 37 L. ed. 493. 21 Gold Washing & Water Co. v. Keyes, 6 Otto, 199; 24 L. ed. 656. For a general review of the extent of the Federal judicial power as determined by subject-matter, see Shoshone Mining Co. v. Rutter, 177 U.S. 505; 20 Sup. Ct. Rep. 726; 44 L. ed. 864. Law or THE UNITED STATES 415 Removal of suits from State to Federal courts The protection of Federal law and Federal rights against possible invasion by State law and State authorities may be secured in three ways. First, by vesting in the Federal Courts the exclusive cognizance of all cases in which the enforcement of Federal rights created or recognized by the Constitution, treaties, or congressional statutes, is in- volved; Second, by providing that all cases, involving these rights, which originate and are prosecuted in the State courts may be finally appealed to the Federal Courts; and, Third, by providing that such cases begun in the State courts may at some stage prior to final determina- tion thereof, be removed into the Federal courts. All these methods have been employed since the beginning of the present government. In the early years under the Constitution the chief re- liance for the ultimate protection of Federal rights against State invasion was upon the right of appeal to the Supreme Court of the United States by writ of error to the State — courts having final jurisdiction of a case in which Federal rights, privileges, and immunities were involved, and in which the final decision was adverse to the Federal rights, privileges, and immunities claimed. With respect to very many matters of which jurisdiction might have been granted to the inferior Federal Courts, no such jurisdiction was given by Congress to the Federal courts, these suits being left to the adjudication of the State Courts, with the provision that certain cases might be removed into the Federal Courts, and that in all cases not so removed or removable, appeal might be had to the Federal Supreme Court when the final State judgment was adverse to the Federal right, privilege, or immunity. Prior to 1887 by successive Acts of Congress the juris- diction of the inferior Federal Courts had been amplified and the right of removal had been broadened, but in that 416 - PRINCIPLES OF THE CONSTITUTIONAL year was passed an Act the purpose of which was to limit the right to bring a suit in the Circuit Court and the right to remove into that court a suit brought in a State Court. In construing this statute the Supreme Court has uni- formly kept in mind that its object is to limit the jurisdic- tion of the Federal Courts. The State Courts are not excluded from the exercise of jurisdiction with reference to all of the classes of cases placed by the Constitution within the possible cognizance of the Federal Courts. Over a very large proportion of these cases Congress has not seen fit to confer jurisdiction on any Federal Court. As to certain of these cases the Federal jurisdiction is held to be necessarily exclusive, and it may by Congress be made so as to all, but as to others the State Courts may be permitted to adjudicate concurrently. That is to say, as to these cases, the two systems of courts may at the same time have equal auth- ority, the suitors being given the option as to which tri- bunals shall be resorted to. This concurrence of jurisdiction is founded upon the fact as declared in Claflin v. Houseman * that while every citizen of a State is a citizen of two distinct sovereign- ties, these sovereignties are not foreign to each other but have concurrent authority as to place and persons though distinct as to subject-matters. Therefore, as the court say: ‘Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and determine such kind 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 2293 U. 8. 130; 23 L. ed. 833. See, also, The Moses Taylor, 4 Wall. 411; 18 L. ed. 397. Law oF THE UNITED STATES 417 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 charac- ter and class; subject, however, to this qualification, that where a right arises under the law of the United States, Congress may, if it see fit, give to the Federal courts ex- exclusive jurisdiction.” Statutory provision for removal from State to Federal courts By the original Judiciary Act of 1789 it was provided that civil suits brought in State courts might be removed into the Federal courts only in case all the necessary de- fendants were aliens or all the necessary plaintiffs were citizens of the State and all the necessary defendants were citizens of another State and all joined in the petition for removal. By the act of 1866 individual defendants were permitted to remove if their interests could be properly adjudicated without the presence of the other defendants. By act of 1867 either a plaintiff or defendant could re- move upon affidavit that local prejudice would prevent a fair trial. By act of 1887 this right was limited to the defendant. By act of 1875 it was declared that either defendant or plaintiff might remove any case of which the Federal Circuit and the State courts had concurrent jurisdiction. By acts of 1887 and 1888 the jurisdiction of the Circuit Courts was considerably reduced, which of course had the effect of reducing the rights of removal provided for by the act of 1875. The laws at present governing removal of suits to the Federal Circuit Courts are contained in chapter three of the act of March 3, 1911. By the original Judiciary Act Congress did not, as it might have done, endow the lower Federal courts with a general jurisdiction in proceedings against Federal officers based upon their official acts. By the famous Force Act 27 418 PRINCIPLES OF THE CONSTITUTIONAL of 1833, however, an act passed at the time of South Caro- lina’s attempted nullification of the United States tariff 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. This act has been from time to time amended, and now forms § 33 of the act of March 3, 1911. Its constitu- tionality 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 de- nied 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. It is seen that § 33 gives the power of removal only with reference to suits against revenue officers of the Federal Government. Section 31 however, 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 enforce in the judicial tribunals 23100 U. S. 257; 25 L. ed. 648. Law or tHE Unitep StatTEs 419 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 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, authority derived from any law providing for equal rights, as aforesaid, 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 District Court to be held in the district where it is pending.”” The constitutionality of this provision has been affirmed. As to all Federal officials other than revenue officers, Federal protection against State action, when necessary, must be sought, in cases not covered by -§ 31, 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. CHAPTER XLI THE INDEPENDENCE OF THE FEDERAL JUDICIARY The independence of the Federal judiciary During the ante bellum period the Federal Government often made use of State tribunals and officers for the exe- cution of its laws. Thus State justices of the peace acted as examining magistrates in criminal cases for the Federal courts, State judges officiated in the execution of extradi- tion treaties with foreign countries, aliens were naturalized in State courts, and State jails and penitentiaries were used for the incarceration of Federal criminals.. Both be- cause of this admixture of Federal and State judicial 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 aforeign 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 mili- tary 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. It was not, in- deed, until 1859 that it was authoritatively established by the Supreme Court that the State courts were without the constitutional power to interfere in any way with the processes of the Federal courts, or, in truth, with any of the agencies of the National Government. This was de- termined in Ableman v. Booth.! Here a State court had 121 How. 506; 16 L. ed. 169. 420 Law or THE Unitrep States 421 taken possession of and released a prisoner in Federal custody. The Supreme Court declared the impropriety of these actions in the following language: ‘““We do not question the authority of State court, or judge, who is authorized 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 application is made, that the person imprisoned is in cus- tody 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 con- fined within the territorial limits of the State sovereignty. But, after the return is made, and the State judge or court is judicially appraised that the party is in custody under the authority of the United States, they can proceed no further.” Notwithstanding this decision, however, a number of the State courts still claimed and exercised the right to discharge enlisted soldiers and sailors of the United States from the custody of their officers, and this prac- tice was not stopped until 1872 when, in Tarble’s case,? the Federal Supreme Court held this to be beyond their power. Here again, as in the case of Tennessee v. Davis,’ 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 National Government in the performance of its constitutional duties. The strict ap- plication of the doctrine of a divided sovereignty would have led in both cases to a constitutional impasse. But in these as in other cases the Federal Supreme Court com- 213 Wall. 397; 20 L. ed. 597. 3100 U. 8. 257; 25 L. ed. 648. 422 PRINCIPLES OF THE CONSTITUTIONAL pelled the States in the exercise of their powers to subordi- nate themselves to the requirements of national conven- ience and necessity. This case settled once for all the principle that it is a sufficient 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. Federal writs of habeas corpus 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. No provision was thus made for the release by Federal courts of persons in custody by order of the au- thorities of a State. The “Force” Act of 1833 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 committed or confined, on or by any author- ity 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 1842 this authority of the Federal courts was further broadened by the provision that the writ might issue 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 Law oF THE Unitep Srates 423 validity or effect of which is dependent upon the law of nations. In 1867 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 violation of the Constitution or any treaty or law of the United States.” 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 per- sons held for trial before the highest courts of the United States. 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 authorities is that of Re Neagle.* In that case it was held that without express statutory authoriza- tion, the general authority of the President to see that the laws of the Union are faithfully executed 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 act- ing 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 inas- much as there was no Federal statute expressly authorizing such protection as Neagle 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 Judge Miller, who 4135 U.S. 1; 10 Sup. Ct. Rep. 658; 34 L. ed. 55. 424 PRINCIPLES OF THE CONSTITUTIONAL 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.” Writ issued only when imperative The Supreme Court of the United States, though uni- formly affirming the doctrine that the Federal courts have 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 im- munity is set up for the act complained of, has, 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 ad- judication of their cases in the States’ highest courts.® The act of 1867 provides that, upon the return of the writ of habeas corpus, “‘the court of 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 re- quire.” It would not appear to be certainly settled just what are the facts to be determined and just what action is to be taken by the Federal courts in 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 5 Bx parte Royal, 117 U. 8. 241; 6 Sup. Ct. Rep. 734; 29 L. ed. 868. Law oF THE Unitep States 425 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 acted in good faith, and within the scope of his Federal authority, and is there- fore entitled to discharge; and, if not, to impose such pen- alty as the law and facts require? Or, where the question is not as to the Federal authority which is set up, but as to whether in fact that authority was 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? The opinion in the Ableman and Tarble cases, and the reasoning of the court in Tennessee v. Davis, would seem 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,’ 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 au- thority. That a State court has no power to issue a mandamus or writ of certiorari to a Federal officer is not questioned.’ The inability of the State courts by injunction or other- wise to control proceedings in Federal courts is declared in Weber v. Lee Co.,8 United States v. Keokuk,® and Super- visors v. Durant.!? This inability arises not so much from the supremacy of the Federal courts, as because the State and Federal judicial systems are independent of one an- § 200 U.S. 1; 26 Sup. Ct. Rep. 229; 50 L. ed. 343. 7M’Clung ». Silliman, 6 Wh. 598; 5 L. ed. 340. 86 Wall. 210; 18 L. ed. 781. 96 Wall. 514; 18 L. ed. 933. 109 Wall. 415; 19 L. ed. 732. 426 PRINCIPLES OF THE CONSTITUTIONAL other. 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 juris- diction in the latter, but because they are entirely inde- pendent in their sphere of action.” The same reason is given in United States v. Keokuk.” 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 al- ready 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 refus- ing 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 be- fore them by restraining orders forbidding proceedings in the State courts. It is true that, actuated by a desire to preserve as far as possible the independence of the State judiciaries Con- gress, by act of 17938, which is still in force, has provided that ‘the writ of injunction 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 proceedings in bank- ruptcy.”” But, in other than cases in bankruptcy, the Federal courts have not hesitated to enjoin proceedings oa 6 Wall. 210; 18 L. ed. 781. 100 6 Wall. 514; 18 L. ed. 933. Law or tHe Unitep States 427 in State courts where this has been necessary to preserve their own jurisdictional rights, or to protect individuals in their Federal rights. Thus in Dietzsch v. Huidekoper "4 it was held that the prohibition of § 720 of the Revised Statutes would not prevent a Federal 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 circumstances under which the Federal courts will issue injunctions restraining State officials from en- forcing, 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 considered in Chap- ter XLV, in which the suability of the State is discussed. The Federal courts have not been given, nor could they constitutionally be given, the jurisdiction to issue writs of mandamus to compel the performance by State officials of State duties. The constitutional power of Congress to authorize the Federal courts, by writ 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 granted. It is to be re- membered, 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 Fed- eral courts. 11103 U. S. 494; 26 L. ed. 497. 428 PRINCIPLES OF THE CONSTITUTIONAL State restrictions upon the right of removal of suits from State to Federal courts An important question with reference to the mainte- nance of Federal authority, is as to the authority of the States to prevent foreign corporations from removing into the Federal courts suits brought against them in the State courts by making it a condition precedent to their being allowed to enter the State or to continue to do business therein that they will not exercise this Federal right. Here it is apparent that the question 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 the States cannot put restrictions upon the re- moval of cases from their courts to Federal tribunals any more than they can prevent it was declared in a case aris- ing under the statute of the State of Wisconsin which pro- vided that insurance companies of other States desiring to do business within its limits should sign a written agree- ment that they would not remove into the Federal courts ° suits brought against them in the State’s courts. One of these companies, having removed a case into the Federal courts notwithstanding its agreement not to do so, the Wisconsin courts, ignoring the fact of its removal, pro- ceeded with the case and rendered 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 him- self in advance not to exercise a right guaranteed to him by the Constitution any more than he could barter away his life or freedom.'” When, however, in a later case, the Supreme Court of the United States was asked to issue an injunction for- 12 Home Insurance Co. v. Morse, 20 Wall. 445; 22 L. ed. 365. Law or THE UNITED States 429 bidding the Secretary of State of Wisconsin to revoke the license of an insurance company that had violated its agree- ment 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 improper ground. The court said: ‘The argument that the revocation 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 determining the validity of a statute.”'’ In other words it was held that the right both of granting and of revoking a license to a foreign 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 ques- tion 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 become void, the Federal Su- preme Court held that the violation of an illegal agreement could not of itself operate as a revocation 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.'4 This entire subject was reviewed in Security Mutual Life Insurance Co. v. Prewitt?® in which it was held that a State may by statute provide that if a foreign insurance company shall remove to a Federal court a case which has been commenced in a State court, the license of such 18 Doyle v. Continental Insurance Co., 94 U.S. 535; 24 L. ed. 148. 14 Barron v. Burnside, 121 U. 8. 186; 7 Sup. Ct. Rep. 931; 30 L. ed. 915. 15 202 U. S. 246; 26 Sup. Ct. Rep. 619; 50 L. ed. 1013. 430 PRINCIPLES OF THE CONSTITUTIONAL 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 com- ing 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 in advance that if a company re- move a case to a Federal court, its license shall be revoked. We think this distinction is not well founded. The truth is that the effect of the statute is simply to place foreign companies upon a par with the domestic ones doing bus- iness in Kentucky. No stipulation or agreement being required as a condition for coming into the State and ob- taining 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 business within the State shall cease and your permit shall be withdrawn, is not open to any constitutional objection. The reasoning in the Doyle case we think is good.” From the foregoing cases it is apparent that no abandon- ment is really made of the principle that the States are constitutionally incompetent to interfere with or prohibit the exercise of a Federal right. Corporations chartered in one State and doing business in another State may ex- ercise 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 this right. The fact that the State authorities, in the exercise of a power acknowl- edged to be possessed 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 Law oF THE UNITED StTaTESs 431 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, by 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 of their jurisdiction by those courts after the cases have been removed into them. Whenever this has been attempted the Federal courts have prevented it. Thus it has been repeatedly declared that the jurisdiction conferred on the Federal courts cannot in any way be abridged or impaired by the statutes of a State. So, also, it is held that the proper petition and bond hav- ing been filed, the 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 chooses, defend the case in the State court, and after final judgment 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 the case and the clerk refusing to furnish it be- comes liable under a Federal act to fine or imprisonment. In the recently decided case of W. U. Telegraph Co. v. 16 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. 17 Marshall v. Holmes, 141 U.S. 589; 12 Sup. Ct. Rep. 62; 35 L. ed. 870. 18 Act of March 3, 1875. 432 PRINCIPLES OF THE CONSTITUTIONAL Kansas” the court takes a position which is somewhat difficult to harmonize with that assumed in the insurance _cases. In this case the court held unconstitutional as an interference with interstate commerce a State law exact- ing from a foreign telegraph corporation, as a condition to being permitted to continue to do a local business within the State, a charter fee of a given per cent of its entire authorized stock. The court declare: ‘The vital differ- ence 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 ad- judged, interstate commerce, while the business of tele- graphing was primarily 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 condition 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 similar condition impose burdens upon the exercise by the foreign corporation of the Federal right of carrying on interstate commerce, which latter right can scarcely be said to be a more important one than that involved in the Prewitt case. It would seem, therefore, that the decision might better have been based upon the ground suggested by Justice White in his concurring opinion in the later case that the company having been permitted to enter the State and construct its plant there, the oner- ous conditions attempted to be imposed by the State as a condition to its remaining there were confiscatory and, therefore, wanting in due process of law. Congress may not confer jurisdiction upon State courts As has been earlier pointed out the State courts pos- 19216 U.S. 1; 30 Sup. Ct. Rep. 190; 54 L. ed. 355. See also Lud- wig v. W. U. Tel. Co., Feb. 21, 1910. LAW oF THE UNITED STATES 433 sess jurisdiction over certain cases concurrently with that possessed by the Federal courts. This, however, is not a jurisdiction which is conferred upon them by Federal statute, but one which they possess under State law and which they are permitted to retain even after the same jurisdiction is by act of Congress conferred upon the in- ferior Federal tribunals. Congress, indeed, is without power to confer jurisdiction upon any courts not created by itself.° Congress may, however, delegate to State courts the per- formance of certain routine functions which do not involve the trial of ‘‘cases.’’ 2!_ Thus, for example, any State chan- cellor, judge, or justice of the peace may cause to be ar- rested and committed or held to trial any person charged with an offense against the United States. 20 Houston v. Moore, 5 Wh. 1; 5 L. ed. 19. 21 Robertson v. Baldwin, 165 U. 8. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715. CHAPTER XLII POLITICAL QUESTIONS Political questions Elsewhere in this treatise the well-known and well- established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, dis- cretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the exist- ence and extent of these discretionary powers. As distinguished from the judicial, the legislative and executive departments are spoken of as the political de- partments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but within these limits they do permit the departments, separately or together, to recognize that a certain set of facts, that a given status, exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts. In the exercise of his political powers, not only the President, ‘but those acting under his order are exempt from judicial control.? ' Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60. 434 Law oF THE UNITED STATES 435 No comprehensive enumeration of these political de- terminations has been attempted by the courts, nor, indeed, is such an enumeration possible. Specifically, however, the following have been decided, as the cases have arisen, to be political and, therefore, not justici- able. In Georgia v. Stanton? the court denied that it had jurisdiction, because the matter was a political one, to restrain the Secretary of War and the military authorities from putting into force certain acts of Congress providing for a military “reconstruction”? government in the State of Georgia. In Foster v. Neilson,’ the existence and territorial extent of the sovereignty of the United States or of foreign states, and, of course, as involved herein, the de jure character of their governments, were held to be political ques- tions. In Ex parte Cooper,‘ the court expressed itself bound by the action of the political departments claiming that the jurisdiction of the United States extended more than fifty-nine miles from the shores of Alaska. In United States v. Palmer,® questions as to the existence of war, belligerency, and neutrality, were similarly held to be political in character, and not subject to judicial deter- mination. Whether or not a treaty or other international agreement is in force is exclusively within the determination of the 26 Wall. 50; 18 L. ed. 721. 32 Pet. 253; 7 L. ed. 415. 4143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232. See, also, Williams v. Suffolk Ins. Co., 13 Pet. 415; 10 L. ed. 226, and Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691. 53 Wh. 610; 4 L. ed. 471. See, also, The Divina Pastora, 4 Wh. 52; 4 L. ed. 512; The Santissima Trinidad, 7 Wh. 283; 5 L. ed. 454, and Kennett v. Chambers, 14 How. 38; 14 L. ed. 316. 436 PRINCIPLES OF THE CONSTITUTIONAL political departments.’ So also is the status of accredited agents of foreign countries.’ In Boynton v. Blaine® it was held that a mandamus would not lie to control the executive department with reference to claims prosecuted by it against foreign States in behalf of private persons. In Luther v. Borden ® the judiciary was declared to be without authority to reverse:the decision of the political departments of the national government as to the de jure character of two contesting governments of a State of ‘the Union. In Martin v. Mott, it was held that the courts could not question the propriety of the action of the President, acting under the law of 1795, in calling out the militia to suppress an insurrection or to repel an invasion. In Neely v. Henkel !' it was held to be exclusively the function of the political branch of the government to determine how long the military occupation and control of Cuba should continue. In United States v. Holliday,!? the question as to the existence of tribal relations among Indians was declared to be a political one. Though questions of the extent of political jurisdiction are, as has been seen, essentially political in character, they are as between the individual States of the Union justiciable in the Supreme Court. This, however, is due to the express provision of the Constitution giving to that court original jurisdiction over ‘controversies between § Doe v. Braden, 16 How. 635; 14 L. ed. 1090; Terlinden v. Ames, 184 U. S. 270; 22 Sup. Ct. Rep. 484; 46 L. ed. 534. ’ Ex parte Baiz, 135 U.S. 403; 10 Sup. Ct. Rep. 854; 34 L. ed. 222. 8139 U.S. 306; 11 Sup. Ct. Rep. 607; 35 L. ed. 183. 97 How. 1; 12 L. ed. 581. 1012 Wh. 19; 6 L. ed. 537. 11180 U.S. 109; 21 Sup. Ct. Rep. 302; 45 L. ed. 448. 123 Wall. 407; 18 L. ed. 182. Law or THE UnitTEep StTaTEs 437 two or more States.”’ This precise question is more par- ticularly discussed in a later chapter dealing with suits between States. Courts will exercise jurisdiction when private rights are in- volved In all of the foregoing cases the courts have held them- selves bound by the positions assumed by the executive and legislative departments. When, however, private justiciable rights have been involved in a suit, the court has indicated that it will not refuse to assume jurisdiction even though questions of extreme political importance are also necessarily involved. Thus, as has been set forth in another chapter, treaties entered into by the United States not only bind the United States internationally, but create municipal law for in- dividuals so far as their personal rights and property are concerned. Thus a treaty having been entered into the courts will follow its terms even when, by doing so, it has to go counter to the position previously assumed by the executive department, or, indeed, contended for by the government in the case at bar.! Courts will not perform administrative functions From the foregoing it appears that the courts them- selves decline to assume jurisdiction with reference to matters of a political character. So also, they have held that it is beyond the constitutional power of Congress to impose upon them the performance of duties essentially administrative in nature. The instances in which the lower Federal courts have refused to perform administra- tive functions are considered in a later chapter. So also, it has been held that these courts sitting as equity tribunals 13 Ex parte Cooper, 143 U.S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232; The La Ninfa, 75 Fed. Rep. 513. 438 PRINCIPLES OF CONSTITUTIONAL LAw may exercise only those powers of English courts of chan- cery which were judicial in character, and not those exer- cised by the chancellor as the representative of the King and by virtue of the King’s prerogative as parens patriae.“4 14 Fontain v. Ravenel, 17 How. 369; 15 L. ed. 80. CHAPTER XLIII THE LAW ADMINISTERED BY FEDERAL COURTS Federal courts and international law Thus far in our consideration of the Federal courts we have been concerned with their organization and fields of jurisdiction. We turn now to the inquiry as to the law which they administer. When exercising jurisdiction determined by the nature of the subjects litigated, which subjects have been placed by the Constitution within the legislative control of Congress, the Federal courts of course administer the Federal statutes and the Constitution so far as it is self- executory. In one class of cases, maritime and admiralty matters, the grant by the Constitution of judicial power has been construed to carry with it a grant of legislative power to provide the law to be applied. Where the Federal courts obtain jurisdiction wholly because of the character of the parties, the Federal courts, generally speaking, ap- ply the State or other law which would apply were the suits brought in the State courts. The exceptions to this rule have in a measure been already considered in connec- tion with the impairment of the obligation of contracts, and will be further considered in the next following sec- tion. In the present section will be considered the force and applicability of principles of international law in the Federal courts. In so far as applicable, American courts apply estab- lished doctrines of international law. Not, however, in the sense that they apply a body of law which has not 439 440 PRINCIPLES OF THE CONSTITUTIONAL been derived from and based upon the sovereign will of the American State, but upon the theory that this body of rules is first impliedly adopted by the State and thus made a portion of its own municipal law. Resting thus upon the implied assent and adoption of the United States, these principles of international law are subject to express modifications by statute. In the very early case of The Charming Betsy,! decided in 1804, it seems to have been accepted as a principle not needing argument that the court would be bound by an act of Congress providing a rule different from that laid down by international law, the only observation made being that ‘an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Where principles of international law are applicable they do not need to be proved as in the case of foreign municipal laws, but may be taken judicial cognizance of by the courts. That is, they may, if not already known to the court, be ascertained by the court by its own study of the proper sources of information. Federal criminal law There is no common, non-statutory, Federal criminal law. The Federal courts have no criminal jurisdiction save that given them by statute of Congress; and no act is recognized as a crime against the peace of the United States except as it has been declared such by act of Con- gress; and Congress has of course no constitutional power to create crimes and affix penalties to the commission thereof except as to subjects or in places which the Con- stitution places under Federal control. Thus, as a means 12 Cr. 64; 2 L. ed. 208. See, also, The Nereide, 9 Cr. 388; 3 L. ed. 769; Hylton v. Guyot, 159 U. 8. 113; 16 Sup. Ct. Rep. 139; 40 L. ed. 95; The Lottawanna, 21 Wall. 558; 22 L. ed. 654; and especially, The Paquete Habana, 175 U.S. 677; 20 Sup. Ct. Rep. 290; 44 L. ed. 320. Law or tHe Unrrep States 441 of compelling obedience to the laws which Congress is constitutionally empowered to enact, it may attach crim- inal penalties to their violation. But though the Federal courts have no common-law Federal jurisdiction, and though there is no common, non- statutory law for them to administer, they may, and in- deed have been authorized by statute to adopt common- law remedies and punishments where Congress has not otherwise provided. Thus § 722 of the Revised Statutes reads: “The jurisdiction in civil and criminal matters con- ferred on the District and Circuit courts by the provisions of this Title and of Title ‘Civil Rights’ and of the Title ‘Crimes,’ for the protection of all persons in the United States in their civil rights and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and law of the United States, shall be ex- tended to govern the said courts in the trial and disposi- tion of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.” ? Federal courts and the construction of State laws By the Constitution the Federal courts are given juris- diction of all suits between two or more States, between a State and citizens of another State, between citizens of 2 As to the modes of procedure, see Tennessee v. Davis, 100 U. 8. 257; 25 L. ed. 648. 442 PRINCIPLES OF THE CONSTITUTIONAL different States, between citizens of the same State claim- ing lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects. In this grant of jurisdiction the determining factor is not the nature of the matter litigated or the law involved, but the character of the parties to the suits. No question of Federal concern, and no construction of a Federal law or constitutional provision need be involved. The sub- jects to be determined may, and, indeed usually in this class of cases, depend wholly upon the interpretation and application of the laws of one or more of the States. The object in giving this jurisdiction to the Federal courts is thus not the protection of Federal rights, privileges, and immunities, but the provision of tribunals presumably more impartial than would be State tribunals when called upon to adjudicate between citizens of the State in which they are sitting and citizens of other States. In short, the theory is that the Federal courts when thus called upon by reason of the diversity of citizenship of the parties to construe and apply State law, are to con- sider themselves as ad hoc agents of the State, and, there- fore, under an obligation to apply that law as they find it. This obligation was recognized in § 34 of the original Judiciary Act of 1789, now § 721 of the Revised Statutes, which provides that: “The laws of the several States, except where the Constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they ap- ply.” This provision has remained unaltered to the present day, and constitutes § 721 of the Revised Statutes. What the proper construction of the State law is, which they are to apply, the Supreme Court of the United States 3 Cf. The Federalist, No. LXXX. Law oF THE UNITED STATES 443 has repeatedly declared is (subject to the exceptions herein- after to be described) to be determined by the interpreta- tion that has been given to it by the State that has en- acted it.4 The rule itself is, it is to be observed, rather one of comity and of statutory creation, than of constitutional necessity. Furthermore even this statutory provision is limited to actions at law. The entire field of equity pro- cedure is thus omitted from its control.