3^ (ftonuU Itotatsttg §5fa«g 8817 Cornell University Library JK254 .C44 ififlP olin Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030455541 SYNOPSIS OP LECTURES ON THE CONSTITUTION OF THE UNITED STATES • Before the School of Law of Cornell University FIRST COURSE. .EIGHT LECTURES. The General Conception, Theory and Frame-work of the Constitution, including especially the Relations of the States to the United States, and the Nature of the Resulting Union and Government. II The Legislative Department of the Government, or the Powers of the Congress and the Separate Power of each House of Congress. A*i»?*^ LECTURES. Subject — The Constitution of the United States, con- sidered in two courses of lectures, and under four princi- pal heads. First : The General Conception, Theory and Framework of the Constitution, including especially the Relations of the States to the United States, and the Nature of the Resulting Union and Government. Second : The Legislative Department of the Govern- ment, or The Powers of Congress, and the separate Powers of each House. Third: The Executive Department, its Constitution, Powers and Limitations. Fourth : The Judicial Department, its place, structure, powers and jurisdiction. The first two of these titles will occupy the present course of lectures, (1) The Relations of the States to the United States and the Nature of the Resulting Union and Government ; and (2) The Legislative Department ; or The Powers of Congress and the Separate Powers of each House of Congress. LECTURE I. American constitutional law, a broad theme ; but con- stantly widening. Profound effect of the Civil War upon our Constitu- tional Law ; Constitution expounded in new lights, and applied in new directions. Whole fields of Constitutional law developed since Marshall and Taney, Story and Kent. Remark of Mr. Bagehot on difficulty in sketching a living Constitution ; difficulty being that the object is in contant cLange ; this remark, originally applied to the JJnglish Constitution, true to a large extent of our own written Constitution. These lectures permit only brief allusions to general topics connected with Constitutional law. Singular inaccuracy of Gladstone's dictum that the American Constitution was " struck off at a given time by the brain and purpose of man." Refutation of this fallacy by Prof. Alexander Johnston ; only one exception to the statement that our Constitution is the strict result of our history and experience ; that ex- ception — the mode of election of President and Vice-Presi- dent, embodied in the second and third sections of Article Two, of the original Constitution— is really a striking example of popular will practically overriding Constitu- tional provisions. In general, the making of our Constitution was merely the orderly disposition and correct statement of principles and methods familiar to the American people as colonies, and under the Confederation— " a perfect expression of the institutional methods of our people." This does not lessen, but rather increases, the just fame of the authors of our Constitution ; best results of juris- SYF0P8I8 OF LECTURES. 5 prudence and. political life of any people are institutional and historic ; striking remark of Mr. Lowell upon this point. The great overshadowing idea of our Government. — a Federal Union, or " an indestructible Union of indestruct- ible States," — was not a new conception ; only the means used were new. Even the most felicitous feature of the whole Constitu- tion, — the express erection of judicial power into a co- ordinate branch of the Government, — which Sir Henry Maine calls " a virtually unique creation of the founders of the Constitution," was only the application to a National government of a method already familiar to the States be- fore 1787 ; in 1787, eleven of the thirteen States had writ- ten Constitutions, and courts were empowered to pass upon questions of conformity of legislative enactments or execu- tive acts, to the fundamental Constitution ; case of lYevett v. Weldon, Difference between English and American Constitutional law. What is the English Constitution? Where can it be found ? By these tests there is nothing properly to be called the English Constitution ; illustrations of the diffi- culty of locating or describing the English Constitution ; Mr. Dicey' s distinction between the law of the Constitu- tion and its conventions ; still, this author concludes that ''the English jurist may search the statute book from beginning to end, but he will find no enactment which purports to give the articles of the Constitution ; he will not find any test by which to discriminate laws which are constitutional or fundamental from ordinary enact- ments." De Tocqueville's remark— "The English Constitution has no real existence ;" still, in another sense, the exist- ence of the English Constitution is as real and controlling as that of our own ; Sir Henry Maine's remark, that our Constitution " is in reality a version of the British Consti- tution, as it must have presented itself to an observer in the second half of the last century." 6 SYNOPSIS OF LECTURES. Definition or description of the English Constitution, in view of the foregoing remarks : Principal written documents which contain essentials of the British Constitution as given by Blackstone ; these omit the whole feature of Parliamentary government — the subject of Mr. Bagehot's remarkable work, " The English Constitution." Contrast between all this and our Constitution ; our Con- stitution is our law ; no part of it is convention, prescrip- tion or understanding. Materials and sources of our Constitutional Law ; (a) the Constitution itself ; (5) judicial judgments and opin- ions of courts, especially of the Supreme Court of the United States ; (c) commentaries and treatises presenting its history and practice ; (d) history of the times, events, state of society, etc., which preceded and led to its adop- tion. Final arbiter, the Supreme Court of the United States. Distinction between constitutional interpretation and constitutional construction : Illustration of this distinction: (a) "due process of law," as the phrase appears in the XlVth Amendment of the Constitution : The two processes of interpretation and construction cover nearly the whole work of courts, and are the essen- tial methods of formulating Constitutional Law as distin- guished from the Constitution itself ; wonderful brevity of our Constitution. Sources and materials for study of our Constitution : (a) debates and proceedings in Convention of 1787; (&) debates and proceedings in the State Conventions upon the adoption of the Constitution, embraced in Elliott's debates ; (c) the Madison papers ; id) The Federalist ; (e) comment- aries of Story ; (/) lectures of Kent ; (g) Kawle's and Tucker's commentaries ; (h) histories of the Constitution by Curtis and Bancroft ; (i) above all, the Eeports of the United States Supreme Court. These are only the chief sources ; other sources are legal S7JT0PSI8 OF LECTURES. 7 treatises, historical works, collections of State papers, col- lections of historical societies and private individuals, in Europe and America. Special mention made of the work on Constitutional Law, by the late Professor Norton . Distinction between jurisprudence and law. Definition of constitutional jurisprudence ; and of Con- stitutional Law. Great fact of the distinction of strict and liberal construc- tion ; general causes of this distinction ; its effects in our history. Both principles of construction admissible ; illustrations of their application. Although the separate ideas of our Constitution and Gov- ernment were not new in 1787 to the habits of the American people, still the Union and Government which was then or- dained was no less difficult and remarkable. Remark of Mr. Bagehot that " Success in government is due more to the civil instincts and capacity of our race than to any theoretical harmony or perfection of the rules and formulae of governmental conduct." Capital thought and purpose of our Constitution, — the formation of a National government out of several sep- arate States, without destroying the separate life of the States. Remarks of Chief Justice Chase in Texas v. White, 7 Wall., 700. The Relations of the States to the United States. By what means — under what conditions — by what con- stitutional provisions, are the States bound to. the Nation % Treated under four titles : First. — The rights of the States in the Union derived from the Constitution, and their reserved rights under the Con- stitution. 8 8YN0P8IS OF LECTURES. Second.— The obligations of the States under the Con- stitution. Third.— The prohibitions of the States under the Con- stitution. .Fourth.— The Union ; its nature, and the mutual general relations of States and Nation, under the Constitution. Singular fact that those holding opposing views of the nature of the Union, have used common descriptive name — The Federal Union. Strict meaning of Federal ; meaning as popularly used in our political history. Characteristics of the States before the adoption of the Constitution ; their powers ; their sovereignty. First great provisions securing the rights of the States, (a) the reserving Articles— IX th and Xth Amendments ; which Judge Cooley says are for practical purposes "parts of the original Constitution." Article X.— The enumeration in the Constitution of cer- tain rights shall not be construed to deny or disparage others retained by the people. Article XI.— The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." These provisions leave with the States all the powers which they possessed, prior to 1787, and which were not conferred by the Constitution on the general gov- ernment. This result occasions one fundamental rule of con- stitutional construction, which distinguishes the United States Constitution from the Constitutions of the several states. This rule is, that in determining the powers of the United States or its government, we must inquire whether the powers in question fall within the terms of the express grants of the Constitution ; while on the other hand, if the question is what are the powers of a State or its gov- ernment, we must inquire whether the powers in question SYWOPSTS OF LECTURES. 9 are forbidden to the State or its government by the State Constitution. In other -words, the government of the United States is a government of strictly limited and enumerated powers ; whatever is not given to it by the Constitution is denied to it. The State governments, on the other hand, are sover- eign, plenary governments wbose powers are theoretically unlimited, except by the State constitutions, and State governments may act freely except in those matters which are prohibited to them by the State constitutions or by the Constitution of the United States. Cases of Thorp v. Rutland and Burlington Railroad Company, 27 Vt. 140. Wynehamer v. People, 13 N. Y. 378. Judge Cooley's remarks upon this point, in his "Con- stitutional Limitations". Under our Constitution, the States have all powers and rights not expressly relinquished by the grants of power to the United States. Important distinction of express and implied powers. This distinction inheres in the nature of language and of things ; specially true of constitutions and funda- mental laws, where full specification is impossible ; necessity of implied powers ; illustrations of this ne- cessity. Danger involved in the doctrine of implied powers ; fruitful source of political divisions and contentions in our history. Our Constitution, in express terms, grants the whole range of incidental or implied powers ;— in Section 8, Article I ;— "The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof." Leading and authoritative exposition of this doctrine 10 SYNOPSIS OF LECTURES. by Chief Justice Marshall in the case of McCullough v. Maryland, 4 Wheat. 316, decided in 1819 ; statement of this case ; circumstances giving it special authority ; doc- trines laid down in this case. Necessity of keeping in mind the great canon of con- struction here laid down— "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, bnt consist with the letter and spirit of the Constitution, are constitutional." Article I, Section II, providing that "each State shall have at least one Representative" in Congress, the whole number of representatives to be apportioned among the several States according to their respective numbers ; the same section also requiring the enumeration of population for this purpose, " within every term of ten years." Value of this provision securing at least one representa- tive to each State ; a provision which has heretofore secured, and still secures, to several States a representation to which they would not otherwise be entitled on the basis of population. Section III of the same Article, providing that 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 ;" and follow- ing this in Article 5, the provision in the form of a proviso to the article, prescribing the manner of amending the Constitution, that "no State without its consent shall be deprived of its equal suffrage in the Senate." By Section 3 of Article I, the minimum of population for one Representative was fixed at thirty thousand. At the date of the first Federal census, 1790, Delaware had a population of a little over 59,000 ; in 1860 it had a little over 112,000, but the ratio of representation had then arisen from 30,000 to 127,316. Thus in 1860, Delaware SYNOPSIS OF LECTURES. I j s would not have been entitled to any representation in the House of Representatives, but for this provision of the Constitution. The same has at times been true of the State of Colorado and Oregon. This provision and the provision giving equal represen- tation to all the States in the Senate were concessions made to the smaller States — one of the most difficult matters which confronted the Convention of 1787. Connected with the same topic is the provision of Sec- tion IV, Article I. " The times, places, and manner of holding elections for Senators and Representatives shall, be prescribed in each State by the Legislature thereof ; but the Congress may at any time make* or alter such regula- tions, except as to the places of choosing Senators." These provisions constitute what may be called " the right of representation of the States under the Constitu- tion," a right arising from the Constitution, and not from the original sovereignty of the States. Article 4, Section 1, containing the provision that " Fall faith and credit shall be given in each State to the public acts, records, etc.," of every State, and giving power to Congress to prescribe the manner in which such acts, etc., shall be proved. Second Section of the same Article, providing that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. The first of these provisions not only confers a right on each State, but a right on the individual citizens of the State ; still it seems proper to place this proviso under the head of " The Rights of the States." Few cases have arisen in which the provisions of this sec- tion have been applied, except at the suit or instance of some individual interested, in a legal sense, in the public acts, records, and judicial proceedings of a given State ; most frequently applied to what are known technically as judgments of the Courts. 12 8YN0P8IS OF LECTURES. Rule as between independent nations as to the effect of the judgments of one nation within the jurisdiction of another ; statement of rule generally prevailing ; statement of the general rule of common law as applied in England and America ; practice in this respect prior to the Revolu- tion and during our colonial history ; particularly in Mas- sachusetts. View of Judge Story as to the meaning of this Section in reference to conclusiveness of judgments ; definition of "conclusive" as here used ; general effect of these pro- visions in effecting "a more perfect Union," and insuring " domestic tranquillity." Limitations upon the effect of these provisions ; want of jurisdiction in the Court rendering the judgment in question. Act of Congress of March 27, 1804, and its effect. Provision of Section 2 of same Article — the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States ; properly placed in the rights of the States. What are privileges and immunities of citizens in the several States; case Cor field v. Coryell, 4 Wash. Cir. Ct, Rep. 371, where it is said that these expressions are con- fined to privileges and immunities which are in their nature fundamental, such as protection by the government ; en- joyment of life and liberty ; right to acquire and possess property ; right of citizen of one State to pass through or reside in another State for the purpose of trade, etc. ; benefit of the writ of habeas corpus ; right to institute and maintain actions in the Courts ; to take, hold, and dis- pose of property. Views of Mr. Justice Field in the case of Paul v. Vir- ginia, 8 Wall. Fuller statement of "privileges and immunities" in Ward v. The State of Maryland, and Slaughter- House cases, 16 Wall. Effect of this provision in promoting the great object of the Constitution. Lecture II. Second and third paragraphs of Section 2 of Article 4, establishing system of inter-state extradition, or the return by the authorities of one State to those of another of per- sons charged with crimes committed within the latter State, and the third paragraph, providing for the return of persons escaping from service or labor in one of the States. Latter paragraph has become obsolete since abolition of slavery ; the former two still constitute essential provision of Constitution regulating relations of States to each other. Question of duty of one independent State to deliver up escaping criminals is, as an original question, matter of dis- pute in international law ; fact that such return is usually provided for by treaties supports the view that duty is not originally absolute ; but no such question can arise under our Constitution. Most conspicuous and authoritative decision of the Su- preme Court upon this provision, case of Commonwealth of Kentucky v. Dennison, Governor of Ohio, 24 Howard's Eeports ; opinion of Chief Justice Taney, holding that it was the absolute Constitutional duty of the Governor of Ohio to deliver up the fugitive in question ; this duty being merely ministerial, and involving no discretion ; but ad- mitting that the United States government could not coerce a State officer, and hence denying the motion for man- damus. Case of Taylor v. Taintor, 16 Wall., 266, seems to modify doctrines of Kentucky v. Dennison, holding that the duty is not absolute and unqualified ; in general terms, upon presentation of regular papers conforming to the laws of Congress, the duty of returning the fugitive is absolute, with only such exceptions as are implied from the necessi- ties of different cases. , 4 SYNOPSIS OF LECTURES. Section 3, of Article 4, in its first paragraph, provides as follows : " New States may be admitted by the Congress into this Union, but no new States shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress." Provisions of articles of confederation of 1777 on this point ; this provision had reference, originally and chiefly, to the Western Territories or public domain ; but it guards also the integrity of the original States as they existed in 1789 ; right of Congress to admit new States has never been questioned ; but the admission of new States has been the cause of great controversy as to conditions of ad- mission, especially as to subject of slavery. Article I, Section 8, clause 16, of the Constitution : " The Congress shall have power to provide for arming, organiz- ing, 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 ap- pointment of the officers and authority of training the militia, according to the discipline prescribed by Con- gress." This provision follows immediately the five provisions which constitute what are usually called the " war powers " of the Uni ted States ; all taken together, form efficient s ys- tem of military power and defence for the United States ; special value and sagacity of provision relating to the militia ; right reserved to the States to appoint officers and train militia, but discipline to be prescribed by Congress ; thus securing power of the National government in case of war, and guarding autonomy of the States at the same time. These provisions, occasion of much alarm both in the Federal convention and in the State legislatures at adop- tion of Constitution — alarm which has hardly been heard since adoption of Constitution ; only serious question which has arisen — "In whom is the power lodged to de- SY2T0P8I8 OF LEGTUBBS. IS termine the circumstances under which Congress, through the President, when so designated, may exercise power of calling forth militia ? " Question arose during the war of 1812, in the case of Connecticut and Massachusetts ; governors of these States held they had power to refuse calls for militia for service outside the States ; in Connecticut, legislature sustained Governor ; in Massachusetts, Supreme Court sustained Governor ; 8 Mass. Rep. 554. Views of President Madison on this occasion. Question finally settled in Martin v. Mott, 12 Wheat. 19, in 1827, by Supreme Court of United States holding that power belonged exclusively to the President acting under power. conferred by Act of Congress ; see President Madison's message of November, 1812, and President Monroe's message ; reports and resolves of Massachusetts, 1830, and Dwight's history of Hartford convention ; the power of President to call forth State militia is now well settled. Article I Y, Section 4: "The United States shall guar- antee to every State in this Union, a republican form of government and shall protect each of them against in- vasion ; and on application of the legislature, or of the executive, when the legislature cannot be convened, against domestic violence." Two distinct provisions here, (1) the guarantee of a re- publican form of government, and (2) the guarantee of protection against invasion and domestic violence. Meaning of phrase — "A republican form of govern- ment;" statement by Madison in No. 21, of The Federal- ist ; further discussion in Nos. 21 and 43 of The Feder- alist. Guarantee against invasion and domestic violence, con- sidered in 1841-2, in Rhode Island case of Luther v. Bor- den, 7 How. Rep. I ; statement of this case and its circum- stances ; points decided by the Court. 1 6 SYNOPSIS OF LECTURES. Article 5 of the Constitution, provides the mode of adopting amendments to the Constitution ; substantially this ; Congress, by two-thirds vote of both Houses, may propose amendment, or on application of legislatures of three-fourths of the States, shall call a convention for the purpose of proposing amendments, which amendments shall be valid as parts of the Constitution, when ratified in manner prescribed, provided no amendment made prior to 1808 should affect the first and fourth clauses in 9th section of iirst Article ;" statement of effect of this proviso. Fifteen amendments have been adopted since 1787 ; first ten proposed at first session of first Congress, September 25, 1789 ; the 11th amendment proposed by the third Con- gress, March 15, 1790, and ratified, January 8, 1798 ; 12th amendment proposed in 1803 and adopted, in 1804 ; 13th amendment proposed 1864, adopted 1865 ; 14th amendment proposed 1866, adopted 1868 ; 15th amendment proposed 1869, adopted 1870. Paragraph 3, Section 9, Article 1.— "No tax or duty shall be laid on articles exported from any State. No pref- erence shall be given by any regulation of commerce or revenue to the ports of one State over those of another ; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another." This provision is found in articles treating of legislative powers under the Constitution, and is placed among the inhibitions upon Congress ; but as it secures right or privilege to the States, it may properly be treated under the head of " Rights of the States." Object of this provision is clear — to prevent the possi- bility of Congress in laying taxes or regulating commerce to give advantage to one State over another ; hence Con- gress was absolutely forbidden to lay any tax or duty upon articles exported from any State ; the relation of this provision to general subject of regulation of commerce be- tween the several States ; last clause, relieving vessels SYNOPSIS OF LECTURES. 17 bound to or from one State from entering, clearing, or pay- ing duties in another ; limitations upon this last clause. Significance of this provision, securing absolute freedom of commerce between the States and absolute equality of States under any regulations adopted by Congress ; value and effect of these provisions. The 11th Amendment — "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." Scope and effect of this provision ; subject of much dis- cussion and controversy ; first great authority — Osborn v. Bank of the United States, 9 Wheat., 738, decided in 1824 ; opinion by Chief Justice Marshall ; statement of conclu- sions ; Davis v. Gray, 16 Wall., decided in 1872 ; followed decision of Osborn v. Bank ; case of United States v. Lee, 106 U. S., decided in 1882 ; held that exemption from suit did not apply to officers and agents of the United States holding possession of property for public uses when sued by persons claiming to be the owners,, and that in such cases the Courts had jurisdiction. These three cases maintain construction which does not exempt officers of the State from suits. In habeas corpus case of Ex Parte Ayers, decided in 1887, the Supreme Court seem to have modified previous doctrine to considerable extent ; statement of latter case. Under the head — " Rights of the States under the Con- stitution" — we have now considered, first, provisions regulating representation of States in Congress ; second, provisions securing interstate amity and good neighbor- hood ; third, the reservation to States of appointment of militia officers, and training of militia ; fourth, guarantee to each State of a republican form of government, and pro- tection against invasion or domestic violence ; fifth, guar- antee of territorial integrity of the States ; and, sixth, ! 8 8 TJST0P8I8 OF LECTURES. securing the freedom of the States from suits by citizens of other States or of foreign governments. These, with the reserving clauses, constitute complete system securing and protecting rights of the States and their autonomy for all purposes except those necessary for the vigor and life of the Nation. Most briefly stated, the scheme consists in giving to national government so much of the power previously held by the States as was necessary for the purposes of the national government, and the reservation to the States of the entire residuum. Still, by far the greater part of rights of States are due not to the Federal Constitution, but to the fact that the States were originally independent governmental organ- isms ; probably nine-tenths of daily civil rights of citizens of States arise from powers and functions of the States originally, and are not derived from the Constitution. THE OBLIGATIONS OF THE STATES UNDER THE CONSTITUTION. The provisions which cover what may be called " State obligations" or State subordination, are embraced in the two Sections — Sections 2 and 3 of Article 6. Section 2.—" This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the Constitution to the contrary notwithstanding. Sectiou 3. — " The Senators and Representatives before mentioned and the members of the several State Legisla- tures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution ; but no SYNOPSIS OF LECTURES. i g religious test shall ever be required as a qualification to any office or public trust under the United States." General purpose of these sections ; to fix absolute supremacy of national government within its prescribed sphere, over all State authority or power ; section 2, after declaring the supremacy of the Constitution and laws, adds specification that judges in every State shall be bound, thereby, and for greater emphasis adds— "anything in the Constitution or laws of any State to the contrary notwith- standing ; " not only is the Constitution made supreme, but all laws made in pursuance thereof ; not all laws made by Congress, but only laws made in pursuance of the Con- stitution ; not only laws, but treaties made under the authority of the United States ; remarks of Hamilton in No. 33 of The Federalist. This section proposed in the convention of 1787 by Luther Martin of Maryland, an earnest champion of the rights of the States ; proposed by him as a substitute for the Virginia proposition giving a negative to Congress upon laws passed by States contravening the articles of the Union or treaties subsisting under the authority of the Union. This provision changed the power to set aside un- constitutional laws, from the Congress to the Courts ; remarks of Mr. Curtis in his history of the Constitution ; peculiarity of the last clause of Section 2 — "The judges in every State shall be bound," etc.; purpose, to exclude every pretence of power or right to disregard the Constitution and Laws of the United States ; the supremacy which is here declared for Constitution and laws of the United States, lies at the very foundation of oar government ; but this will be reserved for a later lecture; proceedings of con- vention of 1787 show that many provisions of the Con- stitution were adopted as the result of experience under articles of Confederation, and with the intention of curing evils which arose under that government ; in Confedera- tion, no power lodged in general government to overcome final objection of single State ; examples of this ; remark 20 SYNOPSIS OF LEOTUBES. of Hamilton, " The radical vice in the old confederation is that the laws of the Union apply only to States in their corporate capacity ; " in meeting and curing this. defect the provisions of the Constitution are without any exact parallel in history; under these clauses every conflict between National authority and authority of a State may be made a judicial question and solved by the judicial department ; by this arrangement, co-existence of two separate powers, or sovereignties — National and State— lias been rendered practicable; the rejection of alternative proposition seems to have been the very crisis of the con- vention of 1787. Provisions of second and third sections of Article 6, taken with the grant of judicial power over all cases in law and equity arising under the Constitution and laws of the United States, undoubtedly are the features which most es- sentially distinguish the American Union from all previous republics : well, however, to remark again that this result is very strictly the result of what Mr. Gladstone calls "pro- gressive history," rather than the mere device of the fram- ers of our Constitution. Closely connected with the national supremacy under the Constitution is the last of the Articles of the original Con- stitution ; " The ratification of the conventions of nine States shall be sufficient for the establishment of this Con- stitution between the States so ratifying it." Too much significance can hardly be ascribed to this mode of securing adoption of the Constitution ; plain that members of convention were aware of this significance ; Mr. Sherman thought such a ratification "necessary;" Mr- Madison remarked that he thought it "indispensable" that the new Constitution should be ratified by " the supreme authority of the people themselves ; " here appears clearly the idea that action of conventions in several States was ac- tion of people themselves ; result of vote by States upon final adoption of this form of ratification of Constitution ; subsequent debates upon same subject at later periods of SYNOPSIS OF LECTURES. 