® It does not clearly appear just how far the Federal courts, when exercising their equity jurisdiction, are dis- posed to go in refusing to follow the substantive rules and law of the States. It is, however, quite clear that they take a proper stand when they assert that their equity jurisdiction may not in any way be burdened by State law either by way of definition of what shall constitute equitable causes of action, or what procedure shall be followed or remedies applied. But in not a few cases the language, though for the most part obiter, is much broader than this, and indicates an apparent willingness to go beyond this and refuse to follow State law, even in statute form, with reference to substantive matters of law as dis- tinguished from rules of procedure and remedies. Rules of evidence and procedure Generally speaking, Congress may of course provide the rules of evidence to be adopted by the Federal courts and itself establish, or empower the courts themselves to establish, the rules governing their procedure in the trial of cases, the preparing and printing of records, the perfect- ing of appeals, etc. ” -# Elmendorf v. Taylor, 10 Wh. 152; 6 L. ed. 289; Shelby Co. v. Guy, 11 Wh. 361; 6 L. ed. 495; Polk’s Lessee v. Wendell, 5 Wh. 293; 5 L. ed. 92. 5 Boyle v. Zacharie, 6 Pet. 635; 8 L. ed. 527. 6 Potter v. National Bank, 102 U. 8. 163; 26 L. ed. 111. 444 PRINCIPLES OF THE CONSTITUTIONAL Section 914 of the Revised Statutes provides that in the Federal courts in civil causes other than equity and admiralty, “the practice, pleadings and forms and modes of proceeding” shall conform ‘‘as near as may be” to the existing practice in the States in which they sit. There is thus left, even as to these causes, opportunity for vari- ance of practice whether because of constitutional neces- sity, as for example, with reference to jury trial, or be- cause of statutory direction. Thus the rules with reference to the compulsory production of documentary evidence, the amendment of pleadings, etc., are fixed by Federal statute. So also, it is held that Federal judges are not bound by State rules, with reference to instructing the jury, the granting of new trials, the submission of special issues to the jury, the preparation of a case for appeal, ete.” Unsettled construction of State law In Green v. Neal * it was held that where a State court had changed its former construction of a law, the Federal courts, upon a subsequent case coming before them, should do likewise and thus keep ever in accord with the latest decisions of the State courts. It would appear, however, that though in general the Federal courts when called upon to apply State laws will follow the last interpretation given to them by the re- spective State courts, this will not necessarily be done where a change of construction by the State courts has been a recent one, and not supported by such a line of decisions as to have become, to use the language of the opinion in Shelby v. Guy,® “a fixed and received construc- tion,” and especially where the earlier construction is one 7See Bates, Federal Procedure at Law. 86 Pet. 291; 8 L. ed. 402. 911 Wh. 361; 6 L. ed. 495, Law or THE UNITED STaTEs 445 that for a considerable period of time had been the uni- formly accepted one in the State courts. As will later appear, the Supreme Court has held quite firmly to the doctrine that the construction by the State courts of the law relating to real property is to be followed by the Federal courts, but in the recent case of Kuhn ». Fairmont Coal Co." the court hold that this shall be the practice only where the State determinations have be- come established rules of property and action prior to the accruing of the rights of the parties litigant. In an earlier chapter have been considered the circum- stances under which the Federal courts refuse to be bound by the construction given to State law by the State courts when inpairment of the obligation of contracts is involved. Federal courts and the common law The general principle may be stated that there is no Federal common law; in other words, that the law which the Federal courts apply consists wholly and exclusively of the Federal Constitution, treaties, the statutes of Con- gress, and the laws common or statutory of the several States of the Union. The common law of the States consists of the principles of the English common law, developed and modified by American custom and judicial precedent. Having this great substratum of the English common-law principles, the non-statutory law of the several States is, in very many respects, the same throughout the United States. But in other respects, statutory enactment and divergent customs and judicial determinations have led to important differences. In general, however, excepting where statutes have expressly amended the English common law as it was at the time of the separation from England, or where clear 10215 U. 8. 602; 30 Sup. Ct. Rep. 140; 54 L. ed. 228. 446 PRINCIPLES OF THE CONSTITUTIONAL judicial dicta to the contrary are to be found, the general doctrines of the English common law are held to be in force. Strictly applying the doctrine that the Federal courts, when exercising jurisdiction derived from the character of the parties to the causes tried, will apply the laws of the States applicable thereto, there is left no opportunity for the creation of a true Federal common law, outside and independent of the Federal Constitution and the treaties entered into and the laws passed in pursuance thereof. That the Federal courts have no jurisdiction derived directly from the common law has not been questioned since the early case of Hx parte Bollman.” That the Federal courts not only have no common- law jurisdiction, but that, generally speaking, there is no Federal common-law as distinguished from statute law (Constitution, treaties, acts of Congress) was declared in the comparatively early case of Wheaton v. Peters.® Interstate commerce and common law This general doctrine that there is no Federal common- law requires, however, some explanation, if not qualifica- tion. In the first place, with reference to those matters of which interstate commerce is the most important ex- ample, general common-law principles are held, in the absence of express legislative provisions to the contrary, to apply,'* and the principle here stated would seem to be 11 Louisiana, whose law is founded on the Roman civil law, is an exception to this, but statute and judicial practice have brought even here the law a long way towards conformity to the common law. 124 Cr, 75; 2 L. ed. 554. 138 Pet. 591; 8 L. ed. 1055. 14W. U. Tel. Co. v. Call Publishing Co., 181 U. S. 92; 21 Sup. Ct. Rep. 561; 45 L. ed. 765. Law oF THE UNITED STATES 447 applicable with reference to all other matters falling within the control of the Federal Government. General commercial law In Olcott v. The Supervisors * Justice Strong, speaking for the court, says: “It must be kept in mind that it is only decisions upon local questions, or adjudications upon the meaning of the Constitution or statutes of a State, those which are peculiar to the several States, which the Federal courts adopt as rules for their own judgments.” The doctrine that when the question is not one of pecu- liarly local law and interest, the Federal courts will deter- mine for themselves, without reference to the decisions of local courts, what the law is, even though it be with refer- ence to subjects exclusively within the legislative control of the States, and over which the Federal courts obtain jurisdictional power only by reason of the citizenship of the parties litigant, has received special application in the field of commercial law. This principle was first laid down in the Supreme Court in the case of Swift v. Tyson.!® The doctrine thus declared in Swift v. Tyson has con- tinued to guide the Supreme Court. Under its operation it has come about that it depends in many cases upon whether suit is brought in a Federal or a State court, as to what law will be held applicable to the matter in dispute. Summing up the discussion of the topic of Federal courts and State laws, it is apparent that in a number of directions the Federal courts, while deriving jurisdiction from the nature of the parties but presumably applying State law, have in fact built up for themselves a con- siderable body of law which is neither laid down in the Federal Constitution, treaties and laws of Congress nor 1516 Wall. 678; 21 L. ed. 382. 1616 Pet. 1; 10 L. ed. 865. 448 PRINCIPLES OF CONSTITUTIONAL LAW in conformity with the laws of the States as determined by their respective tribunals. Whether this body of law may properly be termed Federal common law may possibly be questioned. It is unquestionably Federal in the sense that it owes it auth- ority to, and is applied by, the Federal courts; and it is common in that it may be enforced by the Federal courts throughout the Union. There is, however, good reason for holding that it is essentially State law. The fact that it differs from the law as laid down by the State courts is due to the peculiar circumstance that, under our judicial system, two co-ordinate sets of courts have the power to interpret and determine the common law of the several States. In other words, the Federal courts have taken the position that, when sitting for the enforcement of State laws, they do not sit as tribunals subordinate to the State courts, but as tribunals co-ordinate with them; and, there- fore, that they have an independent right to determine what is the non-statutory law of the State, using for that purpose the same sources of information that the State courts use in determining for themselves the same facts. CHAPTER XLIV SUITS BETWEEN STATES AND TO WHICH A STATE OR THE UNITED STATES IS A PARTY PLAINTIFF Article III of the Constitution provides that the judicial power of the United States shall extend ‘‘to controversies between two or more States.”’ The most important class of cases which have required the exercise of the authority granted to the Supreme Court to adjudicate between States have been those re- lating to disputed boundaries. Of this class a very con- siderable number of cases have been adjudicated. In the earlier of these cases it was urged that the juris- diction of the Supreme Court extended only to judicial controversies between the States, and that boundary disputes, being political in character, did not fall within the grant. The point was, however, overruled.! In Louisiana v. Texas,? complaint was made that the agents of the defendant State were administering certain quarantine laws in a manner that discriminated, and were intended to discriminate, against citizens of the complain- ant State. Upon demurrer it was held that that State had not a direct interest in the premises and was, there- fore, not entitled to bring suit. But in Missouri v. Illinois * it was held that a State’s interest in the health of its citizens was sufficiently sub- 1 For the argument, see especially the opinion of Justice Baldwin in Rhode Island v. Massachusetts, 12 Pet. 657; 9 L. ed. 1233. 2176 U.S. 1; 20 Sup. Ct. Rep. 251; 44 L. ed. 347. 7180 U.S. 208; 21 Sup. Ct. Rep. 331; 45 L. ed. 497. 29 449 450 PRINCIPLES OF THE CONSTITUTIONAL stantial and direct to enable it to prosecute a suit to prevent another State from constructing and operating a drainage system which would pollute a river furnish- ing the water supply to the inhabitants of the former State. In Kansas v. Colorado ‘ was raised the question whether one State may obtain an order from the Supreme Court restraining another State from operating irrigation works of such a character as to deplete the water supply of a river rising in that State and flowing into and through the complainant State. It was held that the controversy was of a justiciable nature, and would be entertained by the court. As to the law to be applied, the court held itself bound by the law of neither State, and declared: “Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, State law, and international law as the exigencies of the particular case may demand.” The case of Georgia v. Tennessee Copper Co.,’ though not one between States, illustrates a further definition by the Supreme Court of what will constitute a justiciable interest upon the part of a State enabling it to seek relief by Federal judicial process. Here an injunction was granted, at the suit of the State of Georgia, to enjoin the defendant company located in the State of Tennessee from discharging noxious gases from its works over the border of the State upon the territory of the plaintiff. In its opinion the court observed that it is proper to grant relief to a State, as a quasi-sovereign body, under cir- cumstances which would not warrant it in a suit between private persons. The interesting cases of New Hampshire v. Louisiana,® 4185 U.S. 125; 22 Sup. Ct. Rep. 552; 46 L. ed. 838. 5 206 U. 8. 230; 27 Sup.-Ct. Rep. 618; 51 L. ed. 1038. 6108 U.S. 76; 2 Sup. Ct. Rep. 176; 27 L, ed. 656. Law or THE UNITED SraTES 451 and South Dakota v. North Carolina’ are considered in the chapter dealing with the suability of the States. Suits of States against individuals The question as to the character of interests requisite for the institution and maintenance of suits by the States of the Union has necessarily to be considered as well when individuals have been proceeded against as when States have been the parties defendant. The case of Georgia v. Tennessee Copper Co. has been spoken of in the preceding paragraph. A few other cases will sufficiently indicate the character and extent of this branch of the Federal judicial power. In Pennsylvania v. Wheeling & B. Bridge Co! upon suit of the plaintiff State the defendant was, by decree, ordered to remove or elevate a bridge which, under color of a Virginia statute, it was constructing, on the ground that it obstructed navigation to and from the ports of Pennsylvania, and that the State, as a State, was in- terested directly in having the obstruction removed. In Wisconsin v. Pelican Insurance Co.° was raised the very important question as to the right of a State to sue in the courts of another State of the United States to re- cover pecuniary penalties imposed by the criminal law of the plaintiff State. The court held that neither the judiciary article of the Federal Constitution authorized the Federal courts, nor the full faith and credit clause compelled the State courts to entertain such a suit. In Mississippi v. Johnson ” and Georgia v. Stanton 1! the Supreme Court refused to grant injunctions restraining the defendants from executing in the course of their 7192 U.S. 286; 24 Sup. Ct. Rep. 269; 48 L. ed. 448. 813 How. 518; 14 L. ed. 249. 9127 U.S. 265; 8 Sup. Ct. Rep. 1370; 32 L. ed. 239. 104 Wall. 475; 18 L. ed. 437. 16 Wall. 50; 18 L. ed. 721. 452 PRINCIPLES OF THE CONSTITUTIONAL official duties, an act of Congress which was alleged un- constitutionally to affect rights of the States. The political rights, rights of sovereignty, the court held were not sub- jects within the power of the judiciary to determine and protect. In Texas v. White !? proprietary rights of the State were involved, and jurisdiction was assumed by the court and relief granted. So also, in Craig v. Missouri,!* Florida ». Anderson,!* and Alabama v. Burr! proprietary rights were involved and jurisdiction exercised. Suits between the United States and a State of the Union Article III does net in express terms grant jurisdiction in suits between a State and the United States, but in a number of instances suits brought by the United States against individual States of the Union have been enter- tained and decided by the Supreme Court. In United States v. North Carolina “ an action of debt upon certain bonds issued by the defendant State was tried and determined upon its merits, judgment being rendered in favor of the defendant. No question of juris- diction was discussed in the briefs of counsel or in the opin- ion of the court. In a later case, however, it was declared that “it did not escape the attention of the court, and the judgment would not have been rendered, except upon the theory, that_this court has original jurisdiction of a suit this later case the United States again appeared as plain- tiff in a suit against a State, this time with reference to a 127 Wall. 700; 19 L. ed. 227. 13.4 Pet. 410; 7 L. ed. 903. 491 U.S. 667; 23 L. ed. 290. 16 115 U.S. 413; 6 Sup. Ct. Rep. 81; 29 L. ed. 435. 16 136 U.S. 211; 10 Sup. Ct. Rep. 920; 34 L. ed. 336. 1 United States v. Texas, 143 U. S. 621; 12 Sup. Ct. Rep. 488; 36 L. ed. 285. Law or THE Unrirep Stats 453 matter of boundary. Here the question of jurisdiction was raised and carefully considered. Only since 1902 may it be said to have been certainly de- termined that the Supreme Court may, the United States consenting, assume jurisdiction in suits brought by a State of the Union against the United States. In Chisholm »v. Georgia,'® Chief Justice Jay had indicated, obiter, that such a suit would not be entertained for the reason that the court would be without power to enforce its orders should judgment be rendered against the defendant. In Florida v. Georgia, the United States was allowed by the court to intervene in a suit between two States, but without becoming one of the parties to the record. Also, in Mississippi v. Johnson * it was indicated that in a proper suit a bill might be filed by a State against the United States. Finally, in Minnesota v. Hitchcock,?! decided in 1902, jurisdiction was squarely asserted and exercised. In that case it was held that a suit by a State to enjoin the Secretary of the Interior of the United States from selling certain Indian lands, was a suit against the United States with reference to a matter regarding which it had consented to be sued. Suits between a State and foreign States or their citizens As regards controversies “between a State... . and foreign States, citizens, or subjects,” it may be said that no such suits have ever been brought, and one can, there- fore, only speculate as to the extent of Federal judicial power under this clause. We do know, however, by ju- dicial determination, that neither a ‘Territory;” 7? an 182 Dall. 419; 1 L. ed. 440. 1911 How. 293; 13 L. ed. 702. 204 Wall. 475; 18 L. ed. 437. 21185 U.S. 873; 22 Sup. Ct. Rep. 650; 46 L. ed. 954. 22 Smith v. United States, 1 Wash. Terr. 269. 454 PRINCIPLES OF CONSTITUTIONAL Law Indian tribe; 7? nor the District of Columbia ** is a “State” within the meaning of the word as used in this clause of the Constitution. Whether or not, if a suit were brought by a foreign State, it would be entertained by the Supreme Court, is very doubtful. A foreign State could not, of course, be compelled to appear as a party defendant in such a suit, and reason might, therefore, seem to suggest that it should not be permitted to appear as a party plaintiff unless, of course, the defendant State should give its consent. Madison took this view: “I do not conceive,” he said, ‘‘that any controversy can ever be decided in these courts between an American State and a foreign State, without the consent of the parties. If they consent, provision is here made.’ Story, in his Commentaries, takes the same view. On the other hand, however, as we shall find in the next chapter, the Supreme Court has entertained suits brought by the United States against States of the Union without their consent, although they are not permitted to sue the United States without its consent. Still different is the obiter doctrine declared by the Supreme Court in the case of Hans v. Louisiana ap- proving the dissenting opinion of Justice Iredell in Chis- holm v. Georgia, according to which it was declared not to have been the intention of the framers of the Constitu- tion to create any new remedies unknown to the law. From this it would follow that the Supreme Court could not take jurisdiction of a case between a foreign State and a State of the Union, even with the consent of both parties. 23 Cherokee Nation v. Georgia, 5 Pet. 1; 8 L. ed. 25. 24 Hepburn »z. Ellzey, 2 Cr. 445; 2 L. ed. 332. CHAPTER XLV THE SUABILITY OF STATES A sovereign State may not be sued without its consent That a sovereign is not subject to suit, without its con- sent, is a principle that has come down unchallenged since the time of Rome. It has found expression in the rule that “the sovereign can do no wrong” and has been adopted by the English Common Law as fully as, indeed, if any- thing, more fully than by the systems of jurisprudence founded upon the Civil Law. In Civil Law countries the State is often held liable in actions based upon the torts of its agents as well as in those of a contractual nature; whereas, in the United States the individual whose rights have been violated by persons acting under State authority has no remedy against the State, except by express permission, and this permission has never been granted except with reference to contract claims. The injured individual has, however, right of action against the public officials by whose illegal acts he has been wronged, but these officials may be financially irresponsible, and thus the remedy, in fact, be of no value. In the case of Chisholm v. Georgia,’ decided in 1793, it was held that, under the terms of the Federal Constitution, which provided that the judicial power of the Federal Government should extend to all cases “between a State and citizens of another State,’”’ a State may be made party defendant in a suit brought by a citizen of another State. 12 Dall. 419; 1 L. ed. 440. 455 456 PRINCIPLES OF THE CONSTITUTIONAL The popular objection to this decision immediately aroused and manifested in the adoption of the Eleventh Amendment is a matter of familiar history. The phrase- ology that the judicial power of the United States “shall not be construed to extend,”’ instead simply that it “shall not 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, was employed in order to give to the Amendment a retroactive effect, and thus defeat suits similar to that of Chisholm v. Georgia, already pending. And thus when the first of these pending cases came before the Supreme Court, it declared, in a unanimous opinion, that all these cases should be dismissed because of want of jurisdiction.” It will be observed that the Eleventh Amendment does not in terms declare that the judicial power of the United States shall not be construed to extend to suits brought against a State by its own citizens. Nor is there anywhere in the Constitution a declaration that the United States itself shall not be sued by one of its own citizens. The Supreme Court has, however, held that, in the absence of an express grant of jurisdiction, such suits are, by the generally accepted principles of public law, beyond the ' jurisdiction of the courts. Indeed, in the case of Hans ». Louisiana * the court held that the decision in Chisholm v. Georgia had been an erroneous one in holding that a State could be sued by a citizen of another State. In New Hampshire v. Louisiana * the Supreme Court refused to countenance the attempt of citizens to evade the operations of the Eleventh Amendment by transferr- ing their pecuniary claims to another State and having that State bring suit in their behalf. 2 Hollingsworth v. Virginia, 3 Dall. 378; 1 L. ed. 644. 3134 U.S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842. 4108 U.S. 76; 2 Sup. Ct. Rep. 176; 27 L. ed. 656. Law OF THE UNITED STATES 457 In the case of South Dakota v. North Carolina,® how- ever, the true party of interest was shown to be the plain- tiff State. Jurisdiction was assumed by the Supreme Court and a judgment and decree awarded against the defendant State. Cohens v. Virginia ® held that the Eleventh Amendment did not prevent a suit, originally instituted by a State against an individual, from being appealed to the Supreme Court by the individual for the purpose of asserting a constitutional right as a defense against the charge made against him by the State. In Bank of the United States v. The Planters’ Bank of Georgia’ it was held that a suit against a corporation chartered and partly owned by the State was not a suit against the State. The principle laid down in this case was again applied in the cases of Briscoe v. Bank of Ken- tucky,’ and Bank of Kentucky v. Wister, although the State in these cases was the exclusive owner of the stock of the bank. Effect of Eleventh Amendment upon Federal constitutional rights guaranteed against State violation In a series of great cases the Supreme Court of the United States has laid down the doctrine that the Eleventh Amendment does not grant to States nor to their agents a power, unrestrainable by judicial process, either to inter- fere with the exercise of Federal rights or, under color of unconstitutional legislation, to violate the private rights of individuals. Where this danger has been threatened, writs of injunction have been issued, and, for the perform- 5 192 U.S. 286; 24 Sup. Ct. Rep. 269; 48 L. ed. 448. 66 Wh. 264; 5 L. ed. 257. 79 Wh. 904; 6 L. ed. 244. 811 Pet. 257; 9 L. ed. 709. 92 Pet. 318; 7 L. ed. 487. 458 PRINCIPLES OF THE CONSTITUTIONAL ance by State officials of purely ministerial acts prescribed. by law, mandamus has been awarded.” Acting under the right thus declared of preventing a State, or rather the officials of a State, from acting under laws unconstitutional, either because impairing the ob- ligation of contracts, or taking property without due process of law the Federal courts, while declaring them- selves unable to secure to private individuals an enforce- ment of their claims against States, have nevertheless been able to extend their protecting power to prevent the States from taking action upon their part to enforce against individuals and against Federal officials claims not sup- ported by valid laws. In a number of cases, however, the Supreme Court has not permitted this principle of the legal responsibility of the agents of a State to countenance what is in actual effect a suit not against them personally, but against them offici- ally as agents of the State, and, therefore, in reality against the States themselves whose officials they are. Nor has the court been willing to command the performance by a State official of other than mere ministerial acts in which no official discretion has been involved. The distinctions which have had to be drawn are, however, in many in- stances, very fine, and cannot be briefly outlined. The more important cases are cited in the footnote." 10 Hans v. Louisiana, 134 U.S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842; United States v. Peters, 5 Cr. 115; 3 L. ed. 53. 1! Louisiana v. Jumel, 107 U. 8. 711; 2 Sup. Ct. Rep. 128; 27 L. ed. 448; Hagood v. Southern, 117 U. 8. 52; 6 Sup. Ct. Rep. 608; 29 L. ed. 805; Cunningham v. Macon & B. R. R. Co., 109 U. 8. 446; 3 Sup. Ct. Rep. 292; 27 L. ed. 992; Pennoyer v. McConnaughy, 140 U.S. 1; 11 Sup. Ct. Rep. 699; 35 L. ed. 363; In re Ayers, 123 U. 8. 443; 8 Sup. Ct. Rep. 164; 31 L. ed. 216; Antoni v. Greenhow, 107 U.S. 769; 2 Sup. Ct. Rep. 91; 27 L. ed. 468; In re Tyler, 149 U.S. 164; 13 Sup. Ct. Rep. 785; 37 L. ed. 689; Scott v. Donald, 165 U. 8S. 58; 17 Sup. Ct. Rep. 265; 41 L. ed. 632; Smith v. Reeves, 178 U.S. Law oF THE UNITED STATES 459 Suits to recover specific pieces of property held by the State Thus far in the discussion of the suability of the State, according to American constitutional law, reference has been had to suits involving the recovery of money judg- ments or the issuance of writs of mandamus or of injunc- tion to State officials. There now is to be considered the question whether the principles which have been laid down are sufficient to warrant suits brought by individuals to recover possession of specific pieces of property held, in their official capacities, by officials of the States or of the United States. In United States v. Clark !? it was declared by Marshall that the United States was not suable of common right, and unless the plaintiff could bring his suit within the terms of some permissive act of Congress, the court could not entertain it. In the Siren v. United States '° this was quoted with approval and the further observation made that the exemption from suit extends to property of the United States. The interesting point was, however, made in this case, that though a lien attaching to a piece of property owned by the State is not enforceable, the lien itself may exist, and becomes enforceable as soon as the State voluntarily sells or otherwise parts with the actual possession of the piece of property. In United States v. Lee,!* however, the court held that 436; 20 Sup. Ct. Rep. 919; 44 L. ed. 1140; Poindexter v. Greenhow, 114 U. 8. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185; McGahey ». Vir- ginia, 135 U. S. 662; 10 Sup. Ct. Rep. 972; 34 L. ed. 304; Reagan v. Trust Co., 154 U. 8. 362; 14 Sup. Ct. Rep. 1047; 38 L. ed. 1014; Fitts v. McGhee, 172 U. 8S. 516; 19 Sup. Ct. Rep. 269; 43 L. ed. 535; In re Young, 209 U. S. 123; 28 Sup. Ct. Rep. 441; 52 L. ed. 714. See, also, Willoughby Constitutional Law of the United States, Chap- ter LIV, “The Suability of States.” 28 Pet. 436; 8 L. ed. 1001. 187 Wall. 152; 19 L. ed. 129. 14106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171. 460 PRINCIPLES OF CONSTITUTIONAL LAW a suit in ejectment against Federal officers in charge of property ownership of which was claimed by the United States (its attorney-general intervening in the suit for the purpose of setting up this claim) was not a suit against the United States. In Tindal v. Wesley, this doctrine was applied to one of the States of the Union. 16 167 U.S. 204; 17 Sup. Ct. Rep. 770; 42 L. ed. 137. 16 But see Stanley v. Schwalby, 162 U. S. 255; 16 Sup. Ct. Rep. 754; 40 L. ed. 960; and also the definition of the doctrine of United States v. Lee as given in Cunningham v. Macon & B. R. R. Co., 109 U. S. 446; 3 Sup. Ct. Rep. 292; 27 L. ed. 992. The latest judicial phases of the suability of the United States are to be found in Belk- nap v. Schild, 161 U. S. 10; 16 Sup. Ct. Rep. 443; 40 L. ed. 599; Minnesota v. Hitchcock, 185 U. S. 373; 22 Sup. Ct. Rep. 650; 46 L. ed. 954; Oregon v. Hitchcock, 202 U.S. 60; 26 Sup. Ct. Rep. 568; 50 L. ed. 935, and International Postal Supply Co. v. Bruce, 194 U.S. 601; 24 Sup. Ct. Rep. 820; 48 L. ed. 1134. CHAPTER XLVI ADMIRALTY AND MARITIME JURISDICTION Admiralty and maritime jurisdiction defined Section II, Clause I, of Art. III provides that “the judicial power shallextend . . . . to all cases of admiralty and maritime jurisdiction.” Maritime jurisdiction, as the name itself indicates, is the jurisdiction over matters relating to the sea. To a very considerable extent, then, admiralty jurisdiction and maritime jurisdiction are of like meaning. The terms are not, however, synonymous. Admiralty now has refer- ence, primarily, to the tribunals in which the causes are tried; maritime to the nature of the causes tried. The admiralty and maritime jurisdiction of the United States is then of a double nature; that over cases depending upon acts committed upon navigable waters; and that over contracts, and other transactions connected with such navigable waters. In the former class of cases the juris- diction is given by the locality of the act; in the latter case by the character of the act or transaction. The cases falling within the Federal admiralty juris- diction because of the locality, 7. e., of acts upon the high seas and other navigable waters, are, broadly speaking, of two classes; those of prize, arising juri belli; and those acts, torts, injuries, etc., which have no reference to a state of war. Those cases which fall within the admiralty jurisdiction purely because of their maritime nature are those arising out of contracts, claims, etc., with reference to maritime 461 462 PRINCIPLES OF THE CONSTITUTIONAL operations. In actions of tort the test determining juris- diction is locality; in contracts it is the subject matter. According to the earlier decisions, the Federal admiralty jurisdiction was confined to cases arising upon the high seas and rivers as far as the ebb and flow of the tide ex- tended. Beginning, however, with Waring v. Clarke, and The Genesee Chief,” decided in 1851, the earlier cases were overruled, and the Federal power declared to extend over all waters that are navigable. The Federal admiralty jurisdiction being wholly inde- pendent of the power to regulate interstate commerce, and attaching whenever the cause of action has arisen on navigable waters, jurisdiction extends over all cases arising upon navigable waters even though they be wholly within the confines of a particular State, provided they be connecting links in a chain of commercial communication between the States. In The Daniel Ball * the court say: “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are naviga- ble in fact when they are so used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be con- ducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress in contra- distinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” 1 Waring v. Clarke, 5 How. 441; 12 L. ed. 226; New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344; 12 L, ed. 465. 212 How. 443; 13 L. ed. 1058. 310 Wall. 557; 19 L. ed. 999. Law or THE Unirep States 463 In The Montello ‘ the same principle was applied to the Fox River of Wisconsin, although its navigability was interrupted by rapids and falls around which portages had to be made. Federal admiralty jurisdiction is not affected by the fact that at the time of the accruing of the cause of action the vessel or vessels concerned are on a voyage between ports of the same State.® In later cases the admiralty jurisdiction of the United States has been construed to extend to cases arising on canals. In the first of the cited cases it was held that the canals are navigable waters within the meaning of admiralty law; in the latter that canal-boats are ships or vessels within the meaning of the same law. It has also been held that repairs made to or injuries sustained by, a ship while in dry dock are maritime in character, but the dry dock not being itself used for the purpose of navigation is not a subject of salvage service or of admiralty jurisdiction.” Admiralty jurisdiction does not carry with it general political jurisdiction over navigable waters It has been held in an unbroken line of cases that the grant to the United States of admiralty jurisdiction does not, in itself, carry with it any general or political juris- diction. That is to say, unless Congress has expressly so legislated the State courts still have exclusive cognizance of crimes committed upon their navigable waters, and upon the seas within a maritime league of the shore. In 420 Wall. 430; 22 L. ed. 391. 