2i convention of 1787 ; final adoption of above quoted provis. ion ; set purpose of convention, to make Constitution rest on the people, and not on the States. Contrast with this of provision for adoption of amend- ments which may be proposed by legislature of three- fourths of the States or by conventions of three-fourths of the States. Section 3 of Article 6 falls properly under the head of State subordination ; object, to bind individuals by sanction of oath to allegiance to the Constitution ; remarks by Mr. Madison in No. 44 of The Federalist. Section 2 of Article 6 includes all treaties made under the authority of the United States. Remarks of Judge Story upon legal character and obli- gation of treaties ; case of Foster v. Neilson, 2 Pet., 314 ; difficulties arising under Confederation, cause of making treaties supreme law of the land ; views of Jay, in No. 64 of The Federalist ; debate in Congress on carrying into effect provisions of Jay treaty, 1794 ; character of this debate, and opposing views ; result, House of Representatives declared that where treaty touched upon matters committed by Con- stitution to Congress so as to depend for execution on law of Congress, House of Representatives had right to delib- erate and determine whether it would enact such law ; views of President Washington strongly opposed to view of House of Representatives ; similar views of Washington's Cabinet, including Mr. Jefferson, as well as the Senate ; re. f usal of President Washington to deliver to House of Rep- esentatives papers respecting treaty of 1794. Recurrence of same question during administration of President Johnson in regard to purchase of Alaska, for which appropriation was called for by President ; better opinion appears to be that under our Constitution treaty does not become supreme law of land in absolute sense as under the Constitution of England, because as the Supreme Court has declared, a treaty in this country is subject to repeal by Congress, like any legislative Act, and that a 22 STSOPSTS OF LEOTtJBES. subsequent Act of Congress conflicting with it is a repeal pro tanto, and because it does not seem reasonable that powers conferred expressly by the Constitution upon Con- gress should be virtually abrogated by the action of Presi- dent and the Senate alone, in making treaties ; but binding efficacy of treaties in all respects upon United States, when duly made, and in the cases requiring Congressional action, when ratified by Congress, is unquestionable. Lecture III. The prohibitions on the States under the Consti- tution. The direct prohibitions upon the action of the States, the specific denials to the States of the exercise of certain ordinary powers of sovereign governments, are found in Section 10 of Article I of the Constitution. (1) " No State shall enter into any treaty, alliance or confederation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make anything but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts ; or grant any title of nobility." (2) "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspec- tion laws ; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Con- gress." (3) "No State shall, without the consent of Congress, lay any duty of tonnage ; keep troops or ships of war in time of peace ; enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay." These prohibitions are not stated here in natural or logical order ; it will promote clearness if they are grouped topically. 24 SYNOPSIS OF LECTURES. Political Inter-State Relations. (1) No State shall enter into any treaty, alliance or confederation ; nor (2) enter into any agreement or com- pact with another State or with a foreign power, without the consent of Congress. War Powers of the States. (1) No State shall grant letters of marque and reprisal ; nor (2) keep troops or ships of war in times of peace ; nor (3) engage in war unless actually invaded or in such immi- nent danger as will not admit of delay. Commercial Poewrs of the States. (1) No State shall coin money ; nor (2) emit bills of credit ; nor (3) make anything but gold and silver coin a tender in payment of debts ; nor (4) pass any law impair- ing the obligation of contracts. Legislative Powers of the States. (1) No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of Congress. The irst of these ti pics— political inter-state relations — was fi and in Article *3, of fhe articles of confederation of 1777 ; these provisions look directly to an establishment of national government, supreme over the States within its granted powers ; views of -Madison in No. 40, of The Fed- eralist. The provisions, called "war powers of the States," look to the same end. SYNOPSIS OF LECTURES. 25 The articles of confederation provided that no two or more States should enter into any treaty, etc., without the consent of the United States in Congress assembled ; but under the Constitution this power is wholly denied under any circumstances. Contrast of these several provisions with provisions of articles of confederation. Denials of powers to the States in commercial or financial affairs expressed in briefest terms — no State shall coin money, emit bills of credit, make anything but gold and silver a tender in payment of debts, nor pass any law im- pairing the obligation of contracts. Section 8, Article I, of the Constitution, gives Congress power to coin money, and to borrow money on the credit of the United States. Under the confederation, concurrent power to coin money was left in the States, with the restriction that Congress alone should have power to regulate the alloy and value of coin struck by the States. Purpose of Constitution, to secure uniformity of cur- rency, and to prevent the evil of circulation of base coin. The subjects of coinage and currency and legal tender more properly fall under the consideration of the powers of Congress under the Constitution, and will not be fur- ther discussed here. Effect of experience of the colonies and States under the confederation, as to evils following from a debased paper currency ; the grants of powers to Congress, and denials of powers to the States on these subjects, to be read and con- sidered in the light of this experience. Remarks of Mr. Madison in No. 44 of The Federalist, upon the prohibition against bills of credit. Question of meaning or interpretation of phrase, "bills of credit;" cases of Craig v. State of Missouri, 4 Pet., 433 ; Briscoe v. Bank of Kentucky, 11 Pet., 257; doctrine "stated, that bills of credit must be issued by the State upon the credit of the State, and be designed to circulate as 26 8YW0PSIS OF LECTURES. money on the credit of the State in ordinary business uses ; Briscoe v. Bank of Kentucky holds that bills of banking corporation, though the State owns the entire stock, and pledges its faith for the redemption of the bills, and makes them receivable for all public dues, are not bills of credit, because a bill of credit must be a promise of the State and not a guarantee of another's promise ; these decisions remain unchanged to the present time. Eemarks of Bancroft upon the latest decision of the Supreme Court — Juillard v. Greenman, 110 U. S,, 421. Clauses forbidding the States to impair obligation of contracts ; importance of this provision ; great number of cases arising and decided by the Supreme Court under this clause ; cases still recurring almost as frequently as .formerly. Principal points decided : Dartmouth College v. Wood- ward, 4 Wheat., 518 ; importance of this case ; statement of case, and its argument ; decision, that a charter granted by a State is a contract between the State and the corpora- tion or beneficiaries, which the State cannot afterwards essentially change or withdraw without the consent of the corporators. Criticism upon this case ; value and soundness of the decision. Question whether a perpetual exemption from taxation by the charter of a commercial corporation is a contract under the Constitution ; held that it is a contract which cannot be repealed ; line of dissents on this point, and ground of dissent. Question whether a change of remedy for enforcement of contract is an impairment of contract ; settled doctrine that change of remedy not essentially impairing value of contract is within legislative power ; but change of remedy which essentially impairs value of contract is forbidden ; case of Green v. Biddle, 8 Wheat., I. Question as to the obligation of contracts in the form of State debts or State obligations for money borrowed ; crit- S Y1T0PSI8 OF LECTURES. 2 7 icisms upon recent decisions of Supreme Court thought to be less strict than former decisions. Yiews of Madison and Hamilton in Nos. 44 and 84, of The Federalist. Clauses forbidding States to pass bills of attainder or ex post facto laws, or to grant titles of nobility. Bills of attainder and ex post facto laws are technical terms. The United States are equally forbidden to pass bills of attainder or ex post facto Jaws. Definition of bills of attainder in this country. General definition of ex post facto laws ; case of Fletcher v. Peck, 6 Cranch, 138 ; case of Qumraings v. Missouri, 4 Wall., 277. Subject of Inter-state commercial duties or imposts, a matter of much discussion and difficulty in convention of 1787. Case of Gibbons v. Ogden, 9 Wheat., I ; and Brown v. Maryland, 12 Wheat., decided in 1824 and 1827; state- ment of Brown v. Maryland. XlVth and XVth Amendments adopted in 1868 and 1870, contain express prohibitions on the States. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United Stat.es, nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person the equal protection of the laws." Clause immediately preceding these prohibitions de- clares that all persons born or naturalized in the United States and subject to its jurisdiction, are citizens of the United States and of the State wherein they reside. Phrase "citizens of the United States" in this pro- hibition means all persons born or naturalized here, and subject to our laws. Importance of a clear statement of the meaning of this 28 SYNOPSIS OF LECTURES. prohibition as determined by the decisions of the Supreme Court. The clause "No State shall," etc.; decisions of the Supreme Court hold that this prohibition is directed solely to State action in distinction from individual action ; that the amendment only secures citizens against the effect of State laws which abridge their rights. This construction in plain accordance with the language of prohibition. But it is said that it is not according to the intent of the people in adopting the amendment ; but the intention must be sought in the words used ; debates attending passage of this amendment do not indicate a different meaning from the words used. If ordinary meaning is attached to words used, the pro- hibition is plainly limited to State action : action through State laws, or acts of State officials. This amendment construed by the Supreme Court in series of cases ; Slaughter-house cases, 16 Wall., 36 ; statement of these cases, and doctrines held by the Court. Next leading cases ; Strauder v. West Virginia, Vir- ginia v. Hives and Ex Parte Virginia, all reported in 100 U. S. Statement of these cases, and general result of decisions. Examination of each of these decisions. Next leading cases known as the Civil Rights cases, re- ported in 109 U. S. Statement of these cases ; the question involved, and the decisions reached. View of all the cases now referred to, and summary of results. IVth section of XlVth Amendment contains prohibition on States from "assuming or paying any debt or obliga- tion incurred in aid of insurrection or rebellion against the United States or any claim for the loss or emancipation of any slave ; but all such debts, obligations, and claims shall be held illegal and void." SYNOPSIS OF LECTURES. 29 No question has arisen for controversy on this prohibi- tion. XVth Amendment contains prohibition upon States from denying or abridging the right of citizens of the United States to vote on account of race, color, or pre- vious condition of servitude. This prohibition considered in case of the United Slates v. Reese, and United States v. Cruikshank, 96 U. S. Popular expectation of effect of this amendment prior to its adoption. Disappointment in this respect. Exact language of amendment, " The right of citizens of the United States shall not be denied or abridged by the United States or by any State," etc. As in case of XIYth Amendment, this prohibition is leveled at the United States and the States, and at nothing else ; applying the same rule of construction as in the XlVth Amendment the same result is reached ; prohibition does not extend to denials of right to vote by the action of individuals, or the action of unauthorized combinations of individuals, but only to denials by what may be called the States. Statement of decisions in United States v. Reese, and United States v. Cruikshank. Lecture IV. The Union : its nature, and the mutual general relations of the states and the united states under the Constitution. In the three preceding lectures, the relations of the States to the Union under the Constitution, have been considered. This has made it clear that the purpose of the Constitu- tion was not merely to form a Nation, but equally to pre- serve the strict independence and autonomy of the States within the scope of the powers not granted to the Nation or prohibited to the States ; State-Rights is not, therefore, an unwarranted phrase under the Constitution ; but State- Rights do not include the power to throw off the restraints of the Constitution, nor to disturb the absolute supremacy of the general government within the limits of its power. Result of examination now made, that the relations of the States to the Union include (1) those rights of sovereign political communities which are not conceded to the na- tional government ; (2) certain well-defined rights con- ferred by the Constitution on the States, among which latter are, (1) the right of the States to representation in the Senate and House of Representatives, (2) the rights of the States to have their public acts, records, etc., respected, as well as the privileges and immunities of their citizens enforced in each of the States ; (3) the right of the States to recover fugitives from justice escaping into another State; (4) the right of territorial integrity, without divis- ion or consolidation, except by their own consent ; (5) the right to appoint the officers of their militia, and to traiu the militia under the discipline prescribed by Congress ; SYNOPSIS OF LECTURES. 31 (6) the right to be guaranteed a republican form of govern- ment, and protection against invasion and domestic violence ; (7) the right to pass upon all proposed amend- ments to the Constitution, or to join with the other States to call a convention to amend the Constitution ; (8) the right of freedom from commercial restraints in inter-state commerce, and from all taxes or duties on foreign exports ; and (9) the right of exemption from suit by citizens of other States and* foreign countries. Among the obligations imposed by the Constitution upon the States are (1) the obligation of obedience to the Consti- tution, and the laws passed in pursuance thereof, and to treaties made under the national authority, and more es- pecially the obligation of all judicial officers of the States to obey the Constitution and laws of the United States ; (2) the obligation growing out of the fact that the Consti- tution was ratified according to its requirements by Con- ventions called in the several States ; thus making it the sovereign will of the people of the States, and not of the States in their corporate capacities. Among the prohibitions imposed upon the States, are (1) the prohibition of the right to enter into any treaty, al- liance, or confederation, or enter into any agreement or compact with another State or foreign power without the consent of Congress ; (2) the prohibition of granting let- ters of marque or reprisal, keeping troops or ships of war except when actually invaded or imminently threatened ; (3) the prohibition of coining money, emitting bills of credit, making anything but gold and silver a legal tender for debts, or passing any law impairing the obligation of contracts ; (4) the prohibition from passing any bill of at- tainder, or ex post facto law, or granting any title of no- bility ; (5) the prohibition from laying any imposts or duties on imports or exports without the consent of Con- gress ; (6) the prohibition from, making or enforcing any law abridging the privileges or immunities of citizens of the 32 SYNOPSIS OF LECTURES. United States or depriving any person of life, liberty or property without due process of law, or denying to any person the equal protection of the laws : (7) the prohibition from abridging or denying the right of citizens of the United States to vote, on account of race, color, or previous con- dition of servitude. These provisions present from the point of view of the States, the scheme of the Constitution. Taken in connection with the powers conferred and the restrictions imposed on the United States, they make up substantially the whole plan of the Constitution. It is proper, therefore, to consider here the whole general question of the nature of the Union established by the Constitution — the question not of specific powers of the States, or of the United States, but the character of the resulting government. Two distinct antagonistic views of the nature and legal effect of the adoption of the Constitution have been held during the whole period of its existence ; (1) that the Con- stitution is a compact between the States ; (2) that the Con- stitution is a charter of government which establishes a nation. View of Jefferson in 1797 that "The Constitution is a compact between the States;" views expressed in Ken- tucky Resolutions of 1798 ; as well as the Virginia Report of 1800, inspired or drawn by Jefferson ; Madison even in the Virginia Report asserted chat "The States were parties to the constitutional compact and in their sovereign capac- ity ; " same doctrine held by Tucker in his Commentaries, as well as by Calboun. First question : By whom was the Constitution adopted ; an historical question ; a question of fact. First evidence : the language of the Constitution ;— "We, the people of the United States, do ordain and establish this Constitution." Who were the people of the United States? They SYNOPSIS OF LEOTUBES. 33 were the body of persons then dwelling in the territory comprising the United States under the confederation of 1777 ; there was then a government called the " United States of America." The phrase "the people of the United States" described a perfectly well-defined body of persons. Contrast of language of articles of confederation : — "Articles of confederation and perpetual union between the States." Articles of confederation purported to be executed by delegates "on the part and behalf of" the several thir- teen States. Language of Constitution contradicts idea that the Constitution was a compact between the States, and as- serts that it was a Constitutien adopted by the people of the United States, and not by the States as corporate bod- ies or governments. Origin of Constitutional Convention of 1787. Initiative by the legislatures of the several States ; natural that this should be so, inasmuch as the States were unquestionably the parties to the existing confedera- tion. But the Constitution framed by the Convention closes with these words, "The ratification of the Convention of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." In conformity with this proposition, Congress directed the new Constitution to be "transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof." It has already been shown what was the significance of this mode of adopting the Constitution in the minds of the members of the Convention. Another noteworthy historical fact is that the plan of the Constitution presented by Mr. .Randolph of Virginia, as well as that presented by Mr. Pinckney of South Caro- lina, provided that the Constitution should be submitted 34 SYNOPSIS OF LECTURES. to the assemblies of representatives or to conventions of delegates chosen directly by the people. Review of opinions of leading members of the Con- vention, and of the effect attributed to the method finally chosen. Consideration of opinion of Mr. Madison in 1800, that the Constitution was a compact between the States ; differ- ent statement of his views in a letter to the North Ameri- can Review in 1830, wherein he declares .the Constitution was not "adopted by the governments of the component States, but by the States, that is, by the people in each of the States acting in their highest sovereign capacity." Madison evidently shrank from the logical and neces- sary results of his former opinion. Was the Constitution adopted by the States as govern- ments, in their corporate capacities, or by the States as bodies or aggregations of people % In either view the Constitution was adopted by the people, and not by the governments of the States or by the States. To the extent, therefore, of the powers conferred by the Constitution it is the government of a nation — not a con- solidated nation, but a nation with limited, denned pow- ers — a perfect nation to the extent of its granted powers. Great and serious question— what rightful powers has the government of the United States to preserve its own existence as a government under the Constitution ? Answer : If the United States is a nation, if the Consti- tution has ordained a national government, that govern- ment has the right on all occasions and, under all circum- stances to defend its existence and the existence of the nation. The moment the nation called the United States came into existence, and at every moment thereafter, it has had the right, common to all nations, of self-preservation. The government of the United States has not the same amropsis of lectttbes. 35 specific rights as the government of England or of Bussia, but it has equally the right of self-preservation to the ex- tent and in the sense in which it has been made a nation by the Constitution. Article 6 of the Constitution expresses clearly the idea of absolute supremacy of the nation over all State laws or State Constitutions ; this involves the right on the part of the United States to assert and maintain the supremacy at all times, and exert the powers which are granted to it by the Constitution. It was obvious to the framers of the Constitution that questions would arise respecting the powers conferred by the Constitution ; allegiance was required to laws passed in pursuance of the Constitution, but what if laws were passed which were not in pursuance of the Constitution 1 It was plain that this question would arise, and the framers of the Constitution foresaw it. Their answer was the adoption of the two great sections of Article 3 of the Constitution. Section 1. "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." Section 2. "The judicial power 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." Thus all cases arising under the Constitution, all contro- versies, involving the powers, rights and duties, either of the States or of the United States, are placed under the judicial power of the government ; an arbiter of all pos- sible questions relating to the powers and rights of the United States, or of the States so established. Language of Mr. Webster : We have, therefore, a government established by a Con- stitution, adopted by the people, declared supreme over 36 SYNOPSIS OF LECTURES. all other authority within the territory of the United States— all its powers and rights to be interpreted, con- strued, declared and settled by the judicial power of the United States, as a final tribunal. The power and the right of the government of the United States, under the Constitution to protect the nation and to enforce constitutional provisions and constitutional laws to overcome resistance, put down insurrection or rebellion, whatever be its shape or source, is as absolute and indis- putable as the power of England or Russia to enforce the authority of their governments. This conclusion rests on the clear terms of the Consti- tion, and on the historical fact of its adoption by the people of the United Slates. To suppress insurrection or repel invasion, it is therefore a Constitutional power of the United States as much as an ordinary act of legislation. But the United States has no powers even of self preser- vation, beyond the powers which are conferred upon it by the Constitution ; case of Ex Parte Milligan, 4 Wall., 118. Statement of this case, and substance of decision. Opinion of Chief Justice Chase in Texas v. White, 7 Wall., 700; statement of this case and conclusions of the Court. Restatement of the conclusions reached from this ex- amination of the nature of the Union and government established by the Constitution. Having considered the relations of the States to the United States, and the nature of the Union and govern- ment established by the Constitution, the next topics in natural order are the powers conferred by the Constitution upon the government of the United States. These powers fall under three titles— the Legislative, the Executive and the Judicial. The three departments of the government are co-ordinate and have like supremacy ; but the legislative power in some sense is the highest. SYNOPSIS OF LECTURES. 37 Power to make laws which shall bind all, and operate upon all other departments of the government, is the fore- most power and function of government. This pre-eminence recognized in the fact that the first section of the Constitution is devoted to the designation and limitation of this power. Precise language of the Constitution in granting the general powers of the three departments of the govern- ment ; in the case of legislative powers in section 7 of Article 1, express exception is made from the grant of plenary power to make laws, in the provision requiring the approval of the President, or in case of his disapproval, a vote of two- thirds of each House. Similar virtual exception in the recognized function of Courts to annul acts of legislation which are not consonant with the Constitution. Hence the independence of the three great departments of each other is not absolute or unqualified. Division of legislative power between two Houses or Chambers ; as an historical question ; precedents on each side in early Constitutions ; Constitution of Pennsylvania ; of Georgia ; views of Sir James Mackintosh and of Lieber ; and of Story ; Constitution of Vermont. Adoption of the bicameral system in 1787, except in Pennsylvania, Georgia and Vermont. No controversy in Convention of 1787 over the division of the legislature in its two branches ; vote upon this question. Statement of views of Chancellor Kent. After vesting all legislative power in a Congress to con- sist of Senate and a House of Representatives, the conven- tion considered the proper mode of constituting the House of Representatives. This was undoubtedly one of the most critical, if not the most critical, point presented to the convention. Provision of Mr. Randolph's plan of Constitution. 3 8 SYNOPSIS OF LEOTJJRBS. Question whether members of the House of Representa- tives should be elected by the people or by State legisla- tures ; great divergence of views ; leading members of the convention divided at first upon this question ; five States at first voted for the election of members by the people, two voted against it, and two were divided. Motion of Mr. Pinckney of South Carolina that members of the House of Representatives be elected by State legis- latures, and not the people ; record of vote upon this ques- tion ; subsequent consideration of the same question, the vote at first standing, yeas 4 for election by State legisla- tures, nays 6 ; final vote of yeas 7, and nays 1, with Mary- land divided. The next question which arose was the qualifications of the electors in the several States — who should elect mem- bers of the House of Representatives ; in other words, " Who will be considered the people for this purpose V Two views ; one to establish by the Constitution a uni- form basis of suffrage ; the other, to adopt such bases and regulations as each State might fix. Question here involved ; general idea of centralization or decentralization, of enlarging or restricting the power of Congress over the States. Present requirement that "the electors of each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures," taken from Mr. Pinckney' s draft of a federal Constitution. Argument for uniform bases to be established by Congress strongly urged upon the convention. Discussion of this question in Nos. 51 and 52 of Federal- ist, probably written by Hamilton. Often regretted that the Constitution does not define the right of suffrage, or establish a test of suffrage, distinct from that of the States ; failure to do this one of the high- est evidences of practical wisdom of the convention. No uniform test could probably have been fixed upon by SYNOPSIS OF LEOTUBSS. 