5 The Belfast, 7 Wall. 624; 19 L. ed. 266, overruling previous cases as to this. 6 Perry v. Haines, 191 U. 8. 17; 24 Sup. Ct. Rep. 8; 48 L. ed. 73. 7 Cope v. Vallette Dry Dock Co., 119 U. S. 625; 7 Sup. Ct. Rep. 336; 30 L. ed. 501. 464 PRINCIPLES OF THE CONSTITUTIONAL the leading case of United States v. Bevans® Marshall points out that the delegation to the Federal judiciary carries with it, indeed, a legislative power to render that jurisdiction effective, but it does not operate to take the navigable and territorial waters of a State from without the general jurisdiction of the State in the manner that districts purchased by the Federal Government, with the consent of the legislature of a State, for the erection of forts, arsenals, etc., are so removed. Admiralty courts During the colonial period admiralty jurisdiction in this country was exercised by vice-admiralty courts created by commissions from the British High Court of Admiralty, authority being given to the colonial author- ities by their charters to establish these tribunals. After the Declaration of Independence, however, each of the States, in the exercise of their several sovereignties, estab- lished admiralty courts with varying powers. In 1777 Congress appointed a standing committee to entertain appeals from the State courts in cases of maritime prizes. Under the Articles of Confederation there was established by Congress a “Court of Appeals in cases of Capture,” to which appeals might be taken from the State admiralty courts. ; Under the present Constitution admiralty jurisdiction is wholly withdrawn from the States and vested exclusively in the Federal courts. By the Judiciary Act of 1789 this jurisdiction was vested in the district courts, where it has since remained. Section 711 of the Revised Statutes provides that the district courts shall have jurisdiction: “Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, 83 Wh. 336; 4 L. ed. 404. Law oF THE UNITED STATES 465 in all cases, the right of a common-law remedy, where the: common-law is competent to give it.’ In all prize cases an appeal lies direct from the district to the Supreme Court. In other admiralty cases an ap- peal lies to the Circuit Courts of Appeals. State legislative powers with reference to admiralty matters It will be observed that the act vesting admiralty juris- diction in the district courts saves to suitors, in all cases, their right to a common-law remedy, where that law is competent to give it. The effect of this provision is not to permit the State courts to exercise in any way admiralty jurisdiction, but to give to the suitor the option of pursu- ing in those courts any common-law right that he may have.® But in no case may a State court entertain a suit in the nature of an admiralty proceeding, that is, to enforce.a maritime lien in rem against a vessel. This is deter- mined in The Moses Taylor ® and Hine v. Trevor.!! But though the State courts may not exercise ad- miralty jurisdiction, it has been held that the State legis- latures may by statute create maritime rights, which the Federal district courts, sitting as admiralty tribunals, . will enforce. In other words, the State law-making body may create admiralty rights which the State courts may not enforce as such, but which the Federal courts may.” Legislative powers of Congress flowing from admiralty and maritime jurisdiction : The Constitution does not in express terms confer upon 9 Sherlock v. Alling, 93 U. S. 99; 23 L. ed. 819. 104 Wall. 411; 18 L. ed. 397. 4 Wall. 555; 18 L. ed. 451. 1 The Lottawanna, 21 Wall. 558; 22 L. ed. 654; The Glide, 167 U.S. 606; 17 Sup. Ct. Rep. 930; 42 L. ed. 296; The Hamilton, 207 U.S. 398; 28 Sup. Ct. Rep. 133; 52 L. ed. 264. 30 466 PRINCIPLES OF CONSTITUTIONAL Law -Congress the power to legislate with reference to matters maritime, but the grant to the judiciary of jurisdiction over all cases of admiralty and maritime jurisdiction, a jurisdiction which has, as we have seen, been held to be exclusive, has been construed to give to the Federal legis- lature a power over the law which the Federal courts are thus called upon to interpret and apply.¥ Though, as appears from the foregoing, Congress, and to a certain extent the State legislatures as well, have the power to fix the substantive law which the Federal ad- miralty courts are to apply, it is not within the power of these law-making bodies to determine the sphere of ad- miralty jurisdiction. This, it has been held, is a purely judicial function. 13 Bx parte Garnett, 141 U. S. 1; 11 Sup. Ct. Rep. 840; 35 L. ed. 631; Providence & N. Y. 8.8. Co. ». Hill Mfg. Co., 109 U. 8. 578; 3 Sup. Ct. Rep. 379; 27 L. ed. 1038. CHAPTER XLVII IMPEACHMENT Constitutional provisions The constitutional provisions for impeachment are contained in the clauses cited in the footnote.! It is to be observed that the Constitution makes no mention as to what persons shall be subject to impeach- ment. According to English precedent all citizens are sub- ject to impeachment, and it was at first asserted by some that the same is true in this country. The limitation of impeachment to the President and the Vice-President and to civil officers of the United States would, however, seem to be implied in the provision that these persons shall be removed from office on impeachment, and that judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold office under the United States, and it is now generally agreed that only civil officers may be impeached. Who are civil officers Military officers are not subject to impeachment. No attempt has ever been made to impeach any officer of the army or navy, and, therefore, there have been no pronouncements upon this point. But there has been no question as to this doctrine. Members of Congress are not officers of the United States, not being commissioned by the President. This 1 Art. I, § 2, el. 5; Art. I, § 3, cl. 6; Art. I, § 3, cl. 7; Art. II, § 2, el. 1; Art. IL, § 4. 467 468 PRINCIPLES OF THE CONSTITUTIONAL point was made at the time of the impeachment of Senator Blount, a resolution to the effect that he was an officer being negatived by a vote of fourteen to eleven. In the case of the impeachment of Secretary of War Belknap, the issue was raised whether a civil officer, in anticipation of impeachment, may by resignation escape from liability-to trial by the Senate. By a vote of thirty- seven to twenty-nine, seven not voting, it was held that the jurisdiction of that body had not been ousted by the resignation and by a later vote it was held that for this decision a two-thirds approving majority was not needed. And it may be noted that, in general, it has been held that the constitutional requirement as to the majority needed for conviction applies only to the final votes upon the question of guilt. For what offenses impeachment will lie The constitutional provision is that impeachment may be had for “treason, bribery, or other high crimes or mis- demeanors.” _. The terms ‘‘treason”’ and “bribery” require no defini- tion. Treason is, indeed, defined in the Constitution itself, and the offense of bribery is sufficiently definite and well known. To the term “high crimes and mis- demeanors,” practice has given a broad meaning that brings within its connotation offenses not penal by Federal statute. In the first four impeachment trials not a single charge rested upon a statute, and the same was true of some at least.of the articles in most of the other trials. ~ It would also seem to be established that the offense charged need not be one committed in the discharge of official duties. ‘In short then, it may be said that impeachment will lie. whenever a majority of the House of Representatives are for any reason led to hold that the incumbent of a Law oF THE UNITED STATES 469 civil office under the United States is morally unfit for and should no longer remain in his position of public trust. Punishment It is constitutionally provided that conviction upon impeachment must result in removal from office. To this may be added disqualification to hold and enjoy in the future any office of honor, trust or profit under the United States. When a criminal offense has been committed the party convicted is still ‘liable and subject to indict- ment, trial, judgment and punishment according to law.” The power of the President to grant reprieves or to pardon does not extend to cases of impeachment. Effect of dissolution of Congress Whether or not the dissolution of the House preferring the impeachment operates to terminate the charges made has not been determined, the occasion for the determina- tion not having arisen. Reason and analogy with ordinary criminal proceedings and with English practice would seem to answer the question in the negative. It is scarcely necessary to say that the proceedings and determinations of the Senate when sitting as court of impeachment are not subject to review in any other court. CHAPTER XLVIII THE ELECTION OF THE PRESIDENT AND VICE-PRESIDENT The Executive Department The President and Vice-President are the only Federal executive officers for whose selection and functions the Constitution makes direct provision, unless, indeed, one includes the Senate to which is intrusted participation in the executive functions of appointments and approval of treaties. That certain great executive departments should be legislatively established was taken for granted, as shown, for example, in the provision that the President “may require the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relating to the duties of their respective offices;”’ and that the appointment of inferior officers may be by Congress vested in the “Heads of Departments.’”’ From time to time these great executive departments, as well as certain ‘‘commissions” and other executive bodies not falling within any one of the “departments,” have been created. The description and organization of these bodies does noi fall within the scope of a treatise on con- stitutional law. We shall be concerned, however, with the manner in which all these executive departments are integrated into one great system with the President as its head and the extent of the directive power which the President may exercise over the civil and military service, and which the higher executive officers may exer- cise over their subordinates. In the present chapter will be considered the qualifica- 470 Law oF THE UnitTep Sratss 471 tion for the Presidency and Vice-Presidency, and the constitutional provisions governing the selection of per- sons to fill these offices. Appointment of presidential electors—Plenary powers of the States The Constitution provides that “Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of representatives to which the State may be entitled in the Congress; but no senator or representative, or persons holding an office of trust or profit under the United States shall be appointed an elector.” It will be observed that the Constitution gives complete power to the States in the selection of presidential electors. The provision is that each State shall appoint in. such manner as the legislature thereof may direct. There is no requirement as to their election by the people. As a matter of fact during the early years under the Constitution in many of the States presidential electors were not elected at all, but appointed by the legislatures, and this practice did not wholly disappear until quite recently. South Carolina practiced legislative appoint- ment until 1860, and Colorado appointed in this manner in 1876. At the present time, in all the States, the electors are chosen by popular ballot on a general ticket. It is, however, within the power of the States to provide for their election by districts, and this was done in Michigan in 1892. The constitutionality of this law was questioned in the Supreme Court of the United States, but was up- held by that tribunal in McPherson v. Blacker. The States having plenary power over the appointment of electors may make provision by law for the contingency of an elector dying between the date of his appointment 1146 U.S. 1; 18 Sup. Ct. Rep. 3; 36 L. ed. 869. 472 PRINCIPLES OF THE CONSTITUTIONAL and the time for the casting of his vote, or by sickness or accident being prevented from casting his vote. Original provision of the Constitution as to election of Presi- dent and Vice-President —Inadequacy of According to the original provision of the Constitution the electors might vote for two persons without indicating which was their choice for President, and which for Vice- President. The person having the greatest number of votes was to be President, if such number were a majority of the whole number of electors appointed; and if there were more than one person having such majority, and having an equal number of votes, the House of Represen- tatives was authorized by ballot to choose one of them for President. If no person had a majority, the House was to choose the President from the five highest in the list. When so choosing the House was to vote by States, the representation from each State having one vote. In every case, after the choice of President, the person having the greatest number of votes was to be declared Vice- President; and if there should remain two or more having equal votes, the Senate was to choose them by ballot. Twelfth Amendment The inadequacy of the original constitutional provisions for the election of the President and Vice-President early became manifest. John Adams became Vice-President in 1796 though he did not receive half the votes. In 1800 Jefferson and Burr received the same number of votes, and each a majority. There was no question, however, that the electors desired that Jefferson should be Presi- dent and Burr Vice-President; but, had it not been for the patriotism of Hamilton and a few other Federalists, Burr would have been selected President though he had not been the choice of probably a single elector for that office. This experience was sufficient to lead in 1804 to Law or THE Unttep Statss 473 the adoption of the Twelfth Amendment in substitution for Clause 3 of § 1, of Art. II. Counting the votes With reference to the action of the Houses of Congress, after the selection of electors has been certified to them, the Twelfth Amendment, copying the language of the original provision of thé Constitution, declares that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.” The meaning of the last four words has been shrouded in doubt, and this doubt came very near to leading to serious consequences in 1876-1877. No declaration, it is to be observed, is made as to who shall do the counting, and therefore, who shall determine what votes shall be counted in case there is question as to their regularity or correctness. In 1876, as is well known, there were enough votes, the validity of which was contested, to determine the election. Upon the part of the Republicans it was claimed that the Vice-President (a Republican) should do the counting. The Democrats, however, asserted that the two Houses voting separately should perform this duty. As the Democrats were then in control of the lower House, and the Republicans of the Senate, this would have meant a deadlock. The impasse was finally broken, as is well known, by the very doubtful constitutional expedient of a special electoral commission to which all disputed cases should be submitted, the Congress being pledged to be guided by its decisions. Law of 1887 By a law of February 3, 1887,? the whole matter of the election of the President is attempted to be regulated. 224 Stat. at L. 393. For a valuable criticism of this act see Dougherty, The Electoral System of the United States. 474 PRINCIPLES OF THE CONSTITUTIONAL By the first section the second Monday in the January succeeding their appointment is fixed for the meeting of the electors and the giving of their votes. The postpone- ment from the date formerly in force, namely, the first Wednesday in December, is to give the States full oppor- tunity to determine any questions that may arise with reference to the appointment of their respective electors. The second section of the act declares: ‘If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for the final de- termination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such deter- minations shall have been made at least six days before the time fixed for the meeting of the electors, such deter- minations made pursuant to such law so existing on said day, and made at least six days prior to the said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”’ The effect of this section is, it will be seen, not to dele- gate to the States the counting of the electoral votes, but to determine what the two Houses of Congress, acting concurrently, will, under certain circumstances, consider conclusive evidence as to the regularity of the selection of the electors whose votes they are to count. The act goes on in § 3 to provide that the executive of each State shall, under the seal of the State, transmit to the Secretary of State of the United States a certificate showing what electors have been appointed, the votes cast for them, and, where there has been a controversy or contest, the manner in which settled. These certifi- cates the Secretary of State is to publish in some news- Law oF rue UnNITep States 475 paper, and at their first meeting send copies thereof to the two Houses of Congress. Each elector is also to be sup- plied with the same certificate, in triplicate, under the seal of the State. As determined by a previous law, one of these copies is to be sent by messenger to the President of the United States Senate at Washington, D. C., one to be forwarded to him by mail, and the third delivered to the judge of the district in which the electors assemble to cast their vote. Sections 4, 5 and 6 of the law regulate the counting by Congress of the electoral votes as reported by the State. The final section (7) provides that the joint meeting of the two Houses “shall not be dissolved until the count of electoral votes shall be completed, and the result de- clared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or other- wise under this act, in which case it shall be competent for either House, acting separately, in the manner here- inbefore provided, to direct a recess of each House, not beyond the next calendar day, Sunday excepted, at the hour of ten o’clock in the forenoon. But if the counting of the electoral votes and the declaration of the result shall have not been completed before the fifth calendar day next after such meeting of the two Houses, no further or other recess shall be taken by either House.” Presidential succession The Constitution provides that: “In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice-President, declaring what officer shall then act as 476 PRINCIPLES OF CONSTITUTIONAL LAW President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.” Act of 1792 The Act of March 1, 1792, relative to the election of the President and Vice-President also fixed the succession in case of the death, removal, resignation, or disability of these officers. It declared: ‘In case of removal, death, resignation or disability both of the President and Vice- President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives for the time being shall act as President of the United States until the disability be removed or a President shall be elected.” These sections of the act of 1792, though open to both constitutional and political objections, remained in force until 1886. By an act passed that year the President pro tempore of the Senate or the Speaker of the House no longer appear in the line of succession, their places being taken by heads of the executive departments in a stated order. The Constitution provides that the President and Vice- President shall hold office for the term of four years. The proper length of time and the propriety of forbidding re- election, were discussed in the Convention and the four- year period with eligibility to re-election finally agreed upon. Nothing is said in the Constitution as to the num- ber of times the same person may be re-elected President, but, as is well known, the propriety of restricting to two the number of successive terms has become firmly rooted in the American mind. CHAPTER XLIX THE POWERS AND DUTIES OF THE PRESIDENT By §I of Art. II, it is declared that “The executive power shall be vested” in the President. By § III it is required that ‘“‘he shall take care that the laws are faith- fully executed.” In ultimate resort, then, all Federal executive authority is in the President, and upon him lies the responsibility for seeing that the laws of the United States are faithfully executed, that is to say, that the armed and other forces of the Nation are, if necessary, employed to maintain in efficient operation the govern- ment of the United States over such districts as are under its sovereignty, and everywhere and under all circum- stances to protect its officers in the performance of their duties. In fulfilment of the responsibility thus constitutionally imposed, the President has, by necessary implication, the power to use all the specific powers conferred by the Con- stitution upon him. Chief of these is, of course, his authority as Commander-in-Chief of the land and naval forces of the Nation. He has also authority in many di- rections given him by statutes of Congress, with reference, for example, to the use of the militia, and to giving orders to subordinate executive officials. Aside from these express powers, and those necessarily implied in them, the President has no authority to act.? 1 But see In re Neagle, 185 U.S. 1; 10 Sup. Ct. Rep. 658; 34 L. ed. 55. In this case the court comes perilously near to holding, if in 477 478 PRINCIPLES OF THE CONSTITUTIONAL That is to say, the obligation to take care that the laws of the United States are faithfully executed, is an obli- gation-but confers in itself-no-pewers. It is an obligation which is to be fulfilled by the exercise of those powers which the Constitution and Congress have seen fit to confer. At the time of the threatened resistance of the people of the Southern States to Federal law in 1860, President Buchanan, under the advice of his Attorney- General, held himself practically powerless because of the lack of statutory authority to take the necessary steps. President Lincoln, upon his assuming office, gave a broader interpretation to existing laws conferring authority upon him, and Congress soon by statute further increased his powers. The president as administrative chief The functions of a chief executive of a sovereign State are, generally speaking, of two kinds—political and ad- ministrative. In different countries, with different gov- ernmental forms, the emphasis laid respectively upon each of these functions varies. In some, the powers and in- fluence of the executive head are almost wholly political. In others, as for example Switzerland, the political duties of the executive are so fully under legislative control that the chief importance is upon the administrative side. In the United States it was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose functions should, in the main, consist in the performance of those political duties which are not subject to judicial’ control. It is quite clear that fact it did not actually hold, that the President has inherent execu- tive power; that is, powers inherent in him as chief executive, and not as expressly given him by the Constitution, or implied from the powers expressly given, or constitutionally granted to him by Congress. Laws or THe Unrrep Srarss 479 it was intended that he should not, except as to these political matters, be the administrative head of the gov- ernment, with general power of directing and controlling the acts of subordinate Federal administrative agents. The acts of Congress establishing the Department of Foreign Affairs (State) and of War, did indeed recognize in the President a general power of control, but the first of these departments, it is to be observed, is concerned chiefly with political matters, and the second has to deal with the armed forces which by the Constitution are expressly placed under the control of the President as Commander-in-Chief. The act establishing the Treasury Department simply provided that the Secretary should perform those duties which he should be directed to per- form, and the language of the act, as well as the debates in Congress at the time of its enactment, show that it was intended that this direction should come from Congress. Furthermore, the Secretary is to make his annual reports not to the President, but to Congress.? In similar manner the Post-Office Department, when first permanently or- ganized in 1794, was not placed under the control of the President. The act gives in detail the duties of the Post- master-General and there is no suggestion that in the ex- ercise of these duties he is to be under other than con- gressional direction. The constitutional power of Congress thus to assume direction of the administrative departments of the Gov- ernment received the approval of the Supreme Court in Kendall v. United States.* Despite this obvious original intention to confine the duties of the President mainly to the political field, the President has in practice become the head of the Federal 2Cf. Goodnow, American Administrative Law, 78. 312 Pet. 524; 9 L. ed. 1181. © 480 PRINCIPLES OF THE CONSTITUTIONAL administrative system. This has been due to two causes. In the first. place the President’s- power to remove from office, a power which he may exercise at will, has easily enabled him to obtain administrative action even when he has not had legal power directly to command it. This was clearly shown in the episode of the removal of the bank deposits by Jackson. In the second place the practi- cal necessities of efficient government have compelled Congress to place in the President’s hands powers of ad- ministrative discretion, and have inclined the courts to uphold his orders whenever it has been possible to do so.‘ Even where the President has not the power to command he has the constitutional right to ‘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.” Acting under his constitutional obligation to take care that the laws be faithfully executed, the President may take such steps as are necessary and the laws permit, to compel the proper performance of their respective duties by Federal agents generally. This duty does not, how- ever, make the President responsible for every act com- mitted by a subordinate administrative official, nor, even where a duty is expressly laid upon him by the Constitu- tion or by statute, is it necessary, or humanly possible for him, in every case, to perform the duty in person.5 In general the courts have recognized that the Presi- dent acts through the chiefs of the Departments and that their acts are, in the view of the law, his acts. In proper cases, also, the acts of subordinate officials will be con- 4See Macy, Party Organization and Machinery in the United States; Ford, Rise and Growth of American Politics; Proceedings of the Amer- ican Political Science Association, I, 47, article by Prof. J. T. Young, “The Relation of the Executive to the Legislative Power.” 5 Williams v. United States, 1 How. 290; 11 L. ed. 135. Law or THE UNITED STATES 481 sidered as the acts of a departmental head, and thus of the President.® : Where, however, from the nature of the cage, or by ex- press constitutional or statutory declaration, it is evident that the personal, individual judgment of the President is required to be exercised, the duty may not be transferred by the President to anyone else.’ The courts have laid down the general doctrine that where a power of supervision and direction is given to an administrative superior, this power may be exercised either. by way of direct order, or by entertaining appeals from the acts of subordinates.’ Generally speaking, it has been held that no appeal lies to the President from the heads of the great Depart- ments at Washington. This is upon the ground that the acts of these administrative chiefs are held to be the acts of the President. It may be observed, however, that in the’several States of the Union the heads of the administra- tive departments have, commonly, no powers of direction, and, therefore, that there is no general right of appeal to them. Administrative decentralization in the States ‘In general it may be said that the administrative sys- tems of the States are much less centralized than that of the United States. As contrasted with the Federal system the governors have no general power of rerhoval of public agents from office, nor are they given supervisory 6 Wilcox v. Jackson, 13 Pet. 498; 10 L. ed. 264; Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691. 7Runkle v. United States, 122 U. S. 543; 7 Sup. Ct. Rep. 1141; 30 L. ed. 1167. 8 Knight v. United States Land Assn., 142 U. S. 161; 12 Sup. Ct. Rep. 258; 35 L. ed. 974; Orchard v. Alexander, 157 U. S. 372; 15 Sup. Ct. Rep. 635; 39 L. ed. 737. 31 482 PRINCIPLES OF THE CONSTITUTIONAL or directory power over the various administrative de- partments and boards of the State governments. Fur- thermore each of these several departments and boards is thus not only not integrated into a single system under a single head, but, not infrequently each of them individu- ally exhibits slight administrative integration. Increasing integration of Federal administration The Federal administrative system has exhibited a steady increase in integration. In the earlier years sub- ordinate administrative officials were accustomed to act in individual cases without feeling themselves bound to consult the judgment of those higher in office, nor did they hold themselves necessarily bound by directions from such sources. The principle followed by them was that they, as well as those in higher position, derived their authority by direct grant from the Congress and were subject to control and direction only by that body or by the courts. The necessities of efficient government have, however, compelled Congress to place express powers of control over their subordinates in the hands of administrative chiefs, and have persuaded the courts to recognize, whenever possible, the existence of these supervisory powers even where express statutory provision has not been made for their exercise. : The power of the President to control the institution and céntinuance of suits by the Attorney-General and his assistants may seem to some an improper one, but its existence has been recognized since the foundation of the government. Information to Congress The constitutional obligation that the President “shall from time to time give to the Congress information of the °Cf. Goodnow, American Administrative Law, 142. Law or tHe Unrrep Srares 483 State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient,” has, upon occasions, given rise to controversies between Congress and the President as to the right of the former to compel the furnishing to it of information as to specific matters. As a result of these contests it is practically established that the President may exercise a full dis- cretion as to what information he will furnish, and what he will withhold. The President’s control of foreign relations In the chapter dealing with the Treaty-making Power, the extent of the President’s control of the foreign relations of the United States is fully considered. The veto power of the President The exercise by the President of the veto power has given rise to very few constitutional questions, and, where these have arisen, they have been considered, incidentally, elsewhere in this treatise. The President’s pardoning power The Constitution provides that the President ‘shall have power to grant reprieves-and pardons for offenses against the United States, except in cases of impeach- ment.” This pardoning power, like the veto power, has given rise to very few constitutional questions. It will be seen that the power is limited to offenses against the United States. Cases of impeachment are expressly excepted from its reach and we shall later consider whether it may extend to the remission of penalties imposed for civil con- tempts of court. The effect of a pardon is to obliterate the offense, but it does not operate to impair the rights of others, as for 484 PRINCIPLES OF CONSTITUTIONAL LAW example, to restore the offender’s property which has been forfeited; ! nor does it restore one ipso facto to a forfeited office. Also, though the pardon takes away the guilt, it does not effect the fact of conviction of the crime, which ‘fact may be later shown as bearing upon the offender’s character. The power to pardon includes the right to remit part of the penalty as well as the whole, and in either case may be made conditional. The power may be exercised at any time after the offense has been committed, that is, either before, during, or after legal proceedings for punishment.!” General pardons, granting amnesty to classes of offenders, without naming them individually, may be granted. The power is a purely discretionary one in the Presi- dent, and therefore may not in any way be limited by Congress.18 Though Congress has thus no power to limit in any way the exercise of the pardoning power by the President, it may itself exercise that power to a certain extent, if exer- cised prior to conviction. Thus acts of amnesty have been held valid.14 The power to suspend sentence, it has been held, is by the common-law inherent in the judicial power, and its exercise, therefore, would not be in conflict with the execu- tive power to grant reprieves and pardons, ever were that power considered exclusive. 10 Osborn v. United States, 91 U. 8. 474; 23 L. ed. 388. 1 Hx parte Garland, 4 Wall. 333; 18 L. ed. 366. 2 Idem. 18 Idem. 44 Brown v. Walker, 161 U.S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819. As to remission of penalties by lower administrative officers, see Pollock v. Bridgeport Co., 114 U. 8. 411; 5 Sup. Ct. Rep. 881; 29 L. ed. 147, CHAPTER L THE APPOINTMENT AND REMOVAL OF OFFICERS Constitutional provisions The Constitution provides that the President ‘shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all 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 ap- pointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” It is also provided that the President ‘‘shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session,’”’ and that he “‘shall com- mission all officers of the United States.” “‘ Officer ”’ of the United States defined The definition of the term “officer” of the United States has been determined in United States v. Germaine ! and United States v. Mouat.? In the latter case the court say: ‘Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized to make such appointment, 199 U.S. 508; 25 L. ed. 482. 2124 U.S. 303; 8 Sup. Ct. Rep. 505; 31 L. ed. 463. 485 486 PRINCIPLES OF THE CONSTITUTIONAL he is not, strictly speaking, an officer of the United States.’”