39 the convention ; each State was wedded to its own practice and rules of suffrage, and interference by the convention would have raised insurmountable opposition. Power over this subject in Congress would have been a long step toward consolidation of power in the general government to the detriment of the power of the States. The XVth Amendment adopted in 1870 simply provides an inhibition upon the States from depriving citizens of the United States of the right to vote, on account of race, color, or previous condition of servitude ; subject to this one re- striction, the States are as free now as they were before 1789, to adopt such terms of suffrage as they see fit. The next subject was the length of term of service of the members of the House of Representatives. The propositions made were for periods of one, two and three years ; several leading members favoring one year, and Mr. Madison three years ; first voted to fix the term at three years ; subsequently changed to two years. Views upon this question of Kent, Story and the writers of Nos. 51 to 57 of Federalist. Next great feature of representation was the basis of apportionment, or the rule determining the number of rep- resentatives from each State. The provisions of the Constitution upon this point are these, (1) representatives are apportioned among the several States according to their respective numbers ; (2) these numbers are to 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 ; (3) the census for ascer- taining the population of the several States was to be taken within three years from the first meeting of Congress, and within every subsequent term of ten years ; (4) the number 4 o SYNOPSIS OF LECTURES. of representatives not to exceed one for every thirty thousand, but each State to have at least one represent- ative ; (5) until the first census, the States to be entitled to a specified number of representatives. Lecture V. Three leading principles of apportionment of represen- tation proposed in the convention of 1787, (1) to follow the rule prevailing under the confederation, giving to each State not less than two nor more than seven representatives, each State having but one vote ; (2) to make property the basis of apportionment ; (3) to apportion on the basis simply of population. Mr. Randolph's original plan; (1) property recognized as one basis of apportionment ; (2) if population "was rec- ognized as a basis it was free population alone ; (3) some of the convention were inclined to use both these bases of apportionment. Progress of debate on this topic in the convention ; views of leading members. First proposition to include in population those bound to servitude for a term of years, and three-fifths of all other .persons, not including Indians not taxed ; view of Mr. Gerry upon making slaves part of population for ap- portionment of representation ; vote on this question. Further progress of the discussion ; final result in the present provisions of the Constitution ; reference to Com- mittee of Detail, and final form agreed upon. Proportional represensation of the States in the House of Representatives, and equality of representation in the Senate. Importance of these results in making possible the adoption of the Constitution. No change until adoption of XlVth Amendment ; sum- mary of provisions of Constitution upon this subject. 42 SYNOPSIS OF LECTURES. Additional provisions as to qualifications of represent- atives in Congress ; provision for filing vacancies. House of Representatives empowered to elect its own officers ; and vested with the power of impeachment. Definition of "impeachment." Separate Constitution of the Senate ; involved to some extent in discussion of Constitution of House of Repre- sentatives. Reasons for difference in Constitution of Senate and House of Representatives ; method adopted conformable to the nature of the federal government. Senate consists of two members from each State, chosen by the State legislatures, each Senator having one vote. Other qualifications of members of the Senate. Senate empowered to choose its own officers, except that Vice-President shall be its President. Senate vested with sole power of trying impeachments ; conviction requiring two-thirds vote, punishment limited to a removal from office, and disqualification from holding office. Other propositions in convention of 1787 respecting trial of impeachments ; debate in convention ; views in No. 65 of Federalist. What crimes and misdemeanors are impeachable ; whether the trial by the Senate is strictly judicial, or partly political ; what officers are meant by term "civil officers of the United States ; " views of Story and Rawle on these points. Provision common to both Houses as to times, places, etc., of holding elections of Senators and Representatives ; exceptions of power of Congress over place for choosing Senators. Regulations by Congress of manner of choosing Senators; Act of 1866. Power of Congress over times, places, etc., of election of representatives ; recent efforts to exercise this power. SYNOPSIS OF LECTURES. 43 Each House the judge of election returns and qualifi- cations of its own members ; what is a quorum, and when a less number may act ; power of each House to fix rules of procedure ; punish and expel members for disorderly conduct. Each House required to keep a journal of proceedings, and to publish it from time to time with certain exceptions ; entry of yeas and nays on journal at instance of one- fifth. Power of adjournment during session of Congress. Pay of members and exemption from arrest during attendance on Congress. Nature and extent of exemption ; exception in cases of of treason, felony and breach of peace ; meaning and extent of these terms. Exemption of members from being questioned elsewhere for speech or debate in Congress ; limitations and ap- plication of this exemption ; English and American practice. Second clause of section 6, forbidding appointment of Senator or Representatives to civil office under United States which shall have been created or the emolument thereof increased during time for which he was elected, etc. Initiative of House of Representatives, of revenue bills — section 7 of Article I. " All bills for raising revenue shall originate in the House of Representatives ; but the Senate may propose or concur in amendments, as on other bills." Meaning of bills for raising revenue ; object of this pro- vision ; term has never been strictly interpreted ; illustra- tions of meaning of phrase "bills for raising revenue;'' practice in several instances in Congress ; historical origin of the provision ; its value ; different opinions. Second clause of section 7, providing for presentation of all bills to the President, and mode of passage in case President vetoes^ 44 SYNOPSIS OF LECTURES. Several propositions discussed respecting the veto power in convention of 1787, (1) whether the powers shall be qualified or absolute ; (2) if qualified whether exercised by- President alone, or by him with some other department ; (3) what proportion of each House necessary to pass bill over veto. Discussion of each of these questions ; final distinction. Discussion of effect and value of veto power of the Pres- ident. Powers of Congeess as one Body. Importance of this topic ; express and implied powers. Clause 18, Section 8, Article 1, giving Congress power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof " ; effect of this provision. First great power of Congress — power of taxation ; want of such power under the confederation ; mischiefs result- ing. Words of Section 8 — " to pay the debts and to provide for the common defence and general welfare" — taken from articles of confederation. Language, Section 8, "to levy and collect taxes, etc, to pay the debts and provide for the common defence and general welfare of the United States" ; important ques- tion is, whether these clauses are to be read separately, or in connection with each other. Settled construction that second clause is limitation of first clause. Power of taxation by Congress is therefore limited to general objects specified — payment of debts, provision for common defence, etc. Question, who shall decide what purpose or objects fall SYJFOPSIS OF LECTURES. 45 within this language ? Authoritative rule by Chief Justice Marshall in McCullougJi v. Maryland. Examination of language— "levy and collect taxes, duties, imposts and excises" ; meaning of the several terms here used. Requirement that all duties, etc., shall be uniform throughout the United States ; taxes not embraced in this requirement ; reason for this. • Distinction between direct and indirect taxes ; require- ment of Constitution as to direct taxes. Question whether this clause gives exclusive power of taxation to the United States ; imposts and duties on im- ports and exports forbidden to the States ; otherwise power of the States not affected by the Constitution ; views in Nos. 32 and 36 of Federalist ; cases of Hytton v. United States, 3 Dallas, 171 ; and Springer v. United States, 102 U. S. Power of Congress to tax agencies and instrumentalities of State government ; case of McCullougJi v. Maryland, 4 Wheat, and Collector v. Day, 11 Wall. Clause 5 of section 7 — provisions intended to prevent discrimination in favor or against one State over another. General conclusions upon power of taxation ; (1) Con- gress has general power to lay and collect taxes ; (2) power limited to payment of debts and providing for common defence and general welfare ; (3) limited in case of direct taxes to apportionment among States on basis of popula- tion, and in case of indirect taxes to rule of uniformity ; (4) power to tax is concurrent with that of States, and neither can tax agencies and instrumentalities of government of other. Second great power of Congress, " to borrow money on the credit of the United States." Power given in absolute terms; implied limitation to borrowing for use of United States ; chief question, how 46 SYNOPSIS OF LECTURES. may this power be exercised ; generally in any manner conducive to the end of borrowing money ; ordinary modes, by issue of stocks, bonds, treasury notes, etc. Charter of bank of United States in 1816 ; defended partly on Constitutional ground of borrowing money for United States ; case of McGullough v. Maryland ; decision of Court as to right of Congress to charter bank ; case of Osborn v. Bank, 9 Wheat., 738 ; present national bank- ing system. Question of power of Congress to make treasury notes legal tender ; case of Hepburnv. Griswold, 8 Wall; change of Court in 1870, and second hearing of same question ; re- versal of first decision ; case of Julliard v. Greenman, 110 U. S., decided in 1883 ; discussion of this case ; dissenting opinion by Mr. Justice Field ; views of majority of Court by Judge Gray. Third great power of Congress, " to regulate commerce with foreign nations and among the several States and with the Indian tribes." Influence of interests of commerce in leading to conven- tion of 1787 ; history of steps preceding convention. Commercial regulations embodied in Constitution ; (1) general power to regulate commerce with foreign nations, and among the several States, and with Indian tribes ; (2) laying of any tax or duty on articles exported from any State, forbidden ; (3) preference by any regulation of com- merce to ports of one State over those of another, forbid- den ; (4) vessels bound to or from one State declared free from entering, clearing, or paying duties in another State ; (5) States forbidden without consent of Congress to lay im- posts or duties on imports or exports, except for executing inspection laws ; (6) States forbidden without consent of Congress to lay any duty of tonnage. Question whether power to regulate commerce is exclu- sive in Congress or concurrent with States ; three theories advanced : (1) power vested exclusively in Congress ; (2) power vested concurrently in Congress and States, except SY2T0P8I8 OF LECTURES. 47 so far as States are forbidden ; (3) when Congress has acted, States debarred from acting on same subjects ; but when Congress has not acted, States may act. Leading case, Gibbons v. Ogden, 9 Wheat., decided in 1824, by Chief-Justice Marshall ; statement of case ; con- clusions and grounds of decision. Case of Brown v. Maryland, 12 Wheat ; statement of case ; decision of Court. Relations of this question to question of police powers of the States ; case of City of New York v. Miln, 11 Pet., License cases, 5 Howard. Lecture VI. Commercial Clauses of Constitution. — (Continued.) Passenger cases, 7 Howard ; conclusions of Court ; case of Pennsylvania v. Wheeling Bridge Co., 13 Howard; statement of case. Case of Reading R. R. v. Pennsylvania, 15 Wall. ; con- clusions of Court ; held that general subject of transporta- tion of goods and passengers from one State to another is within exclusive jurisdiction of Congress. Case Railroad Co. v. Fuller, 17 Wall. ; held that many matters connected with inter-state commerce belong ex- clusively to States under general police powers ; statement of this case. Case of Welton v. Missouri, 91 U. S. ; license required to sell goods manufactured outside of the State ; held interference with interstate commerce. Case of Henderson v. Mayor of Jtfew York, 92 U. S. ; right of State to tax passengers from foreign countries ; decision that whole subject belongs to Congress. Cases of Packet Co. v. Keokuk, 95 U. S. ; Transportation Co. v. Parker sour g, 107 U. S. ; Railroad Co. v. Husen, 95 U. S. ; and Hall v. DeCuir, in same volume. Case of Pensacola Telegraph Co. v. Western Union Tele* graph Co., 96 U. S. ; held, State has not power to tax mes- sages sent out of the State. Trade Mark Cases, 100 U. S. ; Act of Congress held void on ground that provisions were not limited to foreign and inter-state commerce. Guy v. Baltimore, 100 U. S. ; held State cannot impose heavier tax on products of another State, than upon STNOPSIIB OF LE0TUBE8. 49 like products of her own territory ; Webber v. Virginia, 103 U. S, ; statute held void requiring: license to sell domes- tic manufactures, license not being required for selling same goods manufactured within the State. Gloucester Ferry Co. v. Pennsylvania, 114 U. S., and Brown v. Houston, 114 U. S., relating to right of State to tax property employed in inter-state commerce. Case of Walling v. Michigan, 116 U. S. ; statement of case ; decision of Court. County of Mobile v. Kimball, 102 U. S. ; Picard v. Full- man Car Co,, 117 U. S.; Wabash, St. Louis & Pacific Railway Co. v. Illinois, 118 U. S.; Bobbins v. Shelby County, 120 U. S.; cases of right of State to regulate or lay taxes upon instruments of inter-state commerce. Similar cases of Fargo v. Michigan, 121 U. S. ; Western Union Telegraph Co. v. Pendleton, 122 U. S. ; Smith v. Ala- bama, 124 U. S., and Bowman v. Chicago & Northwestern R. R. Co., 125 U. & Question of limits of police power of States also involved in latter case. Case of Ratherman v. Western Union Telegraph Co., 127 U. S. Summary of cases examined : (1) power to regulate com- merce extends over all subjects and means of commerce, affects person as well as goods, restrains State legislation, as well as gives right to national legislature ; (2) earlier doctrine that States might exercise this power whenever Congress had not acted, modified so that the fact that Con- gress has not acted is indication of its will that the subject should remain free from legislative control ; and further, that whether or not such inference is to be drawn, depends upon circumstances of each case ; (8) that when this sub- ject can only be treated adequately by uniform general regulations, States have no power to act, whether Congress has acted or not ; but if the matter is one of merely local interest, States may act, provided Congress has not acted ; (4) police powers of States not curtailed or denied by power 50 SYNOPSIS OF LECTURES. vested in Congress ; (5) railroads and telegraph lines pass- ing through States are subject to exclusive jurisdiction of Congress as to regulations of commerce, including taxa- tion ; (6) goods and passengers beginning transportation in one State, but destined, under single contract, to point lying beyond one or more other States, are part of inter- state commerce, and not subject to State regulation. A few more recent cases, particularly case known as Original Package Case ; discussion of this case. Power to regulate commerce with foreign nations is power under which constitutionality of protective tariffs is maintained ; statement of arguments upon this subject. Passage of act known as Inter-state Commerce Act of 1887, and importance in principle and in effect of that Act ; case of Welton v. Missouri, 91 D. S. — broad expression of Court in that case ; also County of Mobile v. Kimball, 102 U. S. ; these expressions, strictly obiter dicta; inferences drawn from these expressions as to power of Congress over subject of inter-state debts, credits, and collections ; dis- cussion of this view of extent of power of Congress. Doctrine in this connection, that United States Courts are not bound by decisions of State Courts in questions of general commercial law ; anomaly of this ; case of Swift v. Tyson, 16 Pet.; Oates v. National Bank, 100 U. S. Provision extending power of Congress to commerce with Indian tribes. Fourth specification of power of Congress — to establish uniform rule of naturalization and uniform laws on the sub- ject of bankruptcies. Contrast of this with articles of confederation. Views in No. 41 of Federalist. Same question as to this power, as power to regulate commerce " Is it exclusive in Congress V Case of Collet v. Collet, 2 Dallas, decided in 1792, and United States v. Vellaie, 2 Dallas, decided in 17P7 ; subse- quent decision by Chief Justice Marshall in Chirac v. SYNOPSIS OF LECTURES. 5 1 C7urac, 2 Wheat., holding power of naturalization exclu- sive in Congress. States may, however, legislate on general subject of alien- age, rights and duties of aliens. Power of Congress over the subject of bankruptcies. Two leading cases ; Sturges v. Orowninshield, 4 Wheat., and Ogden v. Saunders, 12 Wheat.; statement of each of these cases ; doctrines held by the Court. Question of the extent of meaning of words "bankrupt " and "bankruptcies" ; difference of meaning in English statutes and American ; conflicting views, and prevailing interpretation. Three general bankrupt Acts of Congress ; in 1801, in 1841, in 1867 ; general considerations in favor of general bankrupt Act. Power to coin money conferred by clause 5, Section 8. Denial of power to States ; whole power of coinage vested in Congress ; power but little discussed by Courts, except in connection with power to make paper money legal tender. Clause 6 of Section 8 provided for punishment of coun- terfeiting securities and coin of the United States ; view of Judge Story that this power is exclusive of the States. Section 3, Article III, giving power to Congress over gen- eral subject of treason against the United States ; precise language of Constitution. Definition of treason ; history of crime in England and this country ; limitation of treason here to single crime of levying war or adhering to enemies ; limitation as to mode of proof ; as to effect of conviction ; great departure from practice and principles prevailing in England. No constructive treason under Constitution ; contrast of punishment in former times and at present. Rule of common law ; meaning of attainder of treason. Questions of treason during civil war of 1861 ; new Acts passed during that period ; case of Bigelow v. Forrest^ 9 5 2 . SYNOPSIS OF LECTURES. Wall. ; significance of these provisions in contrast with English law. Question whether treason can be committed against one of the United States apart from the United States itself; case of People v. Lynch, II John. (N. Y.) ; doctrine of Su- preme Court in the Dorr case, and views of Rawle and Sar- gent in Commentaries ; case of John Brown in 1860. Seventh clause of Section 8, giving Congress power " to establish post offices and post roads." Language of articles of confederation ; first draft of con- stitution ; change subsequently mnde. Great question of construction of extent of power ; Act of Congress establishing Cumberland post road over Alle- ghany Mountains ; veto of President Monroe ; grounds of this veto. Present state of opinion upon this point. Case Ex Parte Jackson, 96 U. S. ; question involved in decision of Court. Clause 8, section 8, giving power of Cpngress "to pro- mote progress of science and useful arts by securing for limited terms to authors and inventors exclusive right to their respective writings and discoveries." Limitation to authors and inventors ; does not include mere introducers. Question, whether this power is exclusive in Con- gress ; practically Congress has exercised this power ex- clusively. Clause 9, section 8, conferring on Congress power to constitute tribunals inferior to the Supreme Court. Subject more fully treated in connection with Judicial article of the Constitution. Clause 10 of section 8, giving power to Congress " to de- fend and punish piracies and felonies committed on the high seas, and offences against the law of nations." This power under the confederation ; definition of the SYNOPSIS OF LECTURES. 53 terms "piracies" and "felonies," and "offences against law of nations;" meaning of the term, "high seas." This grant of power given with general purpose to clothe Congress with full power to regulale commerce with foreign nations. Wae Powers of Congress. Subject of utmost importance ; concerns very life of nation ; power to declare, maintain and conduct war. Grants of power contained in clauses from eleven to six- teen of section 8, of Article I. (11) " To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water :" (12) "To raise and support armies ; but no appropria- tion 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 land and naval forces : " (15) "To provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel in- vasions : " (16) " To provide for organizing, arming and disciplin- ing the militia, and for governing such part of them as may be employed in the service of the United States, re- serving to the States respectively the appointment of the officers and authority of training the militia according to the discipline prescribed by C6ngress." Four subjects embraced here ; (1) the declaration of war ; (2) raising and supporting of armies ; (3) providing and maintaining a navy ; (4) calling out of militia. General definition of war. Powers conferred by articles of confederation upon Con- 54 SYNOPSIS OF LECTURES. gress in this respect ; proposals in convention of 1787, limiting power of Congress except upon consent of two- thirds of all the States. Definition of "declaration of war;" effect of declara- tion ; Prize Cases, 2 Black, decided in 1863 ; statement of facts ; statement of legal questions — (1) Can the United States government coerce the States to subjection when arrayed in hostility to the United States « (2) Do the means adopted for suppressing rebellion constitute war in the sense of conferring belligerent rights upon the United States ? (3) Can such proceeding be called war ; and of the legal consequences of war before any legislative Act of Congress declaring war. Each of these questions decided by the Court in the affirmative ; definition of war by the Court ; decision of Court as to necessity of proclamation of war ; definition of insurrection and scope of President's power without special legislative authority. Decision of Court as to effect of proclamation of block- ade. Power to grant letter of marque and reprisal ; incidental to power to declare war ; same power conferred by articles of confederation. Relation of the United States to rebellion as decided by the Supreme Court ; (1) both that of a belligerent and a sovereign ; (2) power to declare war includes power to prosecute it by all ordinary means, including right to seize and confiscate enemies' property. Lecture VII. The Powers of Congress. — (Continued.) Second leading provision of war powers of Congress — *' To raise and support armies." Congress had no direct power to raise armies under the confederation, but only to make reqiiisitions upon the States, each State raising, arming, and equipping its own quota ; this provision proved entirely insufficient, and Congress became powerless ; hence radical change in Con- stitution by granting right to Congress not only to raise but to support armies ; supporting, held to include not only food, clothing and transportation, but all warlike equipment, and medical attendance, as well as construc- tion and maintenance of arsenals, fortifications, etc. ; in a word, anything to make an army effective for war ; under this provision Congress may purchase or manufacture arms, ammunition, etc., educate officers, provide bounties and pensions for soldiers and their families ; it has been claimed that under this power Congress may construct railroads for transportation of troops. Power to raise and support armies has important, ex- press qualification — "but no appropriation to that use shall be for a longer period than two years"; reason of this qualification ; its effect ; instances in our history of its application ; this qualification generally regarded as valuable against possible executive aggression ; views in Nos. 23 and 24 of Federalist. Provision of 13th clause — "to provide and maintain a navy"; similar power in Congress under the confedera- tion, but not so broad and effective. I4th clause gives power to Congress to make rules for S 6 SYNOPSIS OF LECTUttEB. government of land and naval forces ; much opposition to this grant in State conventions. *->* After granting war powers to Congress, Constitution next granted power of calling out militia to execute the laws, suppress insurrections and repel invasions ; this was followed by a general power of organizing militia, govern- ing such part as were in the service of the United States, etc.; particular controversy as to who is to decide upon the exigency requiring the calling out of the militia ; con- troversy on this point with New England States in 1812 ; case of Luther v. Borden, 7 Howard. Question, whether under its war powers Congress may resort to draft or conscription to till its armies ; power to raise and support armies seems to involve power to resort, if necessary, to conscription or other forcible means to compel citizens to enter and serve in the army ; some dangers in this power, but it is necessary to make effective the powers clearly granted. 17th clause "of eection 8, Article I, gives power to Con- gress over the district (not exceeding ten miles square) which may become the seat of the government, and over all places purchased for the erection of forts, arsenals^ dock yards, etc.; these provisions require no comment; they are exclusive in their terms ; question, can Congress establish a local legislature for the District of Columbia ; also has Congress power to tax the District of Columbia ; held that Congress has both these powers. 18th Clause of section 8, Article I, gives Congress power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the govern- ment of the United States or in any department or officer thereof." In general, grant of power implies grant of means for carrying power into execution ; this clause indicates spe- STN0P8I8 OF LECTURES. 57 cial intention to put implied powers beyond question ; clause adopted out of abundant caution ; controversy over words "necessary and proper; case of McCullough v. Maryland^ and decision in that case ; severe tests of this grant of power ; (1) purchase of territory of foreign pow- ers ; (2) embargo of 1807 ; no judicial decision as to right to purchase foreign territory ; decision as to embargo, that Congress has such power ; cases of acquiring foreign terri- tory in Louisiana and Florida ; position of Mr. Jefferson, acquisition of Texas, of Alaska, and of Northern Mexico. Section 9 of Article I, contains seven different clauses, Which are, in general, limitations or prohibitions on powers of Congress. First prohibition forbids Congress to restrain immigra- tion or importation into the States prior to 1808, but per- mits tax not exceeding ten dollars to be imposed ; this clause had reference solely to the slave trade. Second clause provides that right of Tiabeus corpus shall not be suspended unless when in case of rebellion and invasion the public safety might require it. Only controversy as to who has power to suspend writ in cases specified, or to determine when such cases have arisen ; two views, (1) that the power is exclusively in Congress ; (2) that it is in the executive, either alone or concurrently with Congress ; no suspension ever author- ized by Congress, but during civil war of 1861 President Lincoln assumed the power ; case of Ex Parte Merryman, and decision and views of Chief Justice Taney. This provision is found in section which deals exclusively with the powers of Congress, and probably the weight of authority is in favor of power of Congress to suspend the writ. Third clause of section 9 declares that no bill of attainder or ex post facto law shall be passed ; distinction between bills of attainder and bills of pain and penalties ; case of 5 8 SYNOPSIS OF LECTURES. Fletcher v. Peck, 6 Cranch ; case of Gummings v. Missouri, 4 Wall. ; ex parte Garland, 4 Wall. ; statement of these cases. The inhibition of ex post facto laws applies only to criminal laws. Definition of ex post facto laws in Calder v. Bull, 3 Dallas ; case of Watson v. Mercer, 8 Pet., and opinion of Judge Story. Some further distinctions regarding ex post facto laws. 4th clause of section 9 forbids laying of capitation or other direct tax, except in proportion to the census ; and 5th clause forbids laying of tax on articles exported from State or giving preference to ports of one State over those of another, etc. ; provisions intended to. secure perfect equality and freedom of trade between the States. Sixth clause forbids drawing money from treasury, ex- cept under appropriations made by law, and requires regular statement of receipts and expenditures. Seventh clause provides that no title of nobility shall be granted, and that no person holding any office under the United States shall, without the consent of Congress, accept any present from any king, prince or foreign state. Fourth clause of section 3 of article 4 regulates the manner of admission of new States into the Union. Second clause of same section gives Congress power over the territory and other property of the United States ; formerly conceded that this power applied to the govern- ment of the territories of the United States, so long as they remained territories ; new doctrine in 1850 ; statement and effect of this doctrine ; chiefly concerned the questions of slavery ; case of Dred Scott v. Sandford, 19 How. ; state- ment of this case, and of decision of majority of Court, and substance of dissenting opinions ; abolition of slavery SYNOPSIS OF LECTURES. 