? The Constitution, it is seen, fixes absolutely the manner in which certain officers: namely, ambassadors, other pub- lic ministers and consuls, and judges of the Supreme Court, shall be nominated and appointed. The Constitution itself provides, in other clauses, for the selection of the President, the Vice-President, presidential electors, Sena- tors, members of the House of Representatives, and the officers of the two Houses of Congress. In addition to these officers whose selection is thus constitutionally determined, it would appear that all other officers not properly to be styled “inferior” are to be nominated by the President and appointed by and with the consent of the Senate. The appointment of all other officers of the United States, not mentioned within the foregoing classes, is subject to regulation by law of Congress, at least to the extent that that body may determine whether they shall be appointed by the President with the approval of the Senate, or by the President alone, or by the courts of law or the heads of the departments. Inferior officers The Constitution does not define the term ‘inferior officers,’ but it would appear that in this class are in- cluded all officers subordinate or inferior to those officers in whom other appointments may be vested. The point has never been squarely passed upon by the court since Congress has never attempted to regulate the appoint- ment to any but distinctly subordinate and inferior posi- tions. Should it attempt to determine by the law the appointment of heads of the great departments, or of the 3 That members of Congress are not “officers’”’ of the United States Government, see Burton v. United States, 202 U. S. 344; 26 Sup. Ct. Rep. 688; 50 L. ed. 1057. Law oF THE UNITED STaTEs 487 heads of bureaus and divisions and commissions, or even of important local officers, such as revenue officers or postmasters in the larger cities, the constitutionality of the law would undoubtedly be subjected to judicial ex- amination. Nominations With reference to the President’s power of appointment it is to be observed that nominating, appointing, and com- missioning to office are distinct acts. The nomination is exclusively in the hands of the Presi- dent. During the first years of the Government the sug- gestion was several times made that the Senate might propose names for nomination to the President; but, when- ever made, the suggestion was disapproved of as clearly not warranted by the Constitution. An appointment to office is not completed until the commission is signed. Therefore, even after sending a nomination to the Senate and even after the approval of that body has been given, the President may, having changed his mind, refuse his signature to a commission. His signature having once been appended, however, the appointment is complete; and the delivery of the commission by the head of the appropriate executive department may be commanded by mandamus, provided, of course, a Federal court has, by statute, been granted jurisdiction to issue the writ.+ gate: Creation of offices All offices are created either by the Constitution itself, or by Congress. The President, therefore, has not the power to create an office by directing some person to per- form certain functions. However, the President as well as other executive officials may, for their assistance in exe- cuting their official duties, employ persons to perform cer- 4 Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60. 488 PRINCIPLES OF THE CONSTITUTIONAL a tain specific duties. These persons have, however, legally speaking, no official powers, that is, they have no author- ity to issue orders to others, and for compensation for their services they must look either to contingent funds, the expenditure of which is placed in the discretion of the de- partment employing them, or to a subsequent appropri- ation by Congress. Congress has no appointing power, beyond the selection of its own officers. It may create an office but not desig- nate the one to fill it.® It has been held that Congress may authorize a particu- lar person or official to perform a specific act, though it may not create an ‘‘office ”’ for that person, in the sense that he is made an officer of the United States or entitled to any emolument or profit.® The Congress may not vest the appointment of officers elsewhere than as permitted by the Constitution, that is, elsewhere than in the President alone, the President and the Senate or the heads of departments.” Civil Service requirements “The question has been at times raised as to the constitu- tional power of Congress, while providing for the appoint- ment of officials by the President, or by the heads of the departments, to require that the appointees shall be se- lected from certain classes or persons, namely, those who have satisfied specified educational and other tests applied by the Civil Service Commission. Though the courts have never had occasion to pass upon this point, the constitu- 5 United States v. Ferreira, 13 How. 40; 14 L. ed. 42. But see Shoemaker v. United States, 147 U. S. 282; 13 Sup. Ct. Rep. 361; 37 L. ed. 170. 6 Kentucky v. Dennison, 24 How. 66; 16 L. ed. 717. 7 Ekiu v. United States, 142 U. 8. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146. Law oF THE UNITED STATES 489 tionality of the provision would seem to be fairly certain. The same sort of rules have long been established and fol- lowed with reference to appointments in the army and navy, and the decisions of the State courts support the practice as to the appointment of State officials. The power of removal Though the Supreme Court has never had occasion to pass squarely upon the point, executive practice, and, with the exception of the tenure of office acts of 1867 and 1869, Congressional enactment, have sanctioned the view that the power to remove from Federal office is constitu- tionally inherent in the President as to all offices to which he alone, or in conjunction with the Senate, appoints.® Congress may regulate the removal of inferior officers In United States v. Perkins ® it was held that when Con- gress by law vests the appointment of inferior officers in the heads of departments, it may at the same time limit and restrict the power of removal. Injunctions to prevent removal In White v. Berry ” it was held that, at least in the ab- sence of express statutory authorization, the courts will not grant a writ of injunction to prevent the removal of an officer from the classified service, even though such re- moval be in violation of the rules governing that service, as laid down by the Civil Service Act and as embodied in an executive order issued in pursuance thereof. In 8 Parsons v. United States, 167 U. 8. 324; 17 Sup. Ct. Rep. 880; 42 L. ed. 185; Ex parte Hennen, 13 Pet. 230; 10 L. ed. 188; Reagan v. United States, 182 U. 8. 419; 21 Sup. Ct. Rep. 842; 45 L. ed. 1162; Shurtleff v. United States, 189 U. S. 311; 23 Sup. Ct. Rep. 535; 47 L. ed. 828. 9116 U. S. 483; 6 Sup. Ct. Rep. 449; 29 L. ed. 700. 10171 U.S. 366; 18 Sup. Ct. Rep. 917; 43 L. ed. 199. 490 PRINCIPLES OF CONSTITUTIONAL Law general, it is held that in the general executive power of the President is implied a power of removal from office, and that under this general power he may issue rules for the government of the executive departments with refer- ence to removals, but that these rules are not imposed upon the President by law or by the Constitution, and that, therefore, if they be violated by the executive chiefs, with the President’s approval, the person so deprived of office has no legal right to be reinstated. Mandamus to reinstate in office In Keim v. United States 4 it was held that the action of the Secretary of the Interior in discharging a clerk in his department for incompetency was not subject to re- view in the courts either by mandamus to reinstate him or by compelling the payment to him of his salary. 11177 U.S. 290; 20 Sup. Ct. Rep. 574; 44 L. ed. 774. CHAPTER LI MILITARY LAW Military powers of the General Government Under the Articles of Confederation the General Govern- ment had not been granted adequate military authority. To it had been conceded by the States the power to “build and equip a navy.” But for its land forces it was obliged to rely wholly upon requisitions made upon the States, each State being pledged to supply a quota in proportion to the number of its white inhabitants. The regimental officers of these forces were appointed by the States, only the general officers being appointees of the General Government. From these quotas the national forces were supplied. Over the militia bodies of the several States, the General Government was given no control whatever. Under the present Constitution the Federal Government is given full power for the organization and maintenance of both the naval and land forces of its own, and a con- siderable authority over the State militia forces. The constitutional clauses in which these powers are granted are as follows: “The Congress shall have power to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; “To provide and maintain a'‘navy; “To make rules for the government and regulation of the land and naval forces; “To provide for calling forth the militia to execute the 491 492 PRINCIPLES OF THE CONSTITUTIONAL laws of the Union, suppress insurrections and repel in- vasions; “To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”’ The second article of amendment proyides that “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 in- fringed.”’ Other clauses of the Constitution give to the United States the power to exercise exclusive 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 needful build- ings;” ‘To declare war, grant letters of marque and re- prisal, and make rules concerning captures on land and water;’’ and “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” There is thus apparent the purpose to equip the Na- tional Government with adequate military authority to maintain itself against enemies both domestic and foreign. Upon the other hand, while the States are not deprived of military authority necessary to maintain domestic order or to protect themselves against invasion, the main- taining of armed forces for any other purpose, or the en- gaging in foreign war, or entering into alliances that may lead to war, is forbidden. By Clause 3 of § X of Art. I is declared: ‘No State shall, without the consent of Con- gress, lay any duty of tonnage, keep any 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, Law or THE UNITED STATES 493 unless actually invaded, or in such imminent danger as will not admit of delay.” Section IV of Art. IV declares that “The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature or the exec- utive (when the legislature cannot be convened) against domestic violence.”’ Military law—Reference to members of the army and navy The Constitution provides, as has been seen, that Con- gress shall have the power to provide and to make rules for the government and regulation of the land and naval forces. It has also provided that 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.” Under these grants of power Congress has established an army and navy, and by laws, passed from time to time, has provided the rules by which the respective powers and duties of the officers and men constituting this military establishment are to be determined and exercised. Col- lectively these rules are known as the Military Laws of the United States. Articles of war The chief of these military laws, so far as they relate directly to the duties and obligations of the individual soldier, are embodied in the so-called Articles of War, which constitute sections 1342 and 1343 of the Revised Statutes. With the details of this considerable body of statutory law we are not here concerned. With its general charac- ter, and especially with its relations to the civil portions of the law of the land, we are, however, interested. 494 PRINCIPLES OF THE CONSTITUTIONAL Obligations assumed by enlistment By enrollment in the military forces of the United States, the individual assumes new obligations, and is subjected to certain forms of control to which he was not before sub- ject. But he does not lose his right to the protection of the civil and criminal law, nor is he released from any of his obligations thereunder. Thus the enlisted soldier comes under an obligation to obey all the provisions of the military code, and for the violation of any one of them is subject to trial before a military court, a court-martial, and, upon conviction, to punishment ranging in severity from a small fine or short imprisonment to loss of life. In cases of urgency, which do not admit of delay, he may be summarily punished by order of his superiors, without even a court-martial being convened. Furthermore, if the act for which he is tried, convicted and punished by the military authorities, is also an offense against the gen- eral law of the State in which he is, he may be tried, con- victed and punished by the civil authorities of that State. Still further, as we shall see, if, in the justification of his act, he sets up the command of his military superior, it must appear that that order was one which that officer had authority to give. Thus the soldier may at times find himself in the dilemma that if he refuse to obey the order of his military superior, he will receive immediate military punishment; whereas, if he obey it, he will later be held civilly and criminally liable in the ordinary courts. This dilemma, though easily conceivable, is not, in fact, often a serious one, for the soldier will not be held civilly and criminally responsible except in cases where he has grounds for knowing that the act ordered to be committed was not a proper one and not within the official power of his su- perior to command. But, just as the individual soldier is still answerable in all respects to the non-military law of the State, so are his Law oF THE UNITED STATES 495 superiors when giving commands, as are also the members of courts-martial and of other military tribunals, when try- ing him, and the persons by whom the orders of such tribun- als are carried into effect; and if any act is by them ordered or committed which is not warranted by the law of the land, they may be held civilly and criminally responsible by the ordinary courts. Not even the order of the Presi- dent himself, the constitutional commander-in-chief of the army and navy, if that order be without authority of law, is sufficient to justify the performance of the act com- manded.! In time of war, as we shall see, the powers of the military commander, in the control of his own men, and of the citi- zens of the State to which he belongs, are much broader than they are in time of peace, but it is still true that they are subject to the limitations which the civil law imposes. With respect to the persons and property of the enemy, however, he is subject only to the limitations which the laws of war, as determined by international usage, supply, and for violation of these he is responsible only to the mili- tary tribunals. Courts-martial The tribunals in which those who violate the military laws are tried (except where urgency demands a more summary method) are termed courts-martial. These tribunals are presided over by military officers detailed for the purpose. No provision is made either for presentment or indictment by jury. The constitu- tionality of this is expressly provided for by the Fifth Amendment to the Constitution which declares that ‘‘no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a 1 Little v. Barreme, 2 Cr. 170; 2 L. ed. 243. 496 PRINCIPLES OF THE CONSTITUTIONAL grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.” There is no constitutional neces- sity for a trial jury in courts-martial. These tribunals are not parts of the judicial organization of the United States. According to English practice juries were never required in them, and it has never been questioned that they are not required by the Sixth Amendment. The decisions of courts-martial acting within their jurisdiction both as to the parties and the subject-matter are not subject to review by the civil courts. In assuming jurisdiction, however, they, in a sense, act at their peril, for their authority may be examined into by the civil courts, and if no jurisdiction is found, all acts committed by them are trespasses, punishment and dam- ages for which the civil courts will award and the execu- tive officers enforce. In Tarble’s case, decided in 1872, was examined the right of a State court to inquire by writ of habeas corpus whether an individual is a member of the United States army or navy, and, therefore, subject, as such, to Federal military law. The court denies this right, and asserts that this is a question exclusively for the Federal civil courts to determine.” Jurisdiction of courts-martial over offenses which are also violations of the local civil law In Coleman v. Tennessee * the court says: “We do not call in question the correctness of the general doctrine . . . that the same act may, in some instances, be an offense against two governments, and that the transgressor may be held liable to punishment by both when the punish- ment is of such a character that it can be twice inflicted, 213 Wall. 397; 20 L. ed. 597. 397 U.S. 509; 24 L. ed. 1118. Law oF THE UNITED Stares 497 or by either of the two governments if the punishment, from its nature, can be only once suffered. It may well be that the satisfaction that the transgressor makes for the violated law of the United States is no atonement for the violated law of Tennessee.” It is clear that there is here opportunity. for conflict between the military and civil powers. Congress, how- ever, has provided against these contingencies by giving the precedence in such cases to the civil courts. The power of Congress to vest in military tribunals exclusive jurisdiction over all offenses committed by military persons, including offenses which are also crimes against the civil law There is an obiter dictum upon this point in Coleman »v. Tennessee. The point directly decided in that case was that a certain § (80) of the Enrollment Act had not, as a matter of fact, made the jurisdiction of the military tri- bunals over certain offenses committed by soldiers in the army exclusive of the State courts. But after deciding this in the negative the court add: ‘‘We do not mean to intimate that it was not within the competence of Congress to confer exclusive jurisdiction upon military courts over offenses committed by persons in the military service of the United States.”’ Whether or not, however, Congress has the constitu- tional power, except in time of war, to render the juris- diction of military tribunals exclusive, as was suggested in Coleman v. Tennessee, would seem to be more doubt- ful; and when, if ever, that question is squarely presented to the Supreme Court, that tribunal may consider more carefully the possibility of the exaltation of the military over the civil authorities implicit in its dictum in the Cole- man case. In time of war, and especially upon the actual theatre of war, military courts have, without express legislative 32 498 PRINCIPLES OF THE CONSTITUTIONAL authorization, exciusive jurisdiction over the members of the military forces.* Powers of the Commander-in-Chief of the army and navy The constitutional Commander-in-Chief of the army and navy of the United States, and of the militia of the several States, when called into the service of the United States, is the President.» Through, or under, his orders, therefore, all military operations in times of peace, as well as of war, are conducted. He has within his control the disposition of troops, the direction of vessels of war and the planning and execution of campaigns. With Congress, however, lies the authority to lay down rules governing the organization and maintenance of the military forces, the determination of their number, the fixing of the man- ner in which they shall be armed and equipped, the estab- lishment of forts, hospitals, arsenals, etc., and of course, the voting of appropriations for all military purposes.® With respect to many matters of detail Congress has delegated to the President and to his executive subordin- ates the promulgation of administrative orders for the government of the land and naval forces which it might constitutionally itself provide, but which in fact it is either impossible or unwise for it to attempt to do. All orders of the President, or of the Secretary of War issued under his authority whether given by virtue of his con- stitutional office as commander-in-chief or of his statutory powers have the full force of law.’ But in all cases these orders must, if issued by virtue of authority congressionally given, pursue the terms of the granting statute; and if issued by virtue of his constitutional authority, be in 4 Coleman v. Tennessee, 97 U. 8. 509; 24 L. ed. 1118. 5 Const., Art. IT, § 2, cl. 1. 6 Hx parte Milligan, 4 Wall. 2; 18 L. ed. 281. 7 Smith v. Whitney, 116 U. S. 167; 6 Sup. Ct. Rep. 570; 29 L. ed. 601. Law or THE UNITED StaTEs 499 accordance with the generally accepted principles of in- ternational law and custom. Where this is not done, they will not justify the acts of subordinates acting under them. Declaration of war To Congress is expressly granted by the Constitution the power to declare war. By war is meant an armed conflict of a public nature, the parties to which are recog- nized as belligerents and as entitled to all the rights and subject to all the obligations which international law recog- nizes and imposes. But war may come into existence as a fact without a formal declaration, and in the Prize Cases *® the Supreme Court has held that this existence of war as a fact may be recognized by the President, in advance of Congressional declaration, and that he may thereupon take action, as, for example, the establishment of a blockade, which in time of peace he would not be constitutionally empowered to institute. That no war can exist between the United States and a foreign State, except by the declaration of Congress there has never been any doubt. This declaration may, how-, ever, be, as in the case of the Mexican War, that a State of war exists, or one declaring that war shall be begun. The terms of such a declaration fix the exact date of the beginning of the war so far as concerns matters of municipal law, and is binding on the courts of the State issuing it. From the viewpoint, however, of other nations, such a declaration is not conclusive, the beginning of the war being a question of fact to be interpreted in the light of the general principles of international law. The prosecution of war The constitutional power given to the United States 82 Black, 635; 17 L. ed. 459. 500 PRINCIPLES OF THE CONSTITUTIONAL to declare and wage war, whether foreign or civil, carries with it the authority to use all means calculated to weaken the enemy and bring the struggle to a successful conclu- sion. When dealing with the enemy all acts that are calculated to advance this end are legal, and Congress may by law expressly authorize measures which the courts must recognize as valid even though they provide penalties not supported by the general usage of nations in the con- duct of war. Thus during the Civil War in certain cases provision was made by congressional statute for the con- fiscation of certain enemy property or land, though such confiscation was not in accordance with the general usage of foreign States. Even in dealing with its own loyal subjects, the power to wage war enables the government to override in many particulars private rights which in time of peace are in- violable. The power to wage war carries with it the authority not only to bring it to a full conclusion, but, after the ces- sation of active military operations, to take measures to provide against its renewal.? The organization and disciplining of the militia As has been seen, the “organizing, arming and disciplin- ing of the militia,” and the prescribing of the discipline for training them are expressly placed within the control of Congress. The actual training, however, of the militia, according to the discipline thus to be supplied by Con- gress, is kept within the hands of the State authorities. And, furthermore, to them is given in general the ap- pointment of militia officers, and the entire government of the militia forces except when they have been called into the service of the General Government. , The present Federal law passed under the constitutional 9 Stewart v. Kahn, 11 Wall. 493; 20 L. ed. 176. Law oF THE UNITED STATES 501 authority 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,” is that of May 27, 1908, amending the act of January 21, 1903. The militia as an arm of the Federal Government The Constitution enumerates three purposes for aid in the effectuation of which the United States militia forces may be peremptorily called upon by the General Govern- ment. These are (1) to execute the laws of the Union, (2) to suppress insurrections, (3) to repel invasions. The suppression of insurrections has been held to in- clude the waging of civil war for the putting down of re- bellion,” and the repelling of invasions to include the pro- viding Against an attempted or threatened invasion." The President may, when calling upon the militia, apply to the governors of the States to give the necessary orders, or may issue his orders directly to the commanding officers of the militia.!2 When called into the Federal service, the militia comes under the same complete Federal con- trol as the regular national forces, and of course subject to the rules and articles of war. In Martin v. Mott * the doctrine was declared, which has not since been questioned, that the President is, by statute, sole judge as to whether an exigency has arisen calling for the use of the militia by the Federal authorities. The use of the militia and Federal troops to suppress do- mestic disorder From the foregoing it is seen that in all cases in which the integrity or existence of the National Government is 10 Texas v. White, 7 Wall. 700; 19 L. ed. 227. 1 Martin v. Mott, 12 Wh. 19; 6 L. ed. 537. 12 Houston v. Moore, 5 Wh. 1; 5 L. ed. 19. 1312 Wh. 19; 6 L. ed. 537. 502 PRINCIPLES OF THE CONSTITUTIONAL attacked or threatened, or a resistance offered to the exe- cution of its laws too great to be overcome by the ordi- nary agencies of government, the aid of the Federal troops or of the organized militia of the States may be at once called upon. In cases, however, of domestic violence within a State, directed against its laws and government, the Federal arm may extend help only when called upon by the State authorities. Military government In a previous chapter the special administrative law governing persons in the military service of the United States has been considered. We have now to speak of the law regulating the conduct of the national armed ‘forces in the possession and government of particular territories. As will later appear, military government may con- stitutionally exist either in time of peace or of war, and over domestic as well as over foreign territory. Military government of foreign territory Military government of foreign territory by the armed forces of the United States may exist either as the result of hostile occupation in time of war, or by friendly inter- national agreement, in time of peace. An instance of this last was the military occupation and administration of Cuba by the United States. The constitutional author- ity for thus employing our troops in foreign territory was derived not from the war powers of the President acting as the commander-in-chief of the army and navy, for there was no existing war, but from the general powers of the United States as a sovereign State in all that relates to international relations. The law of military occupation of foreign territory is that established by general international law. According 14 In re Debs, 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092. Law oF THE UNITED STATES 503 to this, the power of the military commander is constitu- tionally supreme. For no act that he or his subordinates may commit can he or they be held civilly liable in the civil courts of the United States or of the State whose territory is occupied. The only limits to the military authority are those which international law and usage, upon the ground of humanity and justice, impose, and breaches of these are cognizable only in the military courts.?® During military occupation of foreign territory, though there is no obligation by either constitutional or inter- national law, to establish courts or to permit the continued operation of local courts for the trial of ordinary civil and criminal cases according to local law, there is nothing to prevent this being done, and in fact, in modern times, this is usually done. Indeed, the principle is now well established that, until expressly declared otherwise, local law and the tribunals for its administration, continue in operation. But in all such cases, the courts, whether established or allowed to continue, exist essentially as military courts, and the law which they enforce has validity only by military order and permission. For the first effect of military occupation is to sever, for the time being, all the former political relations of the inhabitants of the terri- tory and to destroy the de jure character of the former organs of government. In practically all respects the laws governing the military occupation of foreign hostile territory apply to the military occupation of hostile domestic territory in time of a civil war which has assumed a public character. The fact that the sovereign State continues to claim sovereignty and to exercise powers as such does not pre- 15 New Orleans v. N. Y. Mail Steamship Co., 20 Wall. 387; 22 L. ed. 354. 504 PRINCIPLES OF THE CONSTITUTIONAL vent it from exercising at the same time all the rights of a belligerent. This was conclusively determined in the Prize Cases. In that case, as will be remembered, it was held that there lies within the discretion of the President as commander-in-chief of the army, a discretion not re- viewable by the courts, to determine when an insurrection or civil war has assumed such proportions as to warrant him in declaring it to be public war, and the insurrec- tionists belligerents. When this is done, the war becomes a territorial one, and all inhabitants of the revolting dis- trict become ipso facto public enemies. The right of confiscation and other belligerent rights thus exercisable by the military authorities within the United States during civil war must, in every case, be authorized by some competent officer or tribunal acting under the sanction of an act of Congress. That is to say, the individual soldier or officer is not allowed individually, and without obtaining the decree of a competent military or other tribunal, to seize private property as a prize of war.!? Military government of domestic territory in times of peace Military governments established on foreign territory in time of war do not necessarily come to an end with the declaration of peace and the annexation of the occupied territory to the United States; and the same is true after the conclusion of peace of military governments estab- lished in insurrectionary domestic territory. But these governments, though military in character, rest upon a different basis, and have somewhat different powers from those maintained during war. Military governments in time of peace, whether in 16 Mrs. Alexander’s Cotton, 2 Wall. 404; 17 L. ed. 915; Miller v. United States, 11 Wall. 268; 20 L. ed. 135. 1” Brown v. United States, 8 Cr. 110; 3 L. ed. 504. -Law or tHE Unirep States 505 territories newly annexed to the United States, or in dis- tricts lately in rebellion, no longer derive their author- ity from the President as commander-in-chief of the army and navy, but exist by the tacit or express command of Congress. Until Congress acts, the President may main- tain military governments by virtue of the fact that he is commander-in-chief of the army and navy, and obligated to ‘‘take care that the laws be faithfully executed wherever the Federal sovereignty extends.’”’ Such governments as he may establish or continue in existence in annexed terri- tory after the conclusion of war are, however, subject to the will of Congress either to change or abolish. Illustrative of this principle were the military govern- ments set up in the Southern States during and after the Civil War. While that war was in progress there was no question as to the power of the Executive to set up military governments in districts occupied by the Federal troops. With the conclusion of that war, however, Congress at once asserted its exclusive right to determine the manner in which the States lately in secession should be ruled until their civil status should be fully restored. The right of Congress to maintain military govern- ments in States of the Union after the restoration of peace was based partly on the ground of military necessity—that, though war had ceased, the results for which it had been waged were not yet fully secured—and partly on the ground that it lay with Congress to guarantee to the States loyal governments republican in form, and that to obtain these it was necessary for a time to furnish protection to the loyal portions of their populations.” Though military in form the governments established or maintained by the President in time of peace in terri- tories subject to the sovereignty of the United States may 18 Texas v. White, 7 Wall. 700; 19 L. ed. 227. 506 PRINCIPLES OF THE CONSTITUTIONAL: not be granted as complete a governing authority as that which they possess in time of war. The authority which may constitutionally be given to or exercised by them is determined by the purposes for which they exist. In time of war they have full power, legislative, executive, and judicial, to do anything the laws of war, as deter- mined by international usage, permit to be done that will strengthen themselves or weaken the enemy. War hav- ing ended, however, and the territory become domestic, the powers of the military commander become simply administrative in character, and his acts, so far as the necessities of the case permit, are limited by the general and constitutional laws of the country under which he acts. He, in fact, no longer enjoys authority by virtue of belligerent right, but as an agent of the sovereign of the country for the establishment and maintenance of civil rights therein. As Magoon expresses it, he ceases to occupy the place of the suspended or expelled sovereign- ty, and becomes an instrument of the new sovereignty. He becomes the representative of sovereignty instead of a substitute.” The powers of the military government in time of peace in domestic territory being simply those of a local adminis- trative agent of the United States, are subject to two general limitations. First, being of an administrative character, they do not include general legislative power, that is, the authority to establish laws of more than strictly local effects; and, second, such powers as are pos- sessed, are subject to the privileges and immunities created and guaranteed by the Constitution. How far these constitutional privileges apply to governments, whether military or civil, established in territories belonging to, but not “incorporated” into the United States, has been 19 Reports on the Law of Civil Government in Territory Subject to Military Occupation, p. 20. Law or THE UNITED STATES 507 considered in an earlier chapter. In all other domestic territory, whether in a Territory or a State lately in re- bellion, these constitutional limitations apply, and the agents have, therefore, and can be endowed by Congress and the executive only with such powers as may be ex- ercised at any time and in any place under the doctrines of “martial” as distinguished from ‘military law.” In short, their extent is measured by the necessity for their exercise.” 