59 has removed political interest and judicial importance of this clause. Fourth section of article 4 guarantees to every State a republican form of government, and protection from in- vasion, and on application of legislature, or of the executive when the legislature cannot be convened, from domestic violence. History of this provision in the convention of 1787 ; views of Madison in convention of 1787, and in Federalist ; case of Luther v. Borden in relation to this question ; case of Texas v. White, 7 Wall. ; statement of this case and its decision ; well settled now that test of republican form of government in respect to the original thirteen States is the form of government which these States had at time of adoption -of the Constitution ; statement by Mr. Calhoun of this doctrine ; views of Mr. Reverdy Johnson ; views of Prof. Pomeroy. Protection of the States against domestic violence ; ques- tion whether if domestic violence arose, and neither the legislature nor the executive applied for aid, and violence seemed likely to succeed, the United States might intervene. Article 5 provides the mode of amending the Constitu- tion. Two modes provided ; (1) Congress by two-thirds vote of each House may propose amendments ; or (2) the legisla- tures of two-thirds of the States may demand a convention to propose amendments ; in both cases amendments must be adopted by the legislature of three-fourths of the several States or by conventions in three-fourths of the States ; views in No. 43 of Federalist. Question here, whether veto power of President applies to amendments to the Constitution ; decided in Rollings- worth v. Virginia, 3 Dallas, that it does not. Peculiar views of Prof. Norton upon the general effect of these provisions for amendments ; examination of these views as affecting the sovereignty, or rights and powers of the States under the Constitution. Lecture VIII. The first Ten Amendments to the Constitution. Discussion in the several State conventions which ratified the Constitution of 1787, as to whether certain rights re- garded as fundamental were sufficiently secured against denial by the Constitution ; other matters in addition to restrictions upon the power of the general government, re- garded essential to completeness of Constitution ; these views took the form of proposed amendments, being pro- posed concurrently with the ratification of the Constitution; great number of amendments proposed ; separate bills of rights proposed by Virginia, New York, and North Caro- lina ; amendments proposed by all the States except Dela- ware, New Jersey, Georgia, and Connecticut ; many of the amendments identical in substance. Strong effort in convention of 1787 to insert provision for juries in civil cases ; position of Mr. Gerry of Massachu- setts, and of Mr. Mason of Virginia ; action of the conven- tion ; refusal of Mr. Mason to sign the Constitution ; state- ment of his reasons. Action of Massachusetts convention ; proposed nine amendments. Congress at its first session, 1789, proposed twelve amend- ments to the Constitution ; last ten only were adopted •, first two amendments rejected, relating to population re- quisite for representatives, and compensation of senators and representatives. Views of Judge Story as to general causes leading to these amendments ; statement by him of the topics on which amendments were sought ; views of Hamilton, in No. 84 of Federalist, on bills of rights ; jealousy of the people demanded amendments in nature of bill of rights ; SYNOPSIS OF LECTURES. 6 1 North Carolina made its ratification conditional upon adop- tion of the amendments proposed. First judicial decision upon any amendment in Barron v. Baltimore, 7 Pet., involving provisions of the 5th amendment ; opinion by Chief Justice Marshall ; held that the 5th amendment operates upon power of general gov- ernment, and not upon the States ; that the several amend- ments are intended to restrain the exercise of power by various departments of the general government. Case of Livingston v. Moore, same volume, involving construction of 9th amendment ; held that amendments did not apply to the States, but only to the general gov- ernment. In Presser vs. Illinois, 116 U. S., involving second amendment ; held again that this amendment was restraint only upon Congress. Late case of Spies v. Illinois, 124 U. S , involving TVth, Vth and Vlth amendments, held that first ten amendments were not intended to limit powers of State governments, but to operate on national government alone ; contention in this case that the amendments were in the nature of bills of rights, disapproved ; regarded as restrictions upon the United States ; these amendments constitute in substance bill of rights. First amendment prohibits Congress from making any law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the rights of the people peaceably to assemble and petition the government for redress of grievances." Views of Judge Story upon the first clause of this amendment. Second clause relating to freedom of speech, and of the press. Nature and limitations of this freedom ; different prop- osition in convention of 1787; remarks of Chancellor Kent. 62 SYNOPSIS OF LEOTUSES. Last clause of first amendment guaranteeing right of people peaceably to assemble and petition the government. This provision borrowed from the declaration of rights in England daring revolution of 1688; principle, that peti- tions of this nature are privileged so that petitioner is not liable either civilly or criminally, unless he has acted maliciously. Second article of amendment declaring rights of people to keep and bear arms. Object, to secure an effective militia ; provision borrowed from bill of rights of 1688 in England ; right to keep and bear arms, essential right according to English and Ameri- can ideas ; not subject of much controversy ; limitation, as to right of Congress to pass laws forbidding carrying dangerous or concealed weapons, or accumulation of large quantities of arms for improper purposes. Third amendment providing that no soldiers in time of peace shall be quartered in any house without the consent of the owner, nor in time of war but in a manner prescribed by law." The first part of this amendment aimed at an evil now obsolete, but on 1787 the memory of abuses in England was fresh. Fourth amendment— " Security against unreasonable searches and seizures ; prohibition of warrants, except upon probable cause supported by oath or affirmation, and description of place and persons or things to be seized." Affirmation here of great doctrine of common law ; aimed particularly against what are known in England as general warrants; description of such warrants and their evils; case of Money v. Leach, 3 Burroughs, 1742 ; case of Entick v. Carrington, 1765, 19 How. State Trials. Writs of Assistance, and James Otis, similarity to En- glish general warrants. Searches allowed under well-defined restrictions ; pro- hibition of Constitution only against unreasonable SYNOPSIS OF LECTURES. 63 searches ; restrictions (1) must be expressly authorized by law ; (2) must issue after showing made before judicial officer on oath ; (3) warrant must particularly specify place to be searched ; (4) other specifications required ; exam- ples ; remarks of Judge Cooley. Case of Boyd v. United States, 106 U. S. ; elaborate dis- cussion of this amendment, and its effect ; conclusions of Court ; held that this amendment must always be con- structed liberally in favor of personal liberty, Fifth Amendment relating to presentments of Grand Juries, prohibition against putting citizen twice in jeop- ardy of life or limb, compelling him to be witness against himself, or deprived of life, liberty or property without due process of law ; and forbidding private property to be taken for public use without compenstation. Security of indictment or presentment by Grand Jury in all criminal trials, except those of minor character ; proc- ess in some States by proceeding by information ; defini- tion of "information;" case of Ey Parle Wilson 114 U. S. ; definition of " infamous crime ;" decision of Court,. Same question involved in Ex Parte Bain, 121 U. S. ; amendment always construed with great strictness in favor of liberty of citizens. Provision of this amendment as to being put twice in jeopardy of life or limb. Meaning of this phrase ; statement of various circum- stances constituting jeopardy of life or limb. Next provision of this amendment protecting citizen against being compelled to be a witness against himself. Well known common law privilege ; case of Boyd v. United States. Provision protecting citizen against deprivation of life ; liberty, or property without due process of law. Meaning of phrase "due process of law;" in criminal matters ; in civil matters ; Dartmouth College case, and Mr. Webster's definition. Due process of law does not exclude summary proceed- 64 SYNOPSIS OF LECTURES. ing as in matter of taxes, or proceedings under right of eminent domain ; views of Judge Story. Last provision of this amendment, forbidding taking private property for public use without just compensation. Universal incident of sovereignty, power to take private property for public use. Two grounds for this ; (1) by virtue of power of taxa- tion ; (2) by virtue of right of eminent domain ; amend- ment applies t>nly to exercise of right of eminent domain ; eminent domain compels citizen to contribute more than his proportion to public use ; private property cannot be taken under mere pretence of public use ; case of Mitchell v. Harmony, 13 Hun. Provisions of sixth article of amendment relating to right of accused to speedy and public trial by impartial jury of State or district where crime has been committed ; to be informed of the nature and cause of accusation ; to be confronted with witnesses ; to have compulsory process for obtaining witnesses ; and assistance of counsel. This article considered in connection with clause of Con- stitution, section 2, article 3, requiring trial of all crimes, except impeachment, by jury, etc. Great sensitiveness of people on this point, owing to example and experience in England ; history of incidents of criminal prosecutions in England and France. Seventh amendment securing trial by jury in civil cases, in any suit at common law where the value in controversy shall exceed $20 and forbidding retrial of fact once tried by a jury, except according to the rules of common law. Scope of terms "suits at common law," and "rules of common law." Desire for this amendment arising from grant to the Su- preme Court in constitution of appellate jurisdiction, "both as to law and fact"; discussion in convention of 1787 ; views in Nos. 81 and 83 of Federalist ; case of Par- sons v. Bedford, 3 Pet.; conclusion, only two ways in which case once tried by a jury can be re-examined in SYNOPSIS OF LECTURES. 65 Courts of the United States ; (1) by granting new trial in the same Court, or (2) by appellate Court granting new trial for error of law. ' Case of The Justice v. Murray, 9 "Wall. Eighth amendment forbidding excessive bail, excessive fines or cruel or unusual punishments. Exact transcript of clause in bill of rights of 1688 in England ; striking evidence of jealous fear felt in 1789, for practices which had prevailed so long in England and Eu- rope. Ninth amendment declaring enumeration of certain rights in Constitution not to be construed to deny or disparage others retained by the people. Remarks of Judge Story ; views in No. 84 of Federalist. Tenth Amendment, as to reservation to States of all pow- ers not granted to United States, nor prohibited to the States. Notable instance of determination of people in 1789 to secure to States all powers not granted to general govern- ment ; proposition in Congress to insert word " expressly " before word " delegated" in this amendment ^remarks of Mr. Madison. Corresponding clauses in articles of confederation, the word "expressly" being there inserted. This amendment proposed by convention of Massachu- setts at instance of Chief Justice Theophilus Parsons ; value of this amendment. SYNOPSIS OF LECTURES ON THE CONSTITUTION OF THE UNITED STATES Before the School of Law of Cornell University SECOND COURSE NINE LECTURES The Executive Department, — Its Constitution, Powers and Limitations II The Judicial Department, — Its Place, Structure, Powers and Jurisdiction LECTURES. Subject.— The Constitution of the United States, consid- ered in two courses of lectures, and under four principal heads. First. — The General Conception, Theory and Framework of the Constitution, including especially the Relations of the States to the United States, and the Nature of the Resulting Union and Government. Second. — The Legislative Department of the Govern- ment, or The Powers of Congress, and the Separate Powers of each House. Third. — The Executive Department, its Constitution, Powers and Limitations. Fourth. — The Judicial Department, its Place, Structure, Powers and Jurisdiction. The last two of these titles will occupy the present course of lectures, (1) The Executive Department, its Con- stitution, Powers and Limitations ; and (2) The Judicial Department, its Place, Structure, Powers and Jurisdiction. The .Executive Department — Its Constitution, Powers and Limitations. Lecture I. 1. Kesume of Preceding Course. (a) General form, framework, and idea of the Federal Constitution ; (h) Legislative powers, including the powers of the two separate Houses of Congress. 2. The Executive Power and its Depositary — The Presi- dent. (a) Division of Government into three departments — Legislative, Executive, Judicial, not contested or opposed in the Constitutional Convention; (b) Difficulty lay in defining and limiting each department. 3. Grants of Executive Power, and Designation of its Depositary. (a) Article II of Constitution ; (b) Section 7, Article I — Veto power ; (c) The Xllth Article of the Amendments — Mode of election of President and Vice-President ; (d) The foregoing provisions form complete text of Constitu- tion, powers and limitations of Executive Department. 4. Exact Terms of the Grants of Legislative, Executive and Judicial Powers, Compared. SYNOPSIS OF LECTURES. 5 5. Separate Executive Head of Government — A depart- ure from the System of the Confederation. (a) System of the Confederation, and its results; (b) Causes of the change adopted in the Constitution. 