2 Raymond v. Thomas, 91 U. S. 712; 23 L. ed. 434; Dooley v. United States, 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. CHAPTER LII MARTIAL LAW Martial law defined In the most comprehensive sense of the term, Martial Law includes all law that has reference to, or is adminis- tered by, the military forces of the State. Thus it includes (1) Military Law Proper, that is, the body of administra- tive laws created by Congress for the government of the army and navy as an organized force; (2) the principles governing the conduct of military forces in time of war, and in the government of occupied territory; and (3) Martial Law in sensu strictiore, or that law which has ap- plication when the military arm does not supersede civil authority but is called upon to aid in the execution of its civil functions.1. This last form of Martial Law, which is to be considered in this chapter, is to be sharply distin- guished from those forms of Military Law which have been already considered.” Martial law a form of the police power That which brings martial law closely into relation with military law is the fact that it is administered by the armed forces of the State, and that it partakes, in a measure at least, of its absolute character. That is to say, under its control, certain of the guarantees to the individual against personal injury on the part of those in authority furnished by the civil law, are in abeyance. But in all other re- 1 Ex parle Milligan, 4 Wall. 2; 18 L. ed. 281. 2 Chapter LI. 508 Law or THE UnitTep States 509 spects, as we shall see, martial law belongs in the field of civil rather than that of the military law. Indeed, martial law is essentially a branch of the police laws of the State, and its exercise is governed by the same princi- ples as those which control the exercise of the so-called Police Powers of the State.’ Martial power limited However, as we have earlier seen, though there are necessarily many circumstances under which the political power, in behalf of.public interests, may interfere with the freedom of action of the individual and the use by him of his own property, in no one of these instances may this interference be an arbitrary one. That is to say, in each case the propriety of the interference may be questioned by the individual, and, when so questioned, the official whose act constitutes the interference must be able to justify his act by referring to a valid law and to some consideration of public necessity or convenience. If a person is drafted into military service, there must have been enacted a valid drafting law, including within its application the class of persons to which the individual drafted belongs. If a contract formally valid is refused enforcement, it must be shown to be opposed to public policy. If property is taken under eminent domain it must be for a public use, and compensation must be given. If the rates charged by public service corporations are regulated by law, the regulation must be a reasonable one and not one, in its effect, confiscatory of private property. Finally, to constitute a valid exercise of the so-called police power of the State there must be shown some public advantage to be gained by thus interfering with the per- sonal liberty and property rights of the individual. Now, in exactly the same way in which the civil author- 3 See ante, p. 341. 510 PRINCIPLES OF THE CONSTITUTIONAL itles may by law or through executive action control the activities of the individual and the use of his property in the interest of the public good, the military arm of a government may be employed to preserve the public peace and to secure the execution of the laws. In European countries, living under written constitu- tions, provision is quite generally made for the declaration in times of danger of what is called a “state of siege,” the effect of which is immediately to suspend the operation of all the ordinary constitutional limitations upon execu- tive power. No similar status is known to American law. The use of the military arm of our States or of the Federal Government in time of peace and upon domestic soil to maintain order and secure the execution of law in no wise operates to suspend civil law or to negate the individual rights of liberty and property, any more than the ordinary exercise of the police powers of the State has this effect. The use of the military forces of a State for the mainte- nance of order and law is, indeed, not dissimilar in purpose and character to the employment by a sheriff of a posse comitatus to assist him in making an arrest, preventing an escape or serving a writ. In both cases those who exercise authority are obliged to justify whatever acts they may have committed by showing their necessity, or, at least, producing evidence to show that they had reason- able grounds for believing them to be necessary. Martial law does not abrogate civil law and civil guarantees There is, then, strictly speaking, no such thing in Ameri- can law as a declaration of martial law whereby military is substituted for civil law. So-called declarations of martial law are, indeed, often made, but the legal effect of these goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and Law or THE UniTep STates 511 that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.* During the time that the military forces are employed for the enforcement of law, that is to say, when so-called martial law is in force, no new powers are given to the executive, no extension of arbitrary authority is recognized, no civil rights of the individual are suspended. The re- lations of the citizen to his State are unchanged. What- ever interference there may be with his personal freedom or property rights must be justified, as in the case of the police power, by necessity, actual or reasonably pre- sumed. During times of disorder, such as lead to a call upon the military forces for assistance, necessity natu- rally demands the commission of acts which in more tran- quil times are not demanded, and thus in fact, those in authority may control the individual and his property in ways which they could not legally do at other times, but the principle still holds good that necessity, and necessity alone, will justify an infringement upon private rights of person and property. Martial law and military government distinguished It is thus seen that martial rule, that is, the use of the military arm for the enforcement of civil law, is something quite different from the establishment of military govern- ment over territory conquered in public war. Mr. Ma- goon draws this distinction admirably in the following words: “A military government,” he says, “takes the place of a suspended or destroyed sovereignty, while martial law, or, more properly, martial rule, takes the place of certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which 4 Ela v. Smith, 5 Gray (Mass.), 121. 512 PRINCIPLES OF THE CONSTITUTIONAL remains subject to the .sovereignty. The occasion of military government is the expulsion of the sovereignty theretofore existing, which is usually accomplished by a successful military invasion. The occasion of martial rule is simply public exigency which may arise in time of war or peace. A military government, since it takes the place of a deposed sovereignty, of necessity continues until a permanent sovereignty is again established in the territory. Martial rule ceases when the district is suffi- ciently tranquil to permit the ordinary agencies of govern- ment to cope with existing conditions.” ® It is to be observed before leaving this point that, so far as regards the acts that may be done by military and civil authorities in effectuating their purposes, the neces- sity for them being present, there is no difference between the commander’s powers in a domestic insurrection and inawar. As the Supreme Court of Pennsylvania in a recent case has said: ‘‘in truth he has whatever powers may be needed for the accomplishment of the end, but his use of them is followed by different consequences. In war he is answerable only to his military superiors, but for acts done in domestic territory, even in the sup- pression of public disorder, he is accountable, after the exigency has passed, to the laws of the land, both by prose- ‘cution in the criminal courts and by civil action at the instance of the parties aggrieved.’ ® Martial law in time of war Thus far the discussion has related to martial rule as exercisable in time of peace, that is, in times when, to be sure, civil disorder prevails, but when war—public war— ® Reports on the Law of Civil Government in Territories Subject to Military Occupation. * Wadsworth v. Shortall, 206 Pa. St. 165. See, also, Moyer v. Peabody, 212 U, 8, 78; 29 Sup. Ct. Rep. 235; 53 L. ed. 410. Law oF THE UNITED STATES 513 does not exist. We have now to speak of martial rule when this latter condition is present. It has already been learned that in war the enemy, be he a foreign one, or a rebel to whom the status of belliger- ent has been given, has no legal rights which those opposed to him must respect. When a civil contest becomes a public war, all persons living within limits declared to be hostile become ipso facto enemies, and subject to treatment as such.’ Different conditions prevail, however, in loyal districts. In these the existence of war does not operate to destroy or suspend the civil rights of the inhabitants. Upon the actual scene of war, there is no question that, for the time being, the military authorities are su- preme, and that these may do whatever may be necessary in order that the military operations which are being pur- sued may succeed. Here martial law becomes indis- tinguishable from military government. “When martial law is invoked in face of invasion or rebellion that rises to proportions of belligerency, it is war power pure and simple.” It is in this sense that Field defines martial law as “simply military authority exercised in accordance with the laws and usages of war,”’ and the Supreme Court defines it as ‘“‘the law of necessity in the actual presence of war.” § The necessities being great and extraordinary, the executive and administrative, that is to say, the military, action that will be justified is correspondingly extensive. But, the populace being loyal, and the territory domestic, private rights of persons and property still persist, though subject, as in all other cases, to the exercise of the police powers of the State. Those who exercise these powers, though military in character, still remain liable for any 7 Ford v. Surget, 97 U. 8. 594; 24 L. ed. 1018. 8 United States v, Diekelman, 92 U.S. 520; 23 L. ed. 742. 33 514 PRINCIPLES OF THE CONSTITUTIONAL abuse of their authority. The civil courts are not necessar- ily closed, nor are any of the private actions of individuals subject to restraint except in so far as the efficiency of public service may require. Private property may be seized and appropriated to a public use without the consent of the owner, when the public necessity demands. This taking of private property is, however, the courts have declared, not an exercise of military power which gives to the owner no claim for com- pensation, but a taking for the public use which, under the provision of the Fifth Amendment, demands that compensation be made. The manner of taking, however, may be that of the police power in that the urgency may not permit the ordinary proceedings for valuation and condemnation.’ Exercise of military authority outside the immediate theatre of war—Ex parte Milligan _ Under the stress of military exigency, upon the actual theatre of war such civil guarantees as the writ of habeas corpus, immunity from search and seizure, ete., may, of course, be suspended. As to this there is no question. There is, however, a serious question whether, when war exists, these rights may, by legislative act or executive proclamation, be suspended in regions more or less re- mote from active hostilities. This question was raised and carefully considered in the famous Milligan case” in which the Supreme Court was called upon to pass upon the authority of a military commission, during the Civil War, to try and sentence upon the charge of conspiracy against the United States Government one Milligan, who. was not a resident of one of the rebellious States, nor ° United States v. Russell, 13 Wall. 623; 20 L. ed. 474. See, also, Mitchell v. Harmony, 13 Wall. 115; 14 L. ed. 75. 0 Ex parte Milligan, 4 Wall. 2; 18 L. ed. 281. Law oF THE UNITED STATES 515 a prisoner of war, nor ever in the military or naval service ‘of the United States, but was at the time of his arrest a citizen of the State of Indiana in which State no hostile military operations were then being conducted. The military commission had been created pursuant to an act of Congress of March 3, 1863, authorizing the sus- pension of the writ of habeas corpus throughout the United States by the President, but providing that lists of persons, not prisoners of war, held under military authority should be furnished within a given time to the judges of the Federal circuit and district courts, and that one so imprisoned whose name was not so reported might appeal for release to the civil courts. Five of the justices of the Supreme Court held that Congress was without the constitutional authority to suspend or authorize the suspension of the writ of habeas corpus, and to provide military commissions in States outside the sphere of active military operations and with their civil courts open and ready for the transaction of judicial business. The remaining four justices held that Congress had not in fact made legislative provision for the military tribunal in question, but asserted that it possessed the constitutional authority so to do, should it see fit. There would seem to be but little question that the doctrine stated by the majority in the Milligan case is essentially a sound one, namely, that actual necessity and not constructive necessity as determined by legisla- tive declaration, alone will furnish justification for sub- stituting martial for civil law. It would seem, however, that in one respect the opinion is open to criticism. The statement is too absolutely made that “martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.” 516 PRINCIPLES OF THE CONSTITUTIONAL It is correct to say that ‘the necessity must be actual and present,”’ but it is not correct to say that this necessity cannot be present except when the courts are closed and deposed from civil administration, for, as the minority justices correctly point out, there may be urgent necessity for martial rule even when the courts are open. The better doctrine, then, is not for the court to attempt to determine in advance with respect to any one element, what does, and what does not create a necessity for martial law, but, as in all other cases of the exercise of official authority, to test the legality of an act by its special cir- cumstances. Certainly the fact that the courts are open and undisturbed will in all cases furnish a powerful pre- sumption that there is no necessity for a resort to martial law, but it should not furnish an irrebuttable presumption. Habeas corpus The writ of habeas corpus ad subjiciendum is one of a number of so-called extraordinary judicial writs, which like those of certiorari, quo warranto, mandamus and injunction are issued by the courts either in order that their commands may be executed, or that a matter may be brought before them for judicial determination. This especial writ, often termed ‘‘the writ of liberty,’ had be- come one of the established rights of the citizen before the separation of the American colonies from the mother country, and has ever since been regarded by American citizens as the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever the detention may be exercised or ordered. Issued as of right by any court of competent jurisdiction, it orders those to whom it is directed to show good legal justification for holding in custody the person in whose favor it is given. Where such sufficient cause is not shown, an order of release follows as of course. Law or THE Unirep States 517 Suspension of the writ The United States Constitution declares that ‘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.” The implication from this language is that the writ shall not be suspended, ex- cept in the cases mentioned. The prohibition is directed only to the Federal Government. Aside, therefore, from the specific provisions of their several constitutions, the States are free to suspend the writ, but in case they do so and without sufficient excuse, the person detained may of course, obtain the writ from a Federal court under the claim that he is deprived of liberty without due process of law or in derogation of some other Federal right, privilege or immunity. The suspension of the privilege of the writ, it is to be observed, does not deprive the courts of the right to issue it. It furnishes merely a legal ground for a refusal to obey it. Furthermore, the suspension of the writ goes no further than to justify this refusal. It thus enables executive agents to make arrests at will, and, while the suspension is in force, renders it impossible for those apprehended to obtain a judicial judgment upon the legality of such ar- rests and detention. But it does not operate actually to authorize such arrests, or to deprive the individual of any of the other rights which the law secures him, and, therefore, the persons responsible for the arrests and de- tentions may still be held civilly and criminally responsible for any illegal acts that they may have committed. In time of war, or of domestic disorder or insurrection, when so-called martial law has been declared, the privilege of the writ of habeas corpus, together with all the other civil 1 Bx parte Vallandigham, 1 Wall. 243; 17 L. ed. 589. 518 PRINCIPLES OF THE CONSTITUTIONAL guarantees may, for the time being, be suspended; but, as we have already learned in the preceding chapter, actual public necessity, and this alone, will furnish legal justifi- cation for this. The existence of civil war operates as regards the enemy ipso facto, that is, without formal declaration, as a sus- pension of the privilege of the writ of habeas corpus, to- gether with, as said, the suspension of the other guarantees to the individual against arbitrary executive action. In the preceding chapter the principle was sustained that the establishment of martial law may properly take place not only upon the theatre of active hostilities, but else- where when the actual necessities of the case demand it. The suspension of the privilege of the writ of habeas corpus falls short of the establishment of martial law, but to justify it there is required the same public necessity as that required for the enforcement of martial law. The same reasoning, therefore, that was employed with refer- ence to this latter subject is applicable to the question of the suspension of the writ of habeas corpus, and need not here be repeated. Power of the President to suspend the writ In Ex parte Bollman ' the Supreme Court. in its opinion took for granted that the power of suspension lay with Congress, and the same view was held by Story in his Commentaries. The correctness of this view does not appear to have been questioned until the early period of the Civil War, when President Lincoln, upon the advice of his Attorney- General, declared that the power lay with him, and by various proclamations authorized the suspension of the 124 Cr. 75; 2 L. ed. 554. 18 § 1336. Law or THE Unrrep STATES 519 writ in places both within and without the area of active hostilities. The rightfulness of this assumption of power by the President was severely criticised notwithstanding the ar- guments of the Attorney-General and of the eminent jurist Horace Binney. This criticism was judicially ex- pressed by Chief Justice Taney in a protest which he filed in the case of Ex parte Merryman.* In that case obedience to a writ which he had issued being refused by a military officer of the United States, acting under the authority of the President, Taney recog- nized his inability to compel its execution and filed a protesting opinion in the course of which, after calling attention to the fact that the constitutional provision providing for the suspension of the writ is found in the article which is devoted to the legislative depaytment and is, therefore, to be presumed to relate to the powers of Congress, he said: ‘“‘The only power, therefore, which the President possesses, where the ‘life, liberty or property’ of a citizen are concerned, is the power and duty prescribed in the third section of the second article, which requires ‘that he shall take care that the laws are faithfully exe- cuted.’ He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and ad- judged by the co-ordinate branch of the government to which that duty is assigned by the Constitution. It is thus made his duty to come to the aid of the judicial authority if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm. But in exercising this power he acts in subordination to judicial authority, assisting it to execute the process and enforce its judgments.” a4 Taney's Reports, 246. 520 PRINCIPLES OF CONSTITUTIONAL Law “With such provision in the Constitution, expressed in language too clear to be misunderstood by any one,” said Taney, ‘‘I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus or arrest a citizen except in aid of the judicial power.” That Taney’s reasoning is correct there would now seem to be little question. The point has never since been squarely passed upon by the courts, but in 1863 Congress considered it necessary specifically to authorize the President to suspend the writ, and commentators now agree that the power to suspend or authorize the suspension lies entirely in Congress.! 15 Cf. Winthrop, Military Law, and Tucker, Constitution of United States, II, pp. 642-652. CHAPTER LIII THE SEPARATION OF POWERS The separation of powers A fundamental principle of American constitutional jurisprudence, accepted alike in the public law of the Federal Government and of the States, is that, so far as the requirements of efficient administration will permit, the exercise of the executive, legislative and judicial powers is to be vested in separate and independent organs of government. The value of this principle or practice in protecting the governed from arbitrary and oppressive acts on the part of those in political authority, has never been questioned since the time of autocratic royal rule in England. That the doctrine should govern the new con- stitutional system established in 1789 was not doubted. Separation of powers in the States not compelled by the Federal Constitution It is to be observed that this general acceptance by the States of the principle of the separation of powers is not one forced upon them by Federal law,! except in so far as the prohibition of the Fourteenth Amendment with reference to the depriving any person of life, liberty or property without due process of law is operative, or possibly, in extreme cases, where it might be held that the government is not republican in form. Nor, as we shall later see, do the distributing clauses in the State con- stitutions operate to prevent the consolidation of judicial, Calder v. Bull, 3 Dall. 386; 1 L. ed. 648. 521 522 PRINCIPLES OF THE CONSTITUTIONAL executive and legislative powers in local governmental organs.” Powers separated in the Federal Government The Federal Constitution does not contain a specific distributing clause, but its equivalent is found in the clauses which provide that ‘all legislative power herein granted shall be vested in a Congress of the United States,” that ‘the executive power shall be vested in a President of the United States of America,” and 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.” These provisions, interpreted in the light of the accepted doctrines that each and all of the Federal organs of govern- ment possess only those powers granted them by the Con- stitution, and that the powers not granted may not by them be delegated to other and different organs, have, from the beginning, been held to secure what the specific distributing clauses in the State constitutions are de- signed to provide.® To preserve the separation of powers and to render government efficient for the protection of civil liberty, the framers of our Federal and State constitutions saw that it was necessary not simply to create separate de- positaries for the three powers, but to provide efficient means for preventing, if possible, the control by one department of the other departments. With this end in the view, the executive, legislative and judicial estab- lishments are made as independent as possible of one another. Thus the legislatures are made the sole judges as to the constitutional qualifications of those claiming 2 Goodnow, American Administrative Law, p. 35. 3 Kilbourn v. Thompson, 103 U. 8. 168; 26 L. ed. 377. Law oF THE UNITED STATES 523 membership, they have the power of disciplining and expelling members, their members are in general not liable to arrest except for felony, treason, or breach of the peace, and they may not be held responsible in actions of slander or libel for words spoken or printed by them as members. The independence of the courts is in general secured by tenures of office, and official compensation free from legislative control, and, furthermore, they have the great power of declining to recognize as valid all laws or executive acts which they hold to be unconstitutional or otherwise illegal. The executive has, of course, within his own hands, the material force of the State, and within the limits of the discretion placed by law in his hands, may not be held legally responsible in the courts for his acts. Separation of powers not complete While, as has been said, the principle of the separation of the powers has generally been accepted as binding in our systems of constitutional jurisprudence—State and national—the practical necessities of efficient government have prevented its complete application. It has from the beginning been necessary to vest in each of the three departments of government certain powers, which, in their essential nature, would not belong to it. Thus, to mention only a few of the more evident examples, the courts have been given the essentially legislative power to establish rules of practice and procedure, and the executive power to appoint certain officials—sheriffs, criers, bail- iffs, clerks, etc., the executive has been granted the legis- lative veto power, and the judicial right of pardoning; the legislature has been given the judicial powers of im- peachment, and of judging of the qualifications of its own members, and the Senate, the essentially executive power of participating in the appointment of civil officials. 524 PRINCIPLES OF THE CONSTITUTIONAL Not only this, but as we shall later see, the principle of the separation of powers does not prevent the legisla- tive delegation to executive officers of both a considerable ordinance-making power, and an authority to pass, with or without an appeal to the courts, upon questions of fact. Essentially, the promulgation of administrative ordinances or orders is legislative in character, and the determination of facts after a hearing is judicial. In both cases, however, these functions are performed in pursuance of statutory authority, and as incidental to the execution of law. In like manner, the legislature is conceded to have, as incidental to its law-making power, the essentially judicial function of punishing for contempt or disobedience to its orders. ' The general principle stated Thus it is not a correct statement of the principle of the separation of powers to say that it prohibits abso- lutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may con- stitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not-so consti- tutionally granted, which, from their essential nature, do not fall within its division of governmental functions, unless such powers are properly incidental to the per- formance by it of its own appropriate functions. From the rule, as thus stated, it appears that in very. many cases, the propriety of the exercise of a power by a given department does not depend upon whether, in its essential nature, the power is executive, legislative or judicial, but whether it has been specifically vested by the Constitution in that department, or whether it is properly incidental to the performance of the appropriate Law oF THE UNITED STATES 525 functions of the department into whose hands its exercise has been given. Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the legislature to determine where its exercise shall be vested. Declaratory and retroactive legislation Declaratory statutes, that is, those legislative pro- nouncements as to how certain laws, previously estab- lished, are to be interpreted in courts and by executive agents, are valid in so far as they are designed to govern future action.* Retroactive legislation which does not impair vested rights, or violate express constitutional prohibitions, is valid, and, therefore, particular legal remedies, and, to a certain extent, rules of evidence, may be changed and, as changed, made applicable to past transactions, for it is held that, so long as the general requirements of due process of law are satisfied, no person has a vested right in any particular legal remedy or mode of judicial pro- cedure. Again, in certain cases, the legislature is competent to validate proceedings otherwise invalid because of formal irregularities. But substantive rights may not thus be interfered with. Legislative control of judicial procedure and powers The power of the courts to refuse to apply legislative acts inconsistent with constitutional provisions has al- ready been considered. This is as far as the courts will go in the control of the legislative department. They do not possess and have never been claimed to possess the power to pass upon the credentials of one claiming 4 Cf. Cooley, Constitutional Limitations, 7th ed., p. 187. 526 PRINCIPLES OF THE CONSTITUTIONAL membership in a legislative body. They do not attempt to prescribe the rules by which such bodies are governed in the conduct of their work, and, to only a very limited extent, will they question the correctness of the legisla- tive records that are kept. Finally, they never attempt to command or prohibit the performance of a legislative act. Individually, however, the members of a legislature are, of course, subject to judicial process, except so far as they have been granted express immunity by the Con- stitution. Upon the other hand, as we shall see, the courts have not hesitated to protect their own independence from legislative control, not simply by refusing to give effect to retroactive declaratory statutes, or to acts attempt- ing the revision or reversal of judicial determinations, but by refusing themselves to entertain jurisdiction in cases in which they have not been given the power to enforce their decrees by their own writs of execution. Thus they have refused to act where their decisions have been subject to legislative or executive revisions. Finally, even where the extent of their jurisdiction, both as to the parties litigant and subject-matter, has been subject to legislative control, the courts have not permitted them- selves to be deprived of the power necessary for maintain- ing the dignity, the orderly course of their procedure, and the effectiveness of their writs. In order that a court may perform its judicial functions with dignity and effectiveness, it is necessary that it should possess certain powers. Among these are the right to issue certain writs, called extraordinary writs, such as mandamus, injunction, certiorari, prohibition, etc., and, especially, to punish for contempt and disobedience to its orders. The possession of these powers the courts have jealously guarded, and in accordance with the con- stitutional doctrine of the separation and independence Law oF THE UnitTep StTaTEs 527 of the three departments of government, have held, and undoubtedly will continue to hold, invalid any attempt on the part of the legislature to deprive them by statute of any power the exercise of which they deem essential to the proper performance of their judicial functions. The extent of their jurisdiction, they argue, may be more or less within legislative control, but the possession of powers for the efficient exercise of that jurisdiction, whether statutory or constitutional, which they do possess, they cannot be deprived of. Jurisdiction and judicial power distinguished It has been already pointed out that the jurisdiction of the inferior Federal courts and the appellate jurisdic- tion of the Supreme Court are wholly within the control of Congress, depending as they do upon statutory grant. It has, however, been argued that while the extent of this jurisdiction is thus within the control of the legisla- ture, that body may not control the manner in which the jurisdiction which is granted shall be exercised, at least to the extent of denying to the courts the authority to issue writs and take other judicial action necessary for the proper and effective execution of their functions. In other words, the argument is, that while jurisdiction is obtained by congressional grant, judicial power, when once a court is established and given a jurisdiction, at once attaches by the direct force of the Constitution. Contempts Within recent years the question of the constitutional extent of the legislative control over the powers of the courts has been discussed with special reference to the regulation of the courts’ power to punish for contempt, and to issue writs of injunction. That, generally speaking, the power to punish for con- 528 PRINCIPLES OF THE CONSTITUTIONAL tempt is inherent in courts is beyond question. It may, however, be argued that where the existence and juris- diction of a court are wholly within the control of the legislative body, as is the case with the inferior Federal courts, authority exists in the legislature to determine the circumstances under which contempt may be held to have been committed, the form of trial therefor and the punishment which, upon conviction, may be inflicted. The power has, indeed, in a measure, been exercised by Congress which by law of March 2, 1831, limited the con- tempt powers of the Federal courts to three classes of cases: (1) Those where there has been misbehavior in the presence of the court, or so near thereto as to interfere with the orderly performance of its duties; (2) where there has been misbehavior by an officer of the court with refer- ence to official transactions; and (8) where there has been discbedience or resistance to any lawful writ, process, order, rule, decree, or command of the court. The constitutionality of this law does not seem to have been questioned, but it may well be questioned whether it could constitutionally be held to control the Supreme Court which derives its existence and much of its juris- diction directly from the Constitution. Pardoning powers of the President and contempts Arguing from the general principle of the independence of the three departments of government it would seem that the question as to the power of the President to par- don persons adjudged by one of the Federal courts to be in contempt should be answered in the negative, for clearly to give this power to the executive is to place in his hands a weapon with which he may completely nullify the court’s power to enforce its decrees. To this it may be replied, however, that, having the direction of the armed forces of the nation he has the power in any event, Law or THE UNITED STATES 529 and the Constitution vesting in him the general power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” it would seem to follow that the power to remit the punishment of those convicted of contempt by the Federal courts is given. With reference to this, however, there is a distinction to be made between criminal and so-called civil contempts.® In civil contempts the defendant is fined or imprisoned in order to obtain for a suitor his private rights. Punish- ment for criminal contempts, upon the other hand, is imposed to uphold and vindicate the dignity of the court. Though the Supreme Court has never passed directly upon this point, there would seem to be no doubt that the pardoning power of the President extends at least to persons punished for criminal contempts.® Power of Congress to punish for contempt In 1821 the Supreme Court by a decision rendered in the case of Anderson v. Dunn’ recognized the existence in Congress of a general power to punish for contempt per- sons disobeying its orders, especially those with reference to the giving of testimony and the production of papers before its committees and commissions of inquiry. In the case of Kilbourn v. Thompson,’ however, decided in 1881, the court very much narrowed this power, holding that Congress had the power to compel information only with reference to matters over which it had legislative power, and that, therefore, it might not punish for con- tempt a refusal to testify or produce papers bearing upon other subjects. In this respect, being a legislature of 5 Gompers v. Buck Stove & Range Co., 221 U.S. 418; 31 Sup. Ct. Rep. 492; 55 L. ed. 797. 6 See In re Nevitt, 117 Fed. Rep. 448; 3 Op. Atty. Gen. 662; 4 Op. Atty. Gen. 458; Columbia Law Review, III, 45. 76 Wh. 204; 5 L. ed. 242. 8103 U.S. 168; 26 L. ed. 377. 34 530 PRINCIPLES OF THE CONSTITUTIONAL limited powers, Congress could not measure its powers by those exercised by the English Parliament. That Congress has the power to punish its own members for disorderly behavior, that it may punish by imprison- ment a refusal to obey a rule made by it for the preserva- tion of its own order, and inflict penalties in order to compel the attendance of absent members, has not been questioned. In the case of Re Chapman,’ however, de- cided in 1897, was raised the question whether it had the authority to punish a refusal to testify before a committee which was inquiring, not with regard to proposed legisla- tion, but with reference to the truth of charges which had been made reflecting upon the integrity of certain of its members. This power the court upheld. The court, furthermore, held in this case that having the power, Congress might, instead of or in addition to itself punishing for contempt, provide by law that a con- tumacious witness be indicted and punished in the courts for a misdemeanor. With reference to the authority of the State legislatures to punish for contempt it may be observed that their powers are much broader than those of Congress. Pos- sessing all powers not expressly or impliedly refused them, they have a general inquisitorial power and a correspond- ing general authority to punish a refusal to testify or to produce papers. The performance of administrative acts by the courts Courts have no hesitation in performing ministerial acts, if such acts are incidental to the exercise of their proper judicial functions. But they will not perform administrative acts not so connected.” 9166 U.S. 661; 17 Sup. Ct. Rep. 677; 41 L. ed. 1154. 10 Hayburn’s Case, 2 Dall. 409; 1 L. ed. 436; United States »v. Ferreira, 13 How. 40; 14 L, ed. 42; Gordon v. United States, 2 Wall. 561; 17 L. ed. 921, © Law or THE Unitep States . 681 Judicial review of administrative determinations Though, as the foregoing cases show, the courts will not consent to exercise jurisdiction where their decisions are reviewable by administrative officials, they have not refused themselves to review decisions rendered in the first instance by executive organs. In all cases, they will, of course, examine, by certiorari or otherwise, whether a given administrative act has been legal in character, that is, whether the agent performing it has had the necessary official power, or whether ‘“‘due process of law” has been provided. In addition, they have been willing, where specific legislative authority has been granted them, to review administrative determinations of fact, when such determinations have required the exercise of functions essentially judicial in character.! Judicial powers of administrative agents From what has gone before it will have been seen that though the courts will not perform administrative acts, there is no constitutional objection to vesting the per- formance of acts essentially judicial in character in the hands of the executive or administrative agents, provided the performance of these functions is properly incidental to the execution by the department in question of functions peculiarly its own. Furthermore, as we shall later see, there is, subject to the same qualification, no objection to rendering the administrative determinations conclusive, that is, without an appeal to the courts, provided in gen- eral the requirements of due process of law as regards the right of the person affected to a hearing, to produce evi- dence, etc., have been met. 1 United States v. Butterworth, 112 U.S. 50; 5 Sup. Ct. Rep. 25; 28 L. ed. 656; United States v. Duell, 172 U. S. 576; 19 Sup. Ct. Rep. 286; 43 L. ed. 559; Interstate Commerce Commission v. Brimson, 154 U. S. 447; 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047. CHAPTER LIV CONCLUSIVENESS OF ADMINISTRATIVE DETERMINATIONS Due process of law does not demand determination of rights in courts of law Due process of law does not require that personal and property rights shall in all cases be finally determined in courts of law.! As has been more fully shown in the chap- ter entitled ‘Due Process of Law,” the prohibition im- posed by the Constitution upon both the national and State governments that life, liberty or property shall not be taken without ‘‘due process of law,’’ means not so much that a specific mode of procedure shall be followed, as that in that procedure certain fundamental principles looking to the protection of the individual against op- pression and injustice shall be observed. In accordance with this interpretation it has been held that the deter- mination of facts upon which a given right of life, liberty or property may depend, need not necessarily be placed in the hands of the courts, but may be conclusively deter- mined by executive agents. In Murray’s Lessee v. Ho- boken Land and Improvement Company above cited, it was held that Congress might endow an administrative officer with the power to determine the amount due from a government officer, and to enforce its collection, with- out the intervention of the courts, by a distress warrant 1 Murray v. Hoboken Land & Improvement Co., 18 How. 272; 15 L. ed. 372. , 532 Law oF THE UNITED StaTES 533 issued by the Solicitor for the Treasury. In Springer v. United States * a similar authority was granted the execu- tive arm for the collection of a tax from a private citizen, the court saying: “The prompt payment of taxes is al- ways important to the public welfare. It may be vital to the existence of the government. The idea that every taxpayer is entitled to the delays of litigation is unreason- able. If the laws here in question involve any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government.” The same finality that has been conceded to adminis- trative determinations has been predicated of the de- cisions of tribunals established under the treaty-making power.® It will be noted that in several of the foregoing cases the practical requirements of efficient government furnish the basis of argument. This same justification is even more emphasized in later cases, and, with the continuing increase In number and complexity of governmental functions, we may confidently expect that the courts will strengthen the hands of the administration whenever possible. It is not to be expected, however, that the judiciary will ever resign the right to determine whether the facts administratively determined are such as fall within the field of judgment granted to the administra- tive agents of the law, or whether, admitting the facts to be so determined, they furnish the authority for the executive acts predicated upon them.+ In a series of cases, the court has conceded to customs 2102 U.S. 586; 26 L. ed. 253. 3 Comegys v. Vasse, 1 Pet. 193; 7 L. ed. 108; Terlinden v. Ames, 184 U.S. 270; 22 Sup. Ct. Rep. 484; 46 L. ed. 534. 4 Smelting Co. v. Kemp, 104 U.S. 636; 26 L. ed. 875. 534 PRINCIPLES OF THE CONSTITUTIONAL officers final and conclusive authority in the matter of appraisement and classification of imports.® Fraud orders In Public Clearing House v. Coyne ® was sustained the constitutionality of a congressional delegation of authority to the Postmaster-General to determine, without the aid of the courts, whether the mail of a given concern should be excluded from the mails, because fraudulent or par- taking of the nature of a lottery. Though the judgment of the Postmaster-General, as granted him by statute, has thus been held to be final and conclusive with reference to the issuance of fraud orders, the Supreme Court held in American School of Magnetic Healing v. McAnnulty’ that the law required that this judgment should be one founded on facts as- certained by evidence, and that it might not be simply the Postmaster-General’s personal judgment as to the fraudulent character of the business whose mail is to be excluded. Chinese exclusion cases In the various Chinese exclusion cases the same princi- ples as those already laid down have been applied. In- asmuch, however, as their application has involved ques- tions of personal liberty rather than property, their adoption by the courts has seemed to some oppressive, and in the Ju Toy case,® decided in 1905, earnest dissenting opinions are filed. In Chae Chan Ping v. United States ® the court 5 Hilton v. Merritt, 110 U. 8. 97; 3 Sup. Ct. Rep. 548; 28 L. ed. 83; Buttfield v. Stranahan, 192 U. 8. 470; 24 Sup. Ct. Rep. 349; 48 L. ed. 525. 6194 U.S. 497; 24 Sup. Ct. Rep. 789; 48 L. ed. 1092. 7187 U.S. 94; 23 Sup. Ct. Rep. 33; 47 L. ed. 90. 8 United States v. Ju Toy, 198 U. 8. 253; 25 Sup. Ct. Rep. 644; 49 L. ed. 1040. 9130 U.S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068. Law or THE UNITED STATES 535 held valid the Act of 1888 prohibiting Chinese laborers from entering the United States who had departed be- fore its passage, without certificates issued under the Act of 1882 as amended by the Act of 1884 granting them permission to return. This the court did, even though it recognized that the Act of 1888 was in contravention of express stipulations of the Treaties of 1868 and 1880 between the United States and China. In Fong Yue Ting v. United States the doctrine was again declared that the provisions of an act of Congress passed in the exercise of its constitutional authority must be upheld by the courts, even though in contravention of an earlier treaty. The power to exclude or expel aliens is held to be vested in the political departments of the government, and to be executed by the executive authority except so far as the judicial department has been authorized by, , treaty or statute to intervene, or where some provision of the Constitution has been violated. Having this right, the executive department, it was held, might be authorized to provide a system of registration and identification of Chinese laborers, and to require them to obtain certificates of residence, and to provide for the deportation of those not so obtaining certificates within a year. The pro- vision of the act that the executive officer acting in behalf of the United States should bring the Chinese laborer before a Federal court in order that he might be heard and the facts upon which depended his right to remain in the country decided, was held valid, the duty so imposed upon the court being declared judicial in character. In Ekiu v. United States “ it was held that in reaching the determination whether an alien is lawfully entitled to enter the country, it is not necessary for the administra- tion to take testimony. The court, however, say: ‘An 1 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905. 11 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146. 536 PRINCIPLES OF THE CONSTITUTIONAL alien immigrant, prevented from landing by any such officer claiming authority to do so under an Act of Con- gress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.” Ju Toy case : In United States v. Sing Tuck,” the contention was made that the question, whether or not a person seeking admission was an alien, necessarily involved the authority of the immigration officials to act at all, and that this jurisdictional question was one which the courts could not refuse to pass upon. In this case the Supreme Court avoided passing upon the point in limine, holding that the petitioner couid not seek judicial remedy until he had exhausted (as he had not) the administrative remedies given him by statute. In United States v. Ju Toy," how- ever, the petitioner had carried his appeal to the highest administrative official authorized by statute to consider his claim, and the Supreme Court thereupon found itself obliged to pass upon the main contention, which it did, holding that the administrative decision as to the status of the petitioner, no abuse of authority being prima facie made out, was final and conclusive. Of course, if the question of alienage or citizenship is dependent upon a matter of law, and not a determination purely of fact, the matter will be reviewed by the courts. Thus, for example, in Gonzales v. Williams !* the court determined in the last instance whether or not a native of Porto Rico who was an inhabitant of the island at the time of cession to the United States was upon her arrival at a port of this country to be treated as an alien im- 12194 U.S. 161; 24 Sup. Ct. Rep. 621; 48 L. ed. 917. 13 198 U. 8. 253; 25 Sup. Ct. Rep. 644; 49 L. ed. 1040. 14192 U.S. 1; 24 Sup. Ct. Rep. 171; 48 L. ed. 317. Law or THE Unitep Starss 537 migrant within the meaning of the Act of Congress of 1891. Constitutional requirements of administrative determinations The series of cases, culminating in that of United States v. Ju Toy, considered in the preceding paragraphs, are to be construed as determining simply that when, by statute, the conclusive determination of facts has been vested in administrative agents, a judicial review thereof may not be demanded as a constitutional right. In two respects, however, such administrative acts are, and con- stitutionally must be, reviewable in the courts. In the first place, as has already been pointed out, the question of the jurisdiction of the administrative agents or bodies to act is always open to judicial examination. In the second place it is always open to the courts to determine whether, in the administrative procedure which has been followed, the essential procedural requirements of due process of law have been present. As said by the court in Yamataya v. Fisher,” the court “must not be under- stood as holding that administrative officers, when execut- ing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.” In this case it was held that due process was satisfied by an informal notice to the plaintiff that an investigation was to be had to determine whether she should be deported, although it was alleged that, because of her lack of knowl- edge of the English language, she did not understand the import of the questions propounded to her, and that, in fact, she did not know that these questions related to the matter of her possible deportation. Where, from the nature of the case, the determination 15 189 U. S. 86: 23 Sup. Ct. Rep. 611; 47 L. ed. 721. 538 PRINCIPLES OF THE CONSTITUTIONAL of the fact at issue, is, for example, the ascertainment of the character of a commodity, which character may be ascertained by comparing it with an established standard, it has been held that a hearing is not needed. And in Ekiu v. United States, earlier referred to, the statute was held not to require inspectors to take testimony, but that they might decide upon their own inspection, whether an alien immigrant was entitled to enter the country. It was, however, declared that upon habeas corpus the question could be determined by the courts whether one prevented from landing had had an opportunity to ascer- tain whether his detention was lawful.® Arbitrary administrative discretion Generally speaking, it may be said that while wide discretionary power may constitutionally be granted to administrative agents, that discretion must be one which is guided by reason, justice, and impartiality, and exer- cised in the execution of policies predetermined by legisla- tive act, or fixed by the common law. In Yick Wo »v. Hopkins ” the court laid down the doc- trine that the legislative investment of purely personal and arbitrary power in the hands of any public official is a denial of due process of law. ‘The very idea,” say the court, “that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”’ Taken by itself the language of the court, as will be seen from the quotation which has been made, indicates that in no case may an arbitrary discretionary power be 6 Cf. Chin Low v. United States, 208 U. 8. 8; 28 Sup. Ct. Rep. 201; 52 L. ed. 369. 7 118 U.S. 356; 6 Sup. Ct. Rep. 1064; 30 L. ed. 220. Law oF THE UNITED Srares 539 granted to a public official which will compel any person “to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another.” The force of this holding, is, however, some- what weakened by the fact that the court found that, whatever the terms or intent of the ordinances in question, they had actually been administered in a grossly partial and unjust manner. And also, and more importantly, in the later case of Wilson v. Eureka City ' the court ex- pressly upheld the constitutionality of an ordinance com- mitting the right of the plaintiff with reference to the re- moval of a building owned by him, te the unrestrained discretion of a single official. The summary of cases in the State courts, given by the court in Re Flaherty,” in which unrestrained discretion is sustained, is quoted with approval, the court declaring the discretionary power to be ‘‘based on the necessity of the regulation of rights by uniform and general laws—a necessity which is no better observed by a discretion in a board of aldermen or council of a city than in a mayor, and the cases, therefore, are authority against the contention of plaintiff in error.” In this case it is certain that the Supreme Court com- mits itself to the doctrine that administrative officials may, in certain cases at least, be given a discretionary power to act according to their own unrestricted judgment as to what the circumstances require, and that, therefore, an ordinance or a law purporting to grant this authority is not, upon its face, void. It may be predicted, however, that the grant of such arbitrary power will not be upheld except in those cases in which comparatively unimportant private interests are in- volved, or where the requirements of administrative effi- 18 173 U. 8. 32; 19 Sup. Ct. Rep. 317; 43 L. ed. 603. 19105 Calif. 558. See also Davis v. Massachusetts, 167 U. 8. 43; 17 Sup. Ct. Rep. 731; 42 L. ed. 71. 540 PRINCIPLES OF THE CONSTITUTIONAL ciency demand the existence of such an authority. And, furthermore, the doctrine of Yick Wo v. Hopkins will of course apply in those cases in which it is clearly shown that in fact the discretionary power which has been granted has been abused and oppressively or unfairly ex- ercised. In American School of Magnetic Healing v. McAnnulty,” a fraud order of the Postmaster-General was held not authorized by the statute under which the right to issue the order was claimed, the court holding that the law did not grant to the Postmaster-General a power to issue fraud orders except in cases where there was evidence, that is, something more than the individual opinion of the Postmaster-General, to show that the business against: which the orders might be issued is a fraudulent one. The statutory power of Congress, should it see fit to exer- cise it, to vest in the Postmaster-General a general power to exclude from the use of the mails those concerns which in his judgment he might deem to be fraudulent was thus not involved or passed upon. Mandamus In an earlier chapter of this treatise it has been pointed out that the courts will not by mandamus or other writ attempt to control the exercise by administrative or execu- tive agents of a discretion given them by the Constitution or statutes. This, as we have seen, excludes from the field of judicial review all those acts which, as political in character, are purely discretionary. It also excludes an attempt upon the part of the courts to control all other administrative and executive acts in so far as there is possessed by those officials intrusted with their perform- ance, a discretion as to whether the acts shall be per- formed at all. Where, however, an act, not purely politi- » 187 U.S. 94; 23 Sup. Ct. Rep. 33; 47 L. ed. 90. Law oF THE UNITED STATES 541 cal in character, is by law required of an officer, the per- formance of which involves the exercise of a discretion, the courts may require that the discretion be exercised and the act performed. Furthermore, whether or not an officer has overstepped the limits of the discretionary powers granted him is always a proper subject for judicial determination, though not by mandamus. That a mandamus will lie to compel the performance of purely ministerial acts, that is, acts not involving the exercise of political or administrative discretion, is a princi- ple that antedates the adoption of the United States Constitution.” The courts will not interfere by mandamus with ex- ecutive officers of the government in the exercise of their ordinary official duties, even where those: duties require an interpretation of the law. The writ of mandamus, in other words, is not to be used as a writ of error in place of an appeal. If there has been a misinterpretation of the law by the executive officer, the court, if it has been given jurisdiction, will correct it on appeal, or the person who believes himself injured may institute appropriate civil or criminal proceedings.”? When a subordinate administrative officer is overruled by his superior who has an appellate administrative juris- diction over him, his duty to obey is a ministerial one and may be compelled by mandamus.”* The Federal court must, however, have been granted, by statute, the author- ity to issue the mandamus and, in fact, no such general authority has been granted by Congress to the Federal 21-Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60. 22 Riverside Oil Co. v. Hitchcock, 190 U. 8. 316; 23 Sup. Ct. Rep. 698; 47 L. ed. 1074; Bates & Guild Co. v. Payne, 194 U. S. 106; 24 Sup. Ct. Rep. 595; 48 L. ed. 894. 23 United States v. Miller, 128 U. S. 40; 9 Sup. Ct. Rep. 12; 32 L. ed. 354. 542 PRINCIPLES OF THE CONSTITUTIONAL courts. It has, however, been held, that the courts of the District of Columbia, having been granted general common-law powers, possess the authority.” The amenability of the President to compulsory judicial process From the foregoing it has appeared that, for the per- formance of a purely ministerial act, a mandamus will lie to the heads of the great departments of the Federal Government, and, a fortiori, to their subordinates. We have now to inquire whether the President, the chief executive of the nation, is, with reference to the per- formance of a purely ministerial act, similarly subject to compulsory judicial process. This question has several times been before the courts, and though not often passed upon in limine, has been uniformly answered in the nega- tive. As was intimated in Marbury v. Madison,” a chief of one of the executive departments, when acting under the direct orders of the President, with reference to a matter which has, by the Constitution, been placed within the discretionary or political control of the President, is not amenable to the authority of the courts. Obligation of the President to enforce laws believed by him to be unconstitutional That the President has the right to veto an act of Con- gress because he believes it to be an unconstitutional measure, even though he thus substitutes his judgment as to this for that of Congress, is beyond doubt. The objection that has sometimes been made that in so doing 24 Kendall v. United States, 12 Pet. 524; 9 L. ed. 1181. 251 Cr. 137; 2 L. ed. 60. See, also, Burr’s Trial, passim; Mis- sissippi v. Johnson, 4 Wall. 475; 18 L. ed. 437; Georgia v. Stanton, 6 Wall. 50; 18 L. ed. 721. Law or THE UNITED STATES 543 the President arrogates to himself a judicial function is without weight. In placing a veto upon a congressional enactment, the President is exercising, not a judicial, but a legislative function. His veto is of the nature of a powerful vote, and his decision as to the way his vote is to be cast must be based upon his own views and opinions. The Consti- tution gives him the power and he has the right to use it; indeed, it is his duty to use it. He has the right to use his veto upon the ground of unconstitutionality even when a measure of similar character has received previous in- terpretation by the Supreme Court, and has been sus- tained. His constitutional right or even duty of thus using his veto power has not been impaired by the manner in which any previous act has been treated. In 1832 Jackson vetoed the bill providing for a recharter of the National Bank. This he did mainly on the ground of its unconstitutionality, notwithstanding the fact that in the case of McCulloch v. Maryland this institution had been carefully examined by the Supreme Court and pronounced constitutional. Whether the President has the right to refuse to execute a law, passed during the term of a predecessor, or over his veto, because he deems it unconstitutional, is an entirely different question from that just considered. Here the President has to deal not with a measure in the process of enactment, as is the case when the veto is exercised, but with a bill that has passed through all the constitutional forms of enactment, and has become a law, and it would seem that he has no option but to enforce the measure. The President has not been given the power to defeat the will of the people or of the legislature as embodied in law. That the President and all other officers of the govern- ment have not the right to refuse obedience to a judgment of the Supreme Court, because he or they believe such 544 PRINCIPLES OF THE CONSTITUTIONAL judgment to be based upon an incorrect interpretation of the Constitution, scarcely needs argument. This case is stronger than the former one by reason of the additional support of the judiciary. To refuse now to execute the command of the court is to assume the judicial power of a court of appeals as well as legislative functions. Liability of the State for the acts of its officers The doctrine of the non-suability of the State prevents the prosecution of a claim against the United States, or a State of the Union, whether that claim be founded upon a tort of one of its agents, or be one arising out of a contract.” Legal liability of public officials to private individuals injured by their acts —ultra vires acts As has elsewhere been shown in this treatise, a funda- mental principle of American law is that the legality of acts of public officers is determined in the ordinary courts according to the same rules that govern the decision of suits between private individuals. Thus, generally speaking, no officer can defend an ultra vires or otherwise illegal act by setting up his official position or exhibiting the command of a political superior. This last statement as to the non-applicability of the principle of respondeat superior is, however, subject to this qualification, that the order of an administrative superior, prima facie legal, though in fact not legal, may be set up in defense of an act commanded by military superiors.’ The result of the doctrine last stated is, as will be seen, that an act is defended for the performance of which in fact no legal authority can be produced. Simply the color 6 Dooley v. United States, 182 U. 8. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074, and authorities there cited. 27 In re Fair, 100 Fed, Rep. 149. Law or THE UNITED STATES 545 of authority on the part of the superior giving the com- mand is held a sufficient defense. Clearly common justice, and the practical necessities of administration justify the rule, yet, inasmuch as it does in fact protect an act es- sentially illegal, the doctrine is one that is kept within the narrowest possible bounds. Only where there is present no fact which would put the subordinate, as a man of ordinary intelligence, upon his guard, or where the practi- cal necessities of the case leave little or no opportunity for individual judgment in the matter, should the rule be applied. In all other cases, it is to be repeated, the pub- lic official is able to defend his act only by showing some existing legal authority for it. The necessities of the case require the foregoing doc- trine, with reference to the military arm of the govern- ment. There not being the same urgency for immediate obedience the doctrine does not prevail in civil mat- ters.” Responsibility of officers for improper exercise of authority — malice, etc. Thus far we have been considering the criminal and civil responsibility of public officers for ultra vires and other- wise illegal acts. We have now to consider their responsi- bility to private individuals for acts committed by them within the general scope of their respective authorities, but characterized by undue severity, discrimination, or malice. In general no officer is held responsible in damages to an individual for non-performance or negligent perform- ance of duties of a purely public or political character. “Tn order to be made the basis of a claim for damages, the duty, the neglect of which has caused the damage, must be one which the individual suffering the damage 28 Hendricks v. Gonzales, 67 Fed. Rep. 351. 35 546 PRINCIPLES OF CONSTITUTIONAL Law has the right, not as a part of the public, but as an in- dividual to have performed.” ” So long as public officers act within the general sphere of their authority, their legal responsibility to private individuals for the manner in which they act, whether their acts be dictated by malice, or characterized by negli- gence, is very slight. Responsibility of judges of courts of superior or general ju- risdiction That judges of courts of superior or general jurisdiction are not civilly liable for judicial acts, even though ma- liciously or corruptly done, has already been indicated, the cases in point being reviewed by the court in Spald- ing v. Vilas.*° This is true even when the acts done are in excess of their jurisdiction, provided it appear that this want of jurisdiction is not clear and unmistakable. Where however, authority is clearly usurped, action will lie.*! * Goodnow, American Administrative Law, 402; Spalding v. Vilas, 161 U.S. 483; 16 Sup. Ct. Rep. 631; 40 L. ed. 780; Kendall v. Stokes, 3 How. 87; 11 L. ed. 506. 161 U. S. 483; 16 Sup. Ct. Rep. 631; 40 L. ed. 780. 31 Bradley v. Fisher, 13 Wall. 335; 20 L. ed. 646. CHAPTER LV THE DELEGATION OF LEGISLATIVE POWER Delegated power may not be delegated “One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain, and by that constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted cannot relieve it- self of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.’’! : The principle as thus absolutely stated is subject to one important exception, and to several qualifications, or at least explanations. Local governing powers may be delegated The exception is with reference to the delegation of powers to local governments. The courts have held, as to this, that the giving by the central legislative body of extensive law-making powers with reference to local matters to subordinate governing bodies being an Anglo- 1 Cooley, Constitutional Limitations, 7th ed., 163. 547 548 PRINCIPLES OF THE CONSTITUTIONAL Saxon practice, antedating the adoption of the Constitu- tion, and the right of local self-government being funda- mental to our system of politics, our Constitutions are, in the absence of any express prohibitions to the contrary, to be construed as permitting it. Power to issue administrative ordinances may be delegated The qualifications to the rule prohibiting the delegation of legislative power are those which provide that while the real law-making power may not be delegated, a discre- tionary authority may be granted to executive and ad- ministrative authorities: (1) To determine when and how the powers conferred are to be exercised; and (2) to estab- lish administrative rules and regulations, binding both upon their subordinates and upon the public, fixing in detail the manner in which the requirements of the stat- utes are to be met, and the rights therein created to be enjoyed. The principle which permits the legislature to provide that the administrative agents may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it is its duty to do, de- termines that, under given circumstances, certain execu- tive or administrative action is to be taken, and that under other circumstances, different or no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what pub- lic policy demands, but simply the ascertainment ‘of what the facts of the case require to be done according to the terms of the law as legislatively declared. The doctrine thus declared is without objection so long as the facts which are to determine the executive acts are Law OF THE UNITED STATES 549 such as may be precisely stated by the legislature and certainly ascertained by the executive. When this is not so the officer entrusted with the execution of the law is necessarily vested with an independent judgment as to when and how the law shall be executed; and when this independence of judgment is considerable there is ground for holding that the law is not simply one in presenti to ‘take effect in futuro, but is a delegation by the law-making body of its legislative discretion.” The question when an administrative discretion is so broad as to amount to a legislative power is not one that may be solved according to any fixed formula, but one that has to be answered in each individual case according to the judgment of the court.’ Delegation of rate-making powers That the fixing of the rates or charges that may be col- lected by public service corporations for the services rendered by them is, primarily at least, a legislative function, is so well established that the citation of author- ities is scarcely necessary.* Indeed, it was originaily held in Munn ». Illinois * that this power was so exclusively legislative that the validity of laws in regulation of busi- nesses affected with a public interest could not be ques- tioned by the courts under the due process of law clauses of the Constitution. In the States the delegation by the legislative body to 2 The leading case is Field v. Clark, 143 U. 8. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294. 3 See Buttfield v. Stranahan, 192 U. S. 470; 24 Sup. Ct. Rep. 349; 48 L. ed: 525; Union Bridge Co. v. United States, 204 U. S. 364; 27 Sup. Ct. Rep. 367; 51 L. ed. 523; St. L., I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281; 28 Sup. Ct. Rep. 616; 52 L. ed. 1061. 4For citation of cases see Atlantic C. L. R. Co. v. N. Carolina Corp. Com., 206 U. 8. 1; 27 Sup. Ct. Rep. 585; 51 L. ed. 933. 594 U. S. 113; 24 L. ed. 77. 550 PRINCIPLES OF THE CONSTITUTIONAL commissions or other boards of authority to fix rates has been generally sustained where by law general principles have been established for the guidance and control of these administrative bodies in the exercise, in specific instances, of their rate-making powers. In a number of instances these laws have come before the Supreme Court of the United States, but not in such a way as to compel the court to pronounce squarely upon their constitutionality as tested by the principle that legislative power may not be delegated by the law-making body to an administrative board or commission, for this is a question of State constitutional law with which the Federal courts have no concern. It is only when the allegation is made that when the rates as fixed, whether directly by the legislature or by another authority, are confiscatory, and, therefore, operate to deprive either the railway or the shipper of property without due process of law, that a Federal question is raised. That a considerable amount of regulative control over railways may constitutionally be delegated to the Inter- state Commerce Commission has not been disputed. It was not until the act of 1906, however, that that body was intrusted by Congress with the authority to fix in specific instances the rates that interstate railways might charge. By that law it is provided that the rates which these companies may legally fix, or which may be fixed for them by the Commission, must be “just and reason- able.” This is, practically, the only principle legislatively laid down for the guidance and control of the Commission. The constitutionality of this feature of the law has, how- ever, not been questioned by the Supreme Court.® The referendum as a delegation of legislative power As to whether the so-called “referendum” employed ‘Int. Com. Com. v. N. P. R. Co., 216 U. 8. 538; 30 Sup. Ct. Rep. Law oF THE Unrrep STaTEs 551 in some of the States is an unconstitutional delegation by the legislature of law-making powers to the people, there is a conflict of authorities. The weight of authority would, however, seem to be against the validity, apart from express constitutional authorization, of the submis- sion to the electorate of the entire State of the question _ Whether a measure shall or shall not become a law. Administrative ordinances The authority that administrative agents may con- stitutionally exercise in the promulgation of rules and ordinances regulating in detail the execution of the laws the enforcement of which has been placed in their hands, and the legal force to be given to those rules thus ad- ministratively established, is a subject that has given rise to many adjudications. These rules, it is to be observed, fall into two general classes. First, those established by an administrative superior and directed solely to the ad- ministrative inferior; secondly, those binding of course the administrative inferiors, but primarily directed to the private citizen, and fixing the manner in which the re- quirements of the statute are to be met by him. This second class of rules is, in turn, divisible into two classes; those to which a criminal penalty is attached for their violation, and those merely defining the manner in which rights created by the statute are to be enjoyed. The first of these two main classes of administrative ordinances differ from those of the second class in that though valid as between the administrative superior and his inferior, they do not create legal rights which may be enforced in the courts. Of this class, for example, are certain of the civil service regulations which the Presi- dents of the United States have issued under authority of 417; 54 L. ed. 608; Int. Com. Com. v. C. R. I. & P. R. Co., 218 U. S. 88; 30 Sup. Ct. Rep. 651; 54 L. ed. 946. 552 PRINCIPLES OF THE CONSTITUTIONAL the Civil Service Acts, fixing the classes to be included in the “classified service,” providing for examinations for admission to the service, and declaring the conditions under which promotions and removals may be made. As to those rules or ordinances, established by executive agents, providing the modes under which private persons may receive the privileges granted by law or be held re- sponsible for violations of the duties imposed therein, it may in general be said that the executive may estab- lish all special regulations that fall within the general field of the authority granted by law, and which are reasonably calculated to secure the execution of the legis- lative will as laid down in the statutes. With reference to many of the Army and Navy Regu- lations issued by the President it is to be observed that these derive their force not from congressional authoriza- tion, but directly from the constitutional power of the President as Commander-in-Chief of the army and navy; and this, too, notwithstanding the constitutional pro- vision that Congress may make rules for the government and regulation of the land and naval forces.” An administrative officer in the execution of his duties may not change the express provisions of the law, even though these provisions no longer seem the best adapted to secure the end desired by Congress.® Penal ordinances The courts scrutinize with especial care those cases in which a criminal action is based upon a violation of an administrative order. It is not questioned that the legis- lature may attach a criminal liability to the violation of an administrative order, but in each case it must clearly 7 United States v. Eliason, 16 Pet. 291; 10 L. ed. 968. 8 Merritt v. Welsh, 104 U. S. 694; 26 L. ed. 896; Morrill v, Jones, 106 U. 8. 466; 1 Sup. Ct. Rep. 423; 27 L. ed. 267. Law oF THE UNITED STATES 553 appear that the order is one which falls within the scope of the authority conferred. Thus, while there are many cases in which it has been held that the delegation of an ordinance-making power to the executive is not a delega- tion of legislative power, there are comparatively few cases in which has been sustained the right of an adminis- trative officer to establish an ordinance the violation of which will be punished criminally.° By the Railway Rate Law of 1906 the Interstate Com- merce Commission is authorized to issue various orders with reference to the conduct of their’ business by inter- state carriers, and provision is made that violation of these orders shall be punishable by fines and forfeitures which may be recovered in civil suits in the name of the United States. 9 United States v. Maid, 116 Fed. Rep. 650; United States v. Eaton, 144 U. 8. 677; 12 Sup. Ct. Rep. 764; 36 L. ed. 591; United States v. Bailey, 9 Pet. 238; 9 L. ed. 113; Ex parte Kollock, 165 U. 8. 526; 17 Sup. Ct. Rep. 444; 41 L. ed. 813. INDEX A Acquisition of Territory power of United States, 120 et seq. Actions in rem and in personam, 79 Administrative Acts power of courts to perform, 530 judicial review of, 531 Administrative Agents judicial powers of, 531 Administrative Decentralization of the States, 481 Administrative Determinations conclusiveness of, 532 et seq. fraud orders, 534 Chinese exclusion, 534 arbitrary discretion, 538 Administrative Functions courts will not exercise, 437 Administrative Ordinances power to issue, 548, 552 fixing rates, 549 penal, 553 Administrative Power of the President, 478 et seq. Admiralty Jurisdiction defined, 461 navigability the test, 462 canals, 463 does not include general po- litical jurisdiction, 463 courts of, 464 legislative powers with refer- ence to, 465 Admission of States to the Union, 117 Agreements international, not requiring submission to the Senate, 161 Alaska status of, 148 Aliens status of, 95 exclusion and expulsion of, 97 protection of person and prop- erty of, 98 treaty rights of, to hold land, 174 Alliances between the States, 92 Amendment of the Constitution, 177 et seq. approval of President not nec- essary, 178 American Tobacco Case doctrine of, 285 Amnesty acts of, by Congress, 484 Annexation of Territory power of the United States, 120 et seq. right of, based on treaty and war making powers, 122 505 556 Guano Islands annexed by statute, 124 modes in which effected, 125 not effected by conquest, 134 by treaty, 137 et seq. Anti-Trust Act decisions under, 267 Appointing Power constitutional provisions, 485 officer defined, 485 inferior officers, 486 nominations, 487 civil service requirements, 488 removals, 489 Apportionment of members of Congress, 186 et seq. Appraisement see “Taxes” and “Taxation” Appropriations power of Congress to make, 215, 311 Arbitrary Discretion power to grant, 538 mandamus, 540 Arrest freedom of congressmen from, 184 Articles of War defined, 493 Assembly right of, 328 Attainder bills of, 309 Autonomy of the States, 58 B Banking bills of exchange not articles of commerce, 233 INDEX Bankruptcy defined, 294 States have concurrent power, 295 their laws without extrater- ritorial force, 296 may not be retroactive, 296 suspended by federal law, 297 Banks, National state taxation of, 370, 374, 376 Beef Trust Case doctrine of, 284 Belligerency recognition of status of, 159 existence of, a political ques- tion, 435 Bills of Attainder defined, 309 Bills of Credit defined, 228, 347 et seq. Bills of Exchange not articles of commerce, 233 Bonds taxation of, 390 Borrowing Power of United States, 228 Bounties constitutionality of, 220 Bridges state authority over, 241 Cc California annexation of, 138 Canals admiralty jurisdiction over, 463 Capital Stock of interstate carrier com- panies, state taxation of, 263 INDEX Captures on land and water, 306 Carmack Amendment provisions of, 285 note Carriages tax on, not direct, 222 Carrier Companies state regulation of, 263 common-law obligations of, 264 regulation of rates of, 264 Certiorari may not be issued by State to federal courts, 425 Child Labor and interstate commerce, 273 Chinese exclusion of, 97, 155 note, 534 cases on, 534 Circuit Courts of Appeals organization of, 398 appeals from, to Supreme Court, 402 jurisdiction of, 405 Circulating Notes tax on, not direct, 222 Citizenship defined, 99 state and federal distinguished, 99 Slaughter House Cases, 101 Wong Kim Ark Case, 102 double citizenship, 106 in the territories, 150 et seq. see “Diversity of Citizen- ship”; ‘Expatriation”; “Indians”; ‘“‘ Naturaliza- tion” Civil Rights Act unconstitutionality of, 73 Civil Rights Cases, 73 Civil Service 557 constitutionality of require- ments of, 488 Claims against foreign States, 162 Claims, Courts of organization of, 399 jurisdiction of, 407 Classifications when permitted, 353 Coinage constitutional provision, 298 Comity interstate, 83 et seq. political privileges, 84 state proprietary rights, 84 as to non-residents, 84 corporations not citizens with- in meaning of the Comity Clause, 85 Commander-in-Chief powers of, 498 Commerce see “Interstate Commerce”’; “Foreign Commerce” Commerce Court organization of, 399 jurisdiction of, 411 Commodities Clause act of 1906, 271 Common Law obligations of, upon interstate carriers, 264 in federal courts, 445 interstate commerce and, 446 Compacts between the States, 92 et seq. between the States and the United States, 93 Concurrent Federal Powers defined, 57 558 INDEX Confederacy see “Unconstitutional Leg- and federal State distin- islation”’ guished, 6 Congressional Governments Confederations in the territories, 128 of the States, 92 Conflict of Laws as applied to the States, 76 Congress legislative power under Four- teenth Amendment, 73 legislative powers derived from treaty-making power, 174 its organization, 180 et seq. qualifications of members of, 180 determined by the respective houses, 181 power of, to compel testimony ‘and punish for contempt, 183 disqualification of members of, to hold federal office, 183 privileges of members of, 184 election of members of, 186 et seq. apportionment of members, 188 congressional districts, 188 process of legislation in, 199 et seq. quorum, 199 rules of procedure, 199, 201 conclusiveness of records of proceedings of, 200 revenue measures in, 202 general power of, 205 members of, not impeachable, 467 power of, to punish contempts, 529 constitutionality of acts of, Conquest does not annex territory, 134 Constitution rules governing construction of, 29 et seq. to be construed as a whole, 39 applicability of, to modern conditions, 41 double province of, in United States, 47 Constitutional Conventions interpretative value of debates in, 35 Constitutional Law defined, 8 et seq. American doctrine of suprem- acy of, 12 Construction constitutional, principles of, 29 et seq. of federal powers, 49 Constructive Service in actions in rem and in per- sonam, 79 in divorce proceedings, 80 et seq. Contempts power of Houses of Congress to punish for, 183 legislative control of courts’ power to punish, 527 President’s power to pardon, 528 congressional power as to, 529 Contracts see ‘Obligation of Contracts” Convenience, Public a matter of police regulation, 246 INDEX Conventions constitutional, interpretative value of debates in, 35 Copyrights constitutional provision, 304 Corporations not citizens within meaning of the Comity Clause, 85 foreign, engaged in interstate commerce, state control of, 252 federal control of, when en- gaged in interstate com- merce, 286 citizenship of, 412 federally chartered, 413 national banks, 413 Corporation Tax federal law of 1909, 225 Correspondence international, in hands of the President, 161 Correspondence Schools in interstate commerce, 235 Counterfeiting power of United States and of the States to punish, 299 Court of Customs Appeals organization of, 398 jurisdiction of, 410 Courts power of, over legislation, 12 et seq. nature and expediency of the power, 17 rules governing constitutional construction by, 29 et seq. performance of administrative acts by, 530 review by, of judicial deter- minations, 531 see “Judiciary” 559 Courts, Federal inferior, 397 supreme court, 397 circuit courts of appeal, 398 district courts, 398 customs appeals, 398 commerce court, 399 court of claims, 399 jurisdiction of, based on di- versity of citizenship, 411 et seg. citizenship of 412 jurisdiction of cases arising under Constitution, treaties and statutes, 414 removal to, of suits in state courts, 415 et seg. certiorari by, 425 injunctions to state courts, 426 state restrictions upon right of removal to, 428 et seq. political questions in, 434 et seq. international law in, 439 state law in, 441 rules of evidence and pro- cedure, 443 common law in, 445 general commercial law, 447 admiralty, 464 legislative control over, 525 responsibility for acts of, 546 Courts-Martial power of, 495 et seq. Credit bills of, 228 Credits taxation of, 392 Criminal Judgments and De- crees corporations, 560 full faith and credit clause not applicable to, 77 Criminal Jurisdiction of the United States, 324 Criminal Law federal, 440 general, in federal courts, 447 Cruel and Unusual Punishments discussed, 321 Cuba administration of, by United States, 140 military occupation of, 436 Currency see ‘Bills of Credit”; “Legal Tender” Customs collection of, 226 D Dartmouth College Case doctrine of, 360 Debates in constitutional conventions, interpretative value of, 35 legislative, 38 Debts taxation of, 391 Declaration of War power to issue, 499 see War” Declaratory Legislation constitutionality of, 525 De Facto Governments status of, 134 Delegated Powers distinguished from reserved, 48 Delegation of Power principle governing, 547 et seq. see “Legislative Power” INDEX Denunciation of treaties, 175 Direct Taxes constitutional definition of, 222 et seq. Disfranchisement in the Southern States, 194 District of Columbia full faith and credit clause not applicable to, 77 inhabitants of, not citizens of a State, 102 government of, 130 not a State, 170 exclusive legislative power over, is in Congress, 131 commerce with, 292 judiciary of, 399 District Courts organization of, 398 appeals from, to Supreme Court, 402 jurisdiction of, 405, 410 Districts congressional, 188 Diversity of Citizenship jurisdiction of federal courts based upon, 411 e¢ seg. 442 of corporations, 412 fictitious citizenship, 413 of national banks, 413 Divorce full faith and credit of decrees of, 80 ef seq. Doing Business by foreign corporations, 253 Domestic Disorder use of militia to suppress, 501 Domicile in divorce proceedings, 80 et seq. of aliens, 96 INDEX Double Jeopardy what constitutes, 316 Double Taxation prohibited, 395 Dred Scott Case doctrine of, 100 Drummers and interstate commerce, 255 Due Process of Law defined, 74, 333 and taxation, 214, 226 and self-incrimination, 318 procedural requirements of, 334 appeals not required, 336 trial in courts of law not nec- essary, 336 confrontation of witnesses not essential to, 336 substantive rights protected, 337 liberty defined, 339 police power and, 341 Duties defined, 212 upon exports, 221 E Educational Qualifications upon the suffrage, constitu- tionality of, 187 Elections of members of Congress, 186 et seg. congressional, right to vote at, a federal right, 190 federal control of, 191 of senators, 195 ef seq. Electors presidential, appointment of, 471 et seq. 36 561 Eleventh Amendment adoption of, 456 does not prevent review by Supreme Court of state criminal suits, 457 effect of, on first eight amend- ments, 457 Eminent Domain right of, possessed by United States, 133 power of, distinguished from taxation, 209 federal power, 381 Employers’ Liability federal acts, 275 et seq. Enlistment in army or navy, obligations assumed by, 494 Equal Protection of the laws, 93, 343, 350 et seq. classifications, 353 similar but not the same privi- leges required, 354 Equality in taxation, 216 Evidence tules of, in federal courts, 443 Excises defined, 213 Exclusion of aliens, 97 of articles from interstate com- merce by the States, 248 of Chinese, 534 Ju Toy Case, 536 Exclusive Federal Powers defined, 57 Executive Interpretation force of, 33 Expatriation law governing, 107 et seq. 562 Expediency of legislation; not a subject of judicial examination, 31 Export Duties defined, 221, 257 Ex Post Facto Legislation defined, 310 Express Limitations discussed, 55 Express Powers defined, 49 Expulsion of aliens, 97 Extradition between the seg. may not be compelled by the Federal Government, 87 by a State to a foreign State, 88 auxiliary state legislation, 89 judicial examination of pro- ceedings for, 89 trial for offenses other than those extradited for, 90 who are fugitives, 91 power of the President in ab- sence of statute, 163 Extrinsic Evidence when resorted to, 34 States, 87 et F Federal Powers supremacy of, 18 et seq. general extent of, 47 et seq. to be liberally construed, 49 express limitation upon, 55 implied limitations upon, 56 exclusive and concurrent, 57 Federal Question defined, 404 INDEX Federal Rights under the Fourteenth Amend- ment, 68 Federal State and confederacy distinguished, 6 Federalist, The interpretative value of, 37 Ferries state control of, 241 Fifteenth Amendment enforcement clause of, 186, 189, 193 see ‘‘Congress’’; ‘‘Elections”; “Suffrage” Foreign Commerce see “Interstate Commerce”’ Foreign Corporations rights of, 85 state control of, when engaged in interstate commerce, 252 Foreign Relations see ‘Treaty Power” Fourteenth Amendment adoption of, 65 general purpose of, 65 et seg. effect upon first eight amend- ments, 71 legislative power granted by, 73 declaration of, as to citizen- | ship, 100 provision of, as to apportion- ment of members of Con- gress, 186 see ‘‘Citizenship”’; ‘‘ Due Proc- ess’’; “Equal Protection” Franchises state taxation of, 372 taxation of, 394 Fraud Orders power to issue, 534, 540 INDEX Free Intercourse a federal right, 70 Freedom of Press right of, 300 Fugitives see “Extradition” Full Faith and Credit defined, 76 in the District of Columbia. and in the territories, 77 federal judgments and de crees, 77 applies only to civil judg- ments and decrees, 77 judgments in rem and in per- sonam, 79 divorce, 80 G Game Laws, State and interstate commerce, 247 Government defined, 1 republican form of, 59 de jure, character of, 62 military and presidential, in acquired territories, 134 et seq. de facto governments, 134 Gross Receipts see ‘‘Receipts”’ H Habeas Corpus issuance of writs of, by federal courts, 422 issued only when imperative, 424 suspension of, in time of war, 514 et seq. 563 power of President to sus- pend, 518 Harbor Regulations state authority, 241 Hatters’ Case doctrine of, 284 Hawaii annexation of, by joint resolu- tion, 125 jury trial in, 146 citizenship in, 152 Hearing necessity for, in tax proceed- ings, 226 History of the Times as a means of interpretation, 37 Impeachment persons subject to, 467 members of Congress not sub- ject to, 467 for what offenses, 468 effect of dissolution of Con- gress, 469 punishment under, 469 Implied Limitations discussed, 56 on the treaty power, 173 et seq. Implied Powers, 49 “necessary and proper” con- strued, 50 Imposts defined, 212 Income Taxes not direct, 223 Incorporated Territories status of, 141 et seg. see ‘‘Insular Cases” 564 Indians lands of, 109 et seq. legal status of, 111 et seg. federal jurisdiction exclusive, 113 naturalization of, by, statute, 115 land in severalty acts, 115 commerce with, 292 Infamous Crimes defined, 314 Inferior Officers defined, 486 Information to Congress, 482 Inherent Sovereign Powers doctrine of, 54 Inheritance Taxes constitutionality of, 218 not direct, 223, 225 Injunction may not be issued by state courts to federal courts, 425 when issued by federal to state courts, 426 Insolvency see “Bankruptcy” Inspection Laws state, and interstate com- merce, 246 Insular Cases doctrines of, 137, 144 et seq. see ‘‘Territories”’ Insurance not commerce, 234 bearing of lottery decision upon, 235 Insurance Companies tax on receipts of, not direct, 222 Intangible Personalty taxation of, 390 InDEX Intent to export, 236 International Law in federal courts, 439 International Powers of United States, 53 Interpretation see “Construction” Interstate Comity see ‘‘Comity” Interstate Commerce importance of the commerce clause, 231 defined, 231 transportation essential to, 231 instrumentalities of, 232 embraces navigation, 233 persons subjects of, 233 bills of exchange, 233 insurance, 234 lotteries, 235 correspondence schools, 235 production of commodities not included in, 236 intent to export not control- ling, 236 includes sales, 237 original package doctrine, 238 et seq. federal power exclusive, 239 state police powers, 242 et seg. state regulation of trains, 244 state inspection laws, 246 state game laws, 247 power of States to exclude ar- ticles from, 248 liquor laws, 249 Wilson law, 249 oleomargarine, 250 authority of States over for- eign corporations, 252 INDEX state taxation of, 253 et seq. drummers, 255 peddlers, 256 state taxation of articles of, 256 goods in transit, 257 persons in transit, 258 of property of carriers, 259 unit of use rule, 260 taxation of receipts, 260 charter provisions, 262 taxation of capital stock, 263 state regulation of carrier com- panies, 263 regulation of rates, 264 routes outside the State, ter- minals within, 265 federal legislative power over, 267 et seq. federal police regulations, 268 prohibition of, 269 commodities clause of act of 1906, 271 federal employers’ acts, 275 et seq. safety appliances acts, 277 federal anti-trust act, 279 et seq. federal control of corporations engaged in, 286 federal powers to charter manufacturing companies, 288 federal taxing powers, 289 federal control of navigable waters, 290 and common law, 446 Interstate Commerce Commis- sion establishment of, 267 rate-making power of, 550 liability 565 Interstate Relations full faith and credit, 76 extradition, 87 et seq. compacts between the States, 92 et seq. Intrinsic Evidence when resorted to, 34 Involuntary Servitude see “Slavery” Irrigation interstate regulation, 450 J Jeopardy, Double what constitutes, 316 Joint Resolution annexation of Texas and Ha- waii by, 125 Judgments federal, full faith and credit of, 77 Judicial Power distinguished from jurisdic- tion, 527 Judiciary, Federal constitutional provisions, 396 independence of, 420 et seq. power to issue writs of habeas corpus, 422 see “Courts” Juries in civil suits, 324 et seq. Jurisdiction distinguished from power, 527 Jury constitutional provisions re- garding, 312 et seq. Jury Trial in Hawaii, 146 judicial 566 Legal Tender constitutionality of, 228 et seq. Legislation process of, 199 et seq. Legislative Debates interpretative value of, 38 Legislative Interpretation force of, 33 Legislative Power delegation of, 547 et seg. to local governments, 547 administrative ordinances, 548 rate-making power, 549 Liberty defined, as protected by due process of law, 339 Limitations express, upon United States, 55 implied, 56 Liquor Laws and interstate commerce, 249 Local Governments delegation of legislative power to, 547 Local Option Laws constitutionality of, 61, note Lottery Tickets articles of commerce, 235 M Mails see ‘‘Postal System” Malice responsibility of administra- tive agents for acts com- mitted with, 545 of courts, 546 INDEX Mandamus may not be issued by State to federal authorities, 425 to reinstate in office, 490 when issued to administrative officials, 540 et seq. amenability of President to, 542 Manufacturing not included in commerce, 236 Manufacturing Companies power of United States to charter, 288 Maritime Jurisdiction see ‘‘ Admiralty” Marque and Reprisal letters of, 306 Marriage see “‘ Divorce”’ Martial Law defined, 508 a form of political power, 508. limitations upon, 509 does not abrogate civil law, 510 distinguished from military government, 511 in time of war, 512 Milligan Case, 514 Merger case doctrine of, 283 Military Governments in territories, 134 of foreign territory, 502 of domestic territory, 504 distinguished from martial law, 511 Military Law constitutional provisions, 491 defined, 493 INDEX articles of war, 493 obligations assumed by enlist- ment, 494 courts-martial, 495 powers of commander-in-chief, 498 declaration of war, 499 prosecution of war, 499 militia, 500 Military Occupation does not operate to annex ter- ritory, 134 Military Tribunals power of United States to vest exclusive jurisdiction in, 497 see ‘“Courts-Martial” Militia President’s power to call out, a political question not judicially reviewable, 436 organization and disciplining of, 500 in federal service, 501 to suppress disorder, 501 Milligan Case discussed, 514 Misprision of treason defined, 322 Modern Conditions application of constitution to, 41 Modus Vivendi how entered into, 162 Mortgages taxation of, 390 Motives of legislature will not be ex- amined by courts, 30 Movables taxation of, 390 567 N National Banks citizenship of, 413 Natural Laws force of, 40 Naturalization by statute, 104 force of Fourteenth Amend- ment, 104 is a federal power, 105 is a judicial act, 105 effect of annexation of terri- tories upon their inhabit- ants, 106 of Indians, 115 et seg. federal power exclusive, 294 Navigability test of, in admiralty jurisdic- tion, 462 Navigable Waters federal control of, 290 Navigation embraced in commerce, 233 see ‘ Admiralty” Neagle-Case discussed, 423 “Necessary and Proper” meaning of, 50 McCulloch v. Maryland, 51 Negotiation of Treaties how conducted, 157 Nomination to office, 487 Northern Securities Case doctrine of, 283 Oo Obligation of Contracts constitutional provision as to, 344 indirect impairment of, 345 568 general scope of, 356 e¢ seq. modes of enforcement may be changed, 357 limits the taxing power, 357 applies to contracts of the States, 357 marriage not a contract, 358 licenses, 358 charters of public corpora- tions, 359 private corporations, 360 charter grants strictly con- strued, 361 police power and, 361 tax exemptions, 362 construction of contracts, 363 force of state decisions, 365 Occupation military, does not annex terri- tory, 134 Officers state, suits against, 458 et seq. civil, who are, 467 responsibility for acts com- mitted by, 542 Offices public, not a property or con- tract right, 63 suits between claimants to, 64 federal, congressmen disquali- fied to hold, 183 defined, 485 nomination to, 487 creation of, 487 see ‘Appointing Power” Oleomargarine and interstate commerce, 250 Ordinances administrative, 551 penal, 552 Original Jurisdiction of Supreme Court, 399 INDEX may be granted to inferior courts, 400 Original Package doctrine of, 238 e¢ seg. P Panama Canal power of United States to con- struct, 287 Pardons power of President to grant, 483, 528 Patents protection of, 304 state taxation of, 372 Peddlers and interstate commerce, 256 Penal Ordinances power to issue, 552 Peonage defined, 320 Persons are subjects of commerce, 233 - state taxation of, in interstate commerce, 258 Petition right of, 328 Philippines presidential government in, 139 citizenship of inhabitants of, 152 Pilotage state authority over, 241 Piracy federal power to define and punish, 305 Places Purchased federal authority over, 132 Police Power of the States and interstate commerce, 242 et seq. INDEX includes matters of public con- venience, 246 defined, 341 may not be parted with, 342 not without limits, 342 and obligation of contracts, 361 martial law a form of, 508 Political Privileges no interstate comity in, 84 Political Questions defined, 434 existence and extent of sover- eignty, 435 Porto Rico annexation of, 138 Foraker act, 139 status of, 144, 152, 153 Postal Service fraud orders, 534, 540 Postal System federal control of, 299 exclusion of matter from the mails, 300 see ‘Fraud Orders” Powers delegated and reserved, distin- guished, 48 express and implied, 49 resulting, 52 Preamble interpretative value of, 39 President power of, in newly acquired territory, 139 negotiation of treaties by, 157 power of, to settle claims against foreign States, 162 power of, as commander-in- chief of army and navy to enter into military conven- tions, 163 569 power of, to extradite, 163 power of, to denounce treaties, 175 approval of, not required for constitutional amendments, 178 participation of, in law making, 203 power of, to declare or recog- nize existence of war, 306 election of, 407 et seq. appointment of electors, 471 Twelfth Amendment, 472 counting the votes for, 473 law of 1887, 473 succession, 475 power and duties of, 477 as administrative chief, 478 et seq. power of, to pardon, 483, 528 power of, to suspend writ of habeas corpus, 518 amenability of, to writs, 542 : obligation of, to enforce law, 542 Presidential Governments law governing, 135 Press freedom of, 326 Private International Law as applied to the States, 76 Privileges and Immunities federal, 69 Procedure rules of, in federal courts, 443 Production of commodities not included in commerce, 236 Prohibition of interstate commerce, 269 et seg. judicial 570 Proprietary Rights of the States, 84 Protective Tariffs constitutionality of, 219 Protocols force of, 160, 162 Public Purpose taxes must be for a, 214 Public Service Corporations regulation of rates of, 549 Pure Food Law provisions of, 273 Q Qualifications of members of Congress, 180 determination of, 181 Quorum in Congress, 199 R Races separation of, 355 Railways see “Interstate Commerce”’; “Public Service Corpora- tions’; “Rates”; “Taxa- tion” Rates of interstate carrier companies, state regulation of, 264 railway, regulation of, 278, 549 Receipts from interstate commerce, state taxation of, 260 Recognition of belligerency, 159 Records of Congress conclusiveness of, 200 INDEX Referendum constitutionality of, 61, 550 Reinstatement in office, mandamus, 490 Religious Freedom right of, 325 Removals . of suits from state to federal courts, 415 et seq. state restrictions upon, 428 et seq. from office, power to make, 489 injunction to prevent, 489 mandamus to reinstate, 490 Representatives qualifications required, 180 qualifications determined by the House, 181 Roberts Case, 182 expulsion of, 182 privileges of, 184 election of, 186 et seq. mode of apportionment, 188 federal control of elections of, 191 vacancies, how filled, 198 Reprieves power of President to grant, 483 Republican Form of Govern-. ment defined, 59 Resulting Powers defined, 52 Retroactive Legislation constitutionality of, 525 Revenue Laws effect of treaties upon, 167 Revenue Measures in Congress, 202 Roberts, Brigham H. INDEX 571 excluded from House of Repre- sentatives, 182 Roosevelt doctrine of, as to implied fed- eral powers, 44 Rules of House and Senate constitutional force of, 201 S Safety Appliances Acts federal, 277 Salaries taxation of, 372 Sales included in commerce, 237 Searches and Seizures discussed, 300, 320 Securities, Public taxation of, 373 Self-Incrimination defined, 318 Senate participation of, in treaty- making power, 156 power of, to amend treaties, 159 international agreements not requiring submission to, 161 vacancies in, 197 Senators qualifications required, 180 qualifications determined by the Senate, 181 expulsion of, 182 privileges of, 184 election of, 195 e¢ seq. Separation of Powe principle of, S#2= ~ a \ in States, 521 in federal government, 522 not complete, 523 general principle governing, 524 declaratory and_ retroactive legislation, 525 legislative control of judiciary, 525 contempts, 577 pardoning power, 528 performance of administrative acts by courts, 530 judicial review of administra- tive determinations, 531 judicial powers and adminis- trative agents, 531 conclusiveness of administra- tive determinations, 532 fraud orders, 534 Chinese exclusion cases, 534 arbitrary administrative dis- cretion, 538 mandamus, 541 official responsibility for ultra vires acts, 544 for malice, 545 Separation of Races, 355° Service’ constructive, 79 in divorce proceedings, 80 et seq. Sherman Anti-Trust Act see ‘Anti-Trust Act”; ‘“In- terstate Commerce”’ Slaughter House Cases doctrines of, 67 Slavery constitutional provision, 329 see ‘Thirteenth Amend- ment” Slaves importation of, 308 Sovereignty defined, 2 572 unity and indivisibility, 4, 7 territorial, 95 existence and extent of, a po- litical question, 435 Special Assessments authority for, 381 distinguished from taxes, 383 constitutional requirements of, 384 et seq. in excess of benefits, 385 Speech freedom of, of congressmen, 185 Speech and Press freedom of, 326 Speedy Trial right to, 316 Spirit of the Constitution interpretative force of, 41 Standard Oil Case doctrine of, 285 Stare Decisis force and doctrine of, in field * of constitutional law, 45 State defined, 1 territorial jurisdiction of, 95 State Courts writs of error to, from Su- preme Court, 403 removal of suits into federal ' courts, 415 et seq. concurrent jurisdiction of, 416 may not issue mandamus, in- junctions, or certiorari to federal courts, 425 injunctions to, from federal courts, 426 Congress may not confer ju- risdiction upon, 432 State Governments de jure, 62 INDEX State Law in federal courts, 441 et seq. when construction not settled, 444 States autonomy of, 58 governments of, when repub- lican in form, 59 de jure governments of, 62 offices of, 64 federal supervision of activ- ities of, 65 et seq. police powers of, 68 prohibitions of Fourteenth Amendment directed against acts of, 74 independent inter se, 76 have no extraterritorial pow-- ers, 78 comity clause, 83 et seq. political privileges in, 84 proprietary rights of, 84 control of foreign corporations, 85 extradition by, 87 et seq. compacts between, 92 et seq. compacts with the United States, 93 equality of, 93 citizenship in, 101 admission of, to the Union, 117 reserved rights of, and treaties, 170 et seq. police powers of, and inter- state commerce, 242 et seq. laws of, in federal courts, 441 suits between and to which a party, 449 et seq. civil suits of, against individ- uals, 451 INDEX 573 suits between, and the United States, 452 suits between, and foreign States or their citizens, 453 suability of, 455 et seq. suits against officers of, 458 suits to recover property held by, 459 administrative decentraliza- tion in, 481 suppression of domestic dis- order in, 502 States’ Rights doctrine of, 22 Stock taxation of, 392 Stock Yards and interstate commerce, 281 Strict Construction, 39 see ‘‘States’ Rights” Suability of States, 455 et seq. see ‘Eleventh Amendment”’; “States” Succession presidential, 475 act of 1792, 476 Suffrage not a federal right, 72 educational qualifications upon, 187 qualifications upon, 189 not a necessary incident of federal.citizenship, 189 disfranchisement of, in the Southern States, 194 see “Elections” Sugar tax on manufacture of, 224 Sugar Trust Case doctrine of, 280 Supreme Court influence of, in developing na- tional sovereignty, 19 et seg. review of decisions of state courts, 21 organization of, 397 original jurisdiction of, 399 appellate jurisdiction of, 400 appeals from district courts, 402 , from circuit courts of appeal, 402 writs of error to state courts, 403 Suspension of sentences, power of courts to grant, 484 of writ of habeas corpus, law governing, 514 et seq. T Tangible Personalty taxation of, 388 Tariff constitutionality of protective, 219 Taxation federal powers of, 208 e¢ seg. power of, distinguished from eminent domain, 209 extent of power of, 209 use of power of, for regulative purposes, 210 limitations upon federal power of, 213 due process of law in, 214 equality in, 216 uniformity of, 217 of inheritances, 218 74 INDEX due process of law and, 226 state, of interstate commerce, 242, 253 et seq. of drummers, 255 of peddlers, 256 of articles of commerce, 256 of goods in transit, 257 of persons in transit, 258 of property of interstate car- riers, 259 unit of use rule, 260 of receipts from interstate commerce, 260 federal power of, with refer- ence to interstate commerce, 289 limitations upon States’ power of, 368 et seq. of federal governmental agencies, 369 of property of, 370 of franchises, 372, 388, 394 of patent rights, 372 of salaries, 372 of federal property, 373 of federal securities, 373 of shares of stock, 375 of bequests, 376 of state agencies, 377 of state documents, 380 property must be within the jurisdiction, 387 of tangible personal property, 388 of property within several ju- risdictions, 388 of capital stock, 389 of movables, 390 of intangible personalty, 390 of bonds, 390 of stock, 392 of credits, 392 double taxation, 395 see “Special Assessments”’ Taxes defined, 208 levying of, a legislative act, 208 assessment of, administrative, 208 duties, 212 imposts, 212 excises, 213 must be for a public purpose, 214 protective tariffs, 219 export duties, 221 direct, 222 on carriages, 222 on insurance receipts, 222 on circulating notes, 222 on incomes, 223 on sales at exchanges, 224 on tobacco, 224 on manufacturing of sugar, 224 federal corporation, 225 exemptions, 362 Technical Terms how construed, 34 Telegraph Companies state taxation of, 253, 260 Territorial Sovereignty defined, 95 Territories full faith and credit clause not applicable to, 77 inhabitants of, not citizens of a State, 102 power of United States to ac- quire, 120 et seq. annexation of Hawaii, 125 power to govern, 127 governments in, are congres- sional, 128 INDEX 575 military and presidential gov- ernments in, 134 et seq. not annexed by conquest, 134 presidential governments in, 135 annexation by treaty, 137 powers of President in, 139 incorporated and unincorpo- rated, 141 et seq. organized and unorganized, 142 slavery in, 148 citizenship of inhabitants of, 150 et seq. commerce with, 292 see ‘Hawaii’; “Insular Cases”; ‘Philippines”’; “Porto Rico” Texas admission of, to the Union, 118, 125 Thirteenth Amendment application of, to unincorpo- rated territories, 148 Tobacco taxes on, 224 Trade-marks federal power over, 304 Trains, Interstate state regulation of, 244 Transportation essential to commerce, 231 Treason defined, 322 Treaties provision of, annexing terri- tories, 150 negotiation of, 157 enforcement of, 165 ef seq. auxiliary legislation, 165 effect of, on statutes, 166 effect of, on revenue laws, 167 denunciation of, 175 construction of, 175 existence of, a political ques- tion, 435 Treaty annexation by, of territory, 137 et seq. Treaty Power federal authority exclusive, 154 federal power comprehensive, 155 manner of exercise of, 156 power of Senate to amend treaties, 159 international agreements not submitted to the Senate, 161 constitutional extent of, 169 et seq. not expressly limited, 169 reserved rights of the States, 170 implied limitations, 173 may not incorporate territory into the United States, 175, note. Trial by Jury constitutional provisions, 313 et seq. Twelfth Amendment necessity for, 472 U Ultra Vires Acts responsibility of officials for, 544 Unconstitutional Legislation rules governing determination of, 29 et seq. see ‘“‘Construction” ; “Courts” 576 Uniformity of Taxation what constitutes, 217 Unincorporated Territories status of, 141 e¢ seg. see ‘‘Insular Cases’”’ Unit of Use Rule in taxation, 260, 389 United States suits between, and States of the Union, 452 suits against, 459 et seq. Unwritten Constitutional Laws force of, 40 Vv Vacancies in Senate, how filled, 197 INDEX Veto Power of the President, 204, 542 WwW Waiver of constitutional guarantees, 314 War declaration of, 306, 498 existence of, a political ques- tion, 435 7 prosecution of, 499 Weights and Measures constitutional provision, 298 Wilson, James doctrine of, as to implied fed- eral powers, 44 Wilson Law provisions of, 249 APPENDIX ARTICLES OF CONFEDERATION ARTICLE I The style of this confederacy shall be, “The United States of America.” ARTICLE II Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this_ confederation expressly delegated to the United States in Con- gress assembled. ARTICLE III The said States hereby severally enter into a firm league of. friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to, or at- : tacks made upon them, or any of them, on account of religion, . sovereignty, trade, or any other pretense whatever. ARTICLE IV The better to secure and perpetuate mutual friendship and in- . tercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privi- , leges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privi-: leges of trade and commerce, subject to the same duties, imposi- tions, and restrictions, as the inhabitants thereof respectively,. provided that such restrictions shall not extend so far as to pre-: vent the removal of property imported into any State to any other State, of which the owner is an inhabitant; provided, also, that no imposition, duties, or restriction shall be laid by any State on the property of the United States, or either of them. If any person guilty of, or charged with, treason, felony, or other high misdemeanor, in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of | the governor, or executive power, of the State from which he fled, | 4 ARTICLES OF CONFEDERATION be delivered up and removed to the State having jurisdiction of his offense. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and mag- istrates of every other State. ARTICLE V For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the Legislature of each State shall direct, to meet in Congress on the first Monday in November in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year. No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of hold- ing any office under the United States, for which he, or another for his benefit, receives any salary, fees, or emoluments of any kind. Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States. , In determining questions in the United States, in Congress as- sembled, each State shall have one vote. Freedom of speech and debate in Congress: shall not be im- peached or questioned in any court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from and attendance on Congress, except for treason, felony, or breach of the peace. ARTICLE VI No State, without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty, with, any king, prince, or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind ARTICLES OF CONFEDERATION 5 whatever, from any king, prince, or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confedera- tion, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into and how long it shall continue. No State shall lay any imposts or duties which may interfere with any stipulations in treaties entered into by the United States in Congress assembled, with any king, prince, or State, in pursuance of any treaties already proposed by Congress to the courts of France and Spain. No vessel of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States, in Congress assembled, for the defense of such State or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only as, in the judg- ment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide, and have constantly ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be act- ually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States, in Congress assembled, can be con- sulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States, in Congress assembled, and then only against the kingdom or State, and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States, in Con- gress assembled, unless such State be infested by pirates, in which ease vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled, shall determine otherwise. 6 ARTICLES OF CONFEDERATION ARTICLE VII When land forces are raised by any State for the common de- fense, all officers of, or under, the rank of colonel shall be ap- - pointed by the Legislature of each State, respectively, by whom a such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first ‘made the appointment. ARTICLE VIII All charges of war, and all other expenses that shall be in- ‘ eurred for the common defense, or general welfare, and allowed _ by the United States, in Congress assembled, shall be defrayed ‘out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State granted to, or surveyed, for any person, as such land and the buildings and improvements thereon shall be estimated accord- ing to such mode as the United States, in Congress assembled, shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislature of the several : States, within the time agreed upon by the United States, in Con- gress assembled. ARTICLE IX The United States, in Congress assembled, shall have the sole ‘ and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—entering into treaties and alliances; pro- vided that no treaty of commerce shall be made whereby the legis- lative power of the respective States shall be restrained from im- ' posing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting exportation or importation of any species of goods, or commodities, whatsoever—of establish- ing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided : ‘or appropriated—of granting letters of marque and reprisal in ARTICLES OF CONFEDERATION a times of peace—appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of cap- tures; provided that no member of Congress shall be appointed a judge of any of the said courts. The United States, in Congress assembled, shall also be the last resort, on appeal, in all disputes and differences now subsisting or that hereafter may arise between two or more States concern- ing boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: whenever the legislative or executive authority, or lawful agent, of any State in controversy with another shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in contro- versy, and a day assigned for the appearance of the parties, by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but if they can not agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall di- rect, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges, who shall hear the cause, shall agree in the determination; and if ‘either party shall neglect to attend at the day appointed, with- out showing reasons which Congress shall judge sufficient, or, be- ing present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear, or defend their claim or cause, the court shall, nevertheless, proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being, in either case, transmitted 8 ARTICLES OF CONFEDERATION to Congress, and lodged among the acts of Congress for the se- curity of the parties concerned; provided that every commis- sioner, before he sits in judgment, shall take an oath, to be ad- ‘ministered by one of the judges of the Supreme or Superior Court of the State, where the cause shall be tried, “well and truly to “hear-and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward”: provided, also, that no State shall be deprived of territory for the “benefit of the United States. All controversies concerning the private right of soil, claimed under different grants of two or more States, whose jurisdiction as they may respect such lands, and the States which passed such grants are adjusted, the said grants, or either of them, being at ‘the same time claimed to have originated antecedent to such set- tlement or jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for decid- ing disputes respecting territorial jurisdiction between different States. The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the re- spective States—fixing the standard of weights and measures throughout the United States—regulating the trade, and manag- ing all affairs with the Indians not members of any of the States; provided that the legislative right of any State within its own limits be not infringed or violated—establishing and regulating post-offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office—appointing all officers of the land forces in the service of the United States, excepting regimental officers—appointing all ‘the officers-of the naval forces, and commissioning all officers whatever in the service of the United States—making rules for the government, and regulation of the said land and naval forces, and directing their operations. The United States, in Congress assembled, shall have authority to appoint a committee to sit in the recess of Congress, to be denominated “a Committee of the States,” and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general ARTICLES OF CONFEDERATION 9 affairs of the United States under their direction—to appoint one of their number to preside; provided that no person be allowed - to serve in the office of president more than one year in any term of three years—to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses—to borrow money or emit bills on the credit of the United States, transmit- ting every half-year to the respective States an account of the sums of money so borrowed or emitted—to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the Legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them, in a soldier-like manner, at the expense of the United States; and the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled; but if the United States, in Congress assembled, shall, on considera- tion of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the Legislature of such State shall judge that such extra number can not safely be spared out of the same; in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared. And the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled. The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and ex- penses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the num- ber of land or sea forces to be raised, nor appoint a commander- jn-chief of the army or navy, unless nine States assent to the 10 ARTICLES. OF CONFEDERATION same; nor shall a question on any other point, except for ad- journing from day to day, be determined unless by the votes of a majority of the United States, in Congress assembled. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months; and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as, in their judgment, require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the journal when it is desired by any delegate; and the delegates of a State, or any of: them, at his or their request, shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the Legislatures of the several States. ARTICLE X The committee of the States, or any nine of them, shall be au- thorized to execute, in the recess of Congress, such of the powers of Congress as the United States, in Congress assembled, by the consent of nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the articles of con- federation, the voice of nine States in the Congress of the United States assembled is requisite. ARTICLE XI Canada, acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and en- titled to, all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States. ARTICLE XII All bills of ‘credit emitted, moneys borrowed, and debts con- tracted, by or under the authority of Congress, before the assem- bling of the United States, in pursuance of the present confedera- tion, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged, ARTICLES OF CONFEDERATION. 11 ARTICLE XIIT Every State shall abide by the decision of the United States, in Congress assembled, on all questions which, by this confedera- tion, are submitted to them. And the articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislature of every State. CONSTITUTION OF THE UNITED STATES PREAMBLE WE, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, pro- vide for the common defence, 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 LEGISLATIVE DEPARTMENT Section 1. Division into Two Houses * 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. House of Representatives 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 at- tained 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, ac- cording to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within ‘three years after the first meeting of the Congress of the United States, aid within every subsequent term of ten years, in such manner as they shai. -5 'aw direct. The number of Rese sentatives shall not exceed one for every” thar t>-thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three; Massachusetts, eight; Rhode Island and ‘Providence Plantations, one; Connecticut, five; New York, sia; Q 14 CONSTITUTION OF THE UNITED STATES New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, siz; Virginia, ten; North Carolina, five; South Carolina, five; and Georgia, three. 4, When vacancies happen in the representation from any State, ‘the executive authority thereof shall issue writs of election to ‘fill such vacancies. 5. The House of Representatives shall choose their Speaker and ‘ other officers, and shall have the sole power of impeachment. Section 3. Senate 1. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote. , 2. Immediately after they shall be assembled in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; and of the third class at the ex- _Piration of the sixth year; so that one third may be chosen every second year; and if vacancies happen, by resignation or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments, until the next meeting of the Legislature, which shall then fill such vacancies. a* 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 os 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 tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. 6. The Senate shall have the sole power to o try all “impeach- ments; when sitting for that purpose, they- shall be on oath~or affirmation. When the President ¢ t Gf the United States is tried, the Chief Juss shall preside; and no person shall be convicted with- out the concurrence of two-thirds of the members present. 3 Ts 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 CONSTITUTION OF THE UNITED STATES 15 the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment, according to law. - - Section 4. Elections and Meetings of Congress é 1. The times, places, and manner of holding elections for Sena- tors 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 December, unless they shall, by law, appoint a different day. we Section 5. Powers and Duties of the Houses 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; but a smaller number may.ad- journ from day to day, and may be authorized to compel the at- tendance of absent members, in such manner, and under -such pen- alties, 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. ; 8. Each House shall keep a journal of its ae and tom time to time publish the same, excepting such parts as-may, in their judgment, require secrecy; and the yeas and nays of the members of either House, on any question; shall, at the desire of one-fifth of those present, be entered on the journal. 4. Neither House, during the session of Congress, shall, swithiont the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. Section 6. Privileges of and Prohibitions upon Members 1. The Senators and Representatives shall receive 4 compensa- tion for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall, in all cases except treason, felony, and breach of the peace, be privileged -fromargest during their attendance at the session of their respective Houses, and in going ‘to and returning from the same; and for any speech 16 CONSTITUTION OF THE UNITED STATES 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 : Mo person holding any office under the United States shall be a member of either House during his continuance in office. Section 7. Revenue Bills: President’s Veto 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 ob- jections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and, if approved by two-thirds of that House, it shall become a law. But, in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and ‘against the bills 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 pre- sented: to him, the same shall be a Jaw, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return, in which ease 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 (except on a question of adjournment), shall be presented to the President .of the United States, and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, accord- ing to the rules and limitations prescribed ir the case of a, bill. CONSTITUTION OF THE UNITED STATES 1% Section 8. Legislative Powers of Congress The Congress shall have power: 1. To lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general welfare of the United States; but all duties, 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 a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States: ‘ 5. To coin money; to 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. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations: 1l. 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 training the militia according to the discipline prescribed by Congress: 18 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, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the Legis- Jature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings: And "18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers ‘vested by this Constitution in the government of the United States, or in any department or officer thereof. Section 9. Prohibitions upon the United States ‘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 « tax or duty may be imposed on such ‘importation, not exceeding ten dollars for each person. 2. The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public ‘safety may require it. 3. No bill of attainder or 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. No preference shall be given, by any regulation of com- merce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, ‘clear, or pay duties in another. 6. No money shall be drawn from the treasury, but in con- sequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money ‘shall be published from time to time. _ 7. No title of nobility shall be granted by the United States; “and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State. CONSTITUTION OF THE UNITED STATES 19 Section 10. Prohibitions upon the States: 1. No State shall enter into any treaty, alliance, or confedera- tion; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. 2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be ab- solutely 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 com trol of the Congress. No State shall, without the consent of Con- gress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with « foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. ARTICLE II ExectTIvE DEPARTMENT: THE PRESIDENT AND VICE-PRESIDENT Section 1. Term: Election : Qualifications: Salary: Oath of Office 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows: 2. Each State shall appoint, in such manner as the 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 following clause has been superseded by Article XII. of the Amendments : 3. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voied for, and of the number of votes for each, which list they shall sign and certify, and transmit, sealed, 20 CONSTITUTION OF THE UNITED STATES to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such num- ber be a majority of the whole number of Electors appointed; and if there be more than one who have such majority, and have an equa] number of votes, then the House of Representatives 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 Presi- dent, 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 iwo-thirds of the States, and a majority of the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest num- ber of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them, by ballot, the Vice-President. 4. The Congress may determine the time of choosing the Elec- tors, and the day on which they shall give their votes, which day shall be the same throughout the United States. 5. No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this 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. 6. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may, by law, provide for the case of removal, death, Tesignation, 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 Presi- dent shall be elected. 7. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive, within that period, any other emolument from ‘the United States, or any of them. 8. Betore he enter on the execution of his office, he shall take the . following oath or affirmation: CONSTITUTION OF THE UNITED STATES 21 “T 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. President’s Executive Powers 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 offences 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 established by law; but the Congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the Heads of Departments. 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. President’s Executive Powers (continued) 1. He shall from time to time give to the Congress informa- tion of the state of the Union; and recommend to their considera- tion such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully execu- ted; and shall commission all the officers of the United States, 22 CONSTITUTION OF THE UNITED STATES Section 4. Impeachment 1. The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and mis- demeanors. ARTICLE III JUDICIAL DEPARTMENT Section 1. Courts: Terms of Office 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 continu-. ance in office. : Section 2. Jurisdiction 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 eases affecting ambassadors, other public ministers, and con-- suls; to all cases of admiralty and maritime jurisdiction; to con- troversies to which the United States shall be a party, to con- troversies between two or more States; between a State and citizens of another State; between citizens of different States; be- tween citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects. 2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdic- tion, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. 3. The trial of all crimes, except in cases of impeachment, 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, CONSTITUTION OF THE UNITED STATES 23 Section 3. Treason 1. Treason against the United States shall consist only in levy- : ing war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. 2. 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 RELATIONS OF STATES Section 1. Public Records 1. Full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. : Section 2. Rights in One State of Citizens of Another 1. The citizens of each State shall be entitled to all the 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. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but: shall be delivered up on claim of the party to whom such service or labor may be due. Section 3. New States: Territories 1. New States may be admitted by the Congress into this Union; but no new State shall be furmed 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 24 CONSTITUTION OF THE UNITED STATES consent of the Legislatures of the States concerned, as well as of the Congress. 2. The Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Section 4. Protection afforded to States by the Nation 1. The United States shall guarantee to every State in this Union a republican form of government; and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence. ARTICLE V AMENDMENT 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 caJl 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 sec- tion of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI NationaL Dests: SUPREMACY oF NATIONAL Law: OaTH 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 CONSTITUTION OF THE UNITED STATES 25 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 Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitu- tion; but no religious test shall ever be required as a qualifica- tion to any office or public trust under the United States. ARTICLE VII ESTABLISHMENT OF CONSTITUTION The ratification of the conventions of nine States shall be suffi- cient for the establishment of this Constitution between the States so ratifying the same. [Constitution ratified by States, 1787-1790.] Amendments ARTICLE I FREEDOM oF RELIGION, OF SPEECH, AND OF THE PRESS: RIGHT OF PETITION 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. [Adopted 1791.] ARTICLE II RieHT TO KEEP ARMS 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. {Adopted 1791.] - 26 CONSTITUTION OF THE UNITED STATES ARTICLE III QuUARTERING oF SOLDIERS IN PrivaTE Houses 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. [Adopted 1791.] ARTICLE IV SEARCH WARRANTS 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 warrant shall issue but upon prob- able cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. [Adopted 1791.] ARTICLE V CRIMINAL PROCEEDINGS No person shall be held to answer for a capital or otherwise in- famous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb, nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensa- tion. [Adopted 1791.] ARTICLE VI CRIMINAL PROCEEDINGS 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 CONSTITUTION OF THE UNITED STATES 2% process for obtaining witnesses in his favor; and to have the as- sistance of counsel for his defence. [Adopted 1791.] ARTICLE VII JuRY TRIAL IN CIVIL CASES In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre- served, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. [Adopted 1791.] ARTICLE VIII EXcESSIVE PUNISHMENTS Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [Adopted 1791.] ARTICLE IX RIeHTs OF PEOPLE NOT NAMED The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. [Adopted 1791.] ARTICLE X POWERS RESERVED TO STATES The powers not delegated to the United States, by the Consti- tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Adopted 1791.] ARTICLE XI SUITS AGAINST STATES 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. [Adopted 1798.] 28 CONSTITUTION OF THE UNITED STATES ARTICLE XII ELECTION OF PRESIDENT AND VICE-PRESIDENT 1. The Electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom at least shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and trans- mit, sealed, to the seat of the government of the United States, directed to the President of the Senate;—the President of the Senate shall, in the presence of the Senate and House of Represen- tatives, 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 Representatives 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 Representa- tives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next fol- lowing, then the Vice-President shall act as President, as in the ‘ease of the death or other constitutional disability of the President. 2. The person having the greatest number of votes as Vice-Pres- ident shall be the Vice-President, if such number be a majority of the whole number of Electors appointed; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the 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. 3. But no person constitutionally ineligible to the office of Pres- ident shall be eligible to that of Vice-President of the United States. [Adopted 1804.] CONSTITUTION OF THE UNITED STATES 29 ARTICLE XIII SLAVERY Section 1. Abolition of Slavery Neither slavery nor involuntary servitude, except as a punish- ment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Power of Congress . Congress shall have power to enforce this article by appropriate legislation. [Adopted 1865.] ARTICLE XIV Civin RIGHTS: APPORTIONMENT oF REPRESENTATIVES: POLITICAL DISABILITIES: PuBLIC DEBT Section 1. Civil Rights All persons born or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens-of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Apportionment of Representatives 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 « 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 citi- zens twenty-one years of age in such State, 30 CONSTITUTION OF THE UNITED STATES Section 3. Political Disabilities No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an of- ficer of the United States, or as a member of any State Legisla- ture, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in in- surrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two- thirds of each House, remove such disability. Section 4. Public Debt The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for loss or emancipation of any slave; but all such debts, obliga- tions, and claims shall be held illegal and void. Section 5. Power of Congress The Congress shall have power to enforce, by appropriate legis- lation, the provisions of this article. [Adopted 1868.] ARTICLE XV RicHT oF SUFFRAGE Section 1. Right of Negro to Vote 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 ac- count of race, color. or previous condition of servitude. Section 2. Power of Congress The Congress shall have power to enforce this article by appro- priate legislation. [Adopted 1870.] ah i mut BAR ir hy i ae i ; = ae cS F jaan airy Anon aa iy a =. oes : See t ey p = i he Se mk rN \ eh SRST or 0 mt TEE