6. Pour Plans orProjetsof a Constitution Submitted in Convention of 1787. (a) Resolutions of Mr. Randolph, of Virginia ; (b) Draft of government by Mr. Pinckney, of South Carolina ; (c) Propositions of Mr. Patterson, of New Jersey ; (d) Plan of government of Mr. Hamilton, of New York. 7. Examination of Each Plan in Respect to the Execu- tive. (a) All the plans agree in establishing a Chief Executive ; (b) Mr. Randolph's plan left it to be determined by the Convention of how many persons the Executive should consist ; (c) Mr. Pinckney' s and Mr. Hamilton's plans limited the Executive to one person ; (d) Mr. Patterson's plan contemplated the choice of more than one person. 8. Discussion and Votes in Convention upon Question of Single or Plural Executive. (a) First determination of Convention limiting Executive to one person adhered to through all the stages ; (b) Vote of Convention upon this issue. 9. Views of those who favored a Dual or Plural Executive. (a) Experience of tyranny embodied in the King ; (b) Substantial reasons in favor of a single Executive ; (c) 6 SYNOPSIS OF LECTURES. Views of Judge Story and Chancellor Kent ; (d) Special results to be apprehended from a plural Executive ; (e) Essentials for good administration. 10. Further Discussion of Advantages of Single Execu- tive. (a) Views of the Federalist ; (b) General conclusion. 11. Duration of Term of Office of Executive. (a) Plans of Mr. Randolph, Mr. Pinckney and Mr. Pat- terson contained no specification of the length of term ; (b) Mr. Hamilton's plan proposed "During good behav- ior;" (c) The latter proposition not seriously considered, though supported at first by high authority ; (d) Change of view of Hamilton ; (e) Limitation of seven years first adopted ; (f) This limit retained in the first draft of the Constitution, and in the draft of Committee of Detail; (g) Changed in the draft from Committee of Revision to four years. 12. Original Proposition of Seven Years, Coupled with Ineligibility for a Second Term. (a) These two features both retained until revised draft ; (b) Revised draft fixed duration at four years and omitted ineligibility ; (c) Vote of the Convention on final question ; (d) Views of Federalist ; (e) Of Judge Story. 13. Result of Experience upon this Point under the Constitution. (a) Strong present sentiment in favor of longer term and ineligibility for second term ; (b) Reasons for this result. SYW0P8I8 OF LECTURES. 7 14. Nature of Executive Power. (a) The President, an independent, co-ordinate depart- ment of government ; (b) His constitutional executive functions not controllable by any other department ; (c) President possesses political discretion ; (d) Meaning of terms " discretion " and " political " here ; (e) Marbury v. Madison (1 Cranch, 137). 15. Consideration in this connection of Section 8 of Article I, Paragraph 18. (a) This clause neither enlarges nor diminishes the con- stitutional executive powers of the President ; (b) Proper force and effect of this clause ; (c) Opinions of Prof. Pomeroy ; (d) Slate of Mississippi v. Johnson (4 Wall., 475). ' 16. Powers conferred by Article II on President fall into three classes. (a) These functions and powers completely conferred by the Constitution itself ; (b) The most important of this class, the powers of the President in the conduct of foreign affairs ; (c) In the exercise of this class of powers discre- tion of President absolute, unlimited by other departments. 17. Second Class of Executive Powers. (a) Those dependent for practical existence on some previous legislation ; (b) Example, power of President, as Commander-in-chief of army and navy ; (c) Necessary for Congress to create army and navy ; (d) Whenever there is an actual army and navy, the President's powers as Com- mander-in-chief are absolute and unlimited, as in the first class of powers. 8 SYNOPSIS OF LECTURES. 18. Third Class of Executive Powers. (a) Dependent for occasion of exercise and extent on legislation ; (b) Congress also has power to specify in detail in this class the mode in which executive powers shall be exercised ; (c) General result, executive power, properly speaking, always absolute in President, but occa- sion, manner and extent of its exercise in many cases dependent on legislative action. 19. Greatest Single Executive Power of President, the Power of Appointment to Office. (a) This power covers appointment of ambassadors, public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for by the con- stitution ; (b) Congress may, however, vest appointment of "inferior officers " in President alone, in courts of law, or in heads of Departments ; (c) Meaning of phrase "infe- rior officers;" (d) United States v. Oermaine (99 U. S., 508). 20. Officers whose appointments are " otherwise provided for" in the Constitution. (a) President and Vice-President ; (b) Presidential elect- ors ; (c) Members of Senate and House of Bepresenta- tives ; (d) Officers of each House of Congress. 21. Great Body of Public Officers Dependent for Exist- ence, Functions and Appointment upon Congress and President. (a) Congress cannot directly appoint officers ; (b) May vest their appointment in President, or courts of law, or SYNOPSIS OF LECTURES. 9 heads of departments ; (c) Only exception, the appoint- ment of the officers of each House of Congress. 22. Consideration of Extent and Effect of Appointing Power in President and Senate. (a) In Constitutional Convention and State Conventions great fear of influence of this power ; (b) Views of Feder- alist in favor of vesting this power in the President. Lecture II. 1. Further Views of Federalist upon Appointing Power. (a) Pear of excessive influence of President over Senate ; (b) Views of Federalist on this point ; (c) Views of Luther Martin ; (d) Of Edmund Kandolph ; (e) Views of Federal, ist prevailed. 2. Practical Result of Relations of President and Senate to Appointments. (a) Fears generally entertained in 1787 as to over-influ- ence of President, not realized ; (b) Present result, Senate has a full share, if not more, of influence intended ; (c) Early view that the Senate, by force of the word "advise," might suggest appointments to President ; (d) This view never acted upon ; (e) Views of Judge Story on relative duties of President and Senate ; (f) Views of Judge Cooley as to actual present relations. 3. Power of President to Remove from Office under the Constitution. (a) Constitution entirely silent on this question ; (b) Power, if it exists, inferred or implied ; (c) Inference from fact that no officers except judges have life tenure, or "during good behavior," that power of removal exists somewhere ; (d) Question is, where or with whom ; (e) First question, if power exists, does it rest with President or Senate, or with President alone ? (f ) Second question, if it belongs to the Executive, can Congress fix such tenure of office as to limit the President's power of removal ? SYNOPSIS OF LECTURES. n 4. Early views upon these questions. (a) Federalist maintains that President and Senate must unite in removals. 5. Views after Adoption of Constitution. (a) Argued that power of removal is a necessary part of executive power, and essential to due execution of laws ; (b) Question arose in House of Representatives in 1789 ; (c) View of Mr. Madison that President would be impeachable for wanton removal of meritorious officers ; (d) Remarks of Judge Story upon this discussion ; (e) Decision and vote of House of Representatives ; (f) De- cision and vote of Senate ; (g) This precedent steadily followed since ; (h) View of Chancellor Kent ; (i) Of Prof. Pomeroy. 6. Question of Power of President during Recess of Senate to remove Officers and fill such Vacancies. (a) Question of power of appointment rather than of power of removal ; (b) Possible or logical results of con- ceding such power to President ; (c) Views of Prof. Pomeroy ; (d) Argument based upon the word "happen ;" (e) Views of Prof. Pomeroy. 7. Dangers Apprehended in 1789, not Realized in the Form then Feared. (a) Present abuses of appointing power, exercised for partisan purposes ; (b) Statute of 1867 restricting his power during recess of Senate ; (c) Its motives and pro- visions ; (d) Civil Service Act of 1883 ; (e) Its occasions, methods, and aim. 12 SYJTOPSIS OF LECTURES. 8. Provision of Constitution requiring President to "Take Care that the Laws be faithfully executed." (a) Application of this to different classes of duties im- posed on the President; (b) To cases where President exercises political discretion ; (c) To cases where he is simply required to enforce a statute involving no dis- cretion. 9. Question whether President may judge of Validity of Statutes and Act upon such Judgment alone. (a) Effect of his oath considered ; (b) Presumption in favor of statute ; (c) True method of testing validity of statutes ; (d) President bound to execute laws until set aside by courts ; (e) Consideration of veto power in this connection; (f) Revolutionary character of power sum- marily to nullify acts duly passed. 10. Powers of the President in regard to Foreign Affairs. (a) Language of Article II ; (b) Additional provision in Article VI respecting force of Treaties ; (c) Control over all foreign relations vested in President, or in President with the senate ; (d) Neither Congress nor judicial depart- ment have any control here ; (e) Breadth and importance of this power ; (f) The President, in all cases, is the actual power here through whomsoever, as agent, he may act ; (g) His power in respect to negotiations with other nations ; (h) President cannot declare war, but may create a situation which may compel war ; (i) Hence, he holds practically the keys of peace and war ; (j) This is a political function of the President for which he is respon- sible only politically. SYNOPSIS OE LECTURES. 13 11. The Treaty-making Power, as regulated by Article II, considered. (a) In what respect and to what extent shared with the Senate ; (b) All preliminary negotiations wholly within the power of President ; (c) President prepares all treaties and only submits them when fully prepared, to the Senate ; (d) This power includes all kinds of treaties; (e) Implied limitation that no treaty can abridge any constitutional grant of power to any department or officer of the govern- ment ; (f) Legal effect of treaties under the Constitution ; (g) Foster v. Neilson (2 Pet., 253). 12. History of this Provision in the Constitutional Con- vention. (a) Not contained in the first draft of Constitution ; (b) Question of requiring two-thirds of whole number of Senators or two-thirds of those present ; (c) Provisions in Articles of Confederation in this respect ; (d) Grounds of opposition to present provision, in 1789 ; (e) General con- clusion as to its wisdom. 13. President's Power as Commander-in-Chief of the Army and Navy. (a) Importance of this power ; (b) Advantage of placing it in the hands of a single person — views of Judge Story ; (c) Grounds of objection to this provision ; (d) This power purely executive, discretionary and political ; (e) Fxparte Milligan (4 Wall., 139) ; (f) Function of Congress in re- spect to army and navy ; (g) This power exclusively vested in President ; (h) Power of President, as Commander-in- Chief, in peace and in war, contrasted ; (i) Case of United States v. Miason (16 Pet., 291); (j) United States v. Freeman (3 How., 556). 14 SYNOPSIS OF LECTURES. 14. Power of President to " Grant Reprieves and Par- dons for offenses against the United States, except in cases of Impeachment." This grant perfectly general and unrestricted except in the single matter of impeachment ; (b) Definition of a pardon by Chief Justice Marshall in United States v. Wilson (7 Pet., 150) ; (c) Definition of a reprieve ; (d) This power to be construed in light of English law and practice at adoption of Constitution ; (e) In general, Presi- dent may grant all kinds of pardons and reprieves known to English law, in 1789 ; United States v. Wilson (7 Pet., 150) as to extent of this power ; (g) Ex parte Welles (18 How., 307) ; (h) Question, in latter case, whether President can grant a conditional pardon ; (i) Definition of condi- tional pardon ; (j) President may grant such pardon ; (k) Ex parte Garland (4 Wall., 333) ; (1) General result of the authorities. Lecture III. 1. Question, whether President can issue a General Pardon, or what is known as an Amnesty, affecting a class of persons. (a) Two kinds of general pardons ; (b) One kind, re- lieves an offender of the penalties of all crimes whatever ; (c) Second kind relieves all persons belonging to a described class of offenders ; (d) " Amnesty " not a term of legal art ; (e) United States v. Klein, (13 Wall., 128), which holds the President has power under express statute of Congress to grant amnesty to classes of persons ; (f) Exact scope of United States v. Klein ; (g) Opinion that President may grant amnesty without special authority of Congress. 2. Exception to power of Pardon — Cases of Impeachment. (a) Why this exception was made ; (b) Importance of impeachment in holding check upon departments of govern- ment ; (c) Unwillingness of framers of Constitution to allow President to override this control ; (d) Opinion of Judge Story ; (e) This exception a distinct departure from English precedent ; (f) Bearing here of limitation upon judgment after conviction in impeachment ; (g) Principal question in the Constitutional Convention, in whom the power should be vested ; (h) Alternatives, the Senate, the Supreme Court, the President ; (i) Wisdom of conclusion reached. 3. The Yeto Power. (a) This power expressed in first or legislative Article 1 6 SYxropsrs of lectubes. of Constitution ; (b) Instance of intermixture of powers of two departments ; (c) Why this was inevitable ; (d) Other instances of similar intermixture. 4. Substantial Provisions Regulating the Veto Power. (a) Section 7, Article I ; (b) History of this provision in the Constitutional Convention ; (c) No serious question of propriety of some negative or veto ; (d) Question was, whether absolute or qualified ; (e) Another question, whether it be vested in President, or in President and some other department ; (f) Question between qualified or absolute negative, determined in Convention by a vote of eight States against two in favor of qualified negative ; (g) Question of what fraction of each House required to pass bill over President' s veto ; (h) First fixed at three-fourths, finally at two-thirds ; (i) Project of uniting Supreme Court with President in Veto power ; (j) Defeated by vote of four States against three, two being divided ; (k) Finally rejected entirely by vote of eight States against two. 5. Discussion of Value and effect of Veto Power. (a) Historically, it has been exercised continuously in this country ; (b) In England, not exercised since reign of Queen Anne, in 1707 ; (c) Eeasons for this difference of practice ; (d) Substantial agreement of sentiment in favor of value of Veto power. 6. The Veto Power continued. (a) Real nature of this power ; (b) A second appeal to the legislature itself ; (c) A strictly qualified veto ; (d) Congress not deprived of absolute power of legislation ; (e) Two-thirds of both Houses have absolute power of legisla- 87&0PSIS OF LEOVUItM. *? tioli ; (f) Remarks of Judge Story in 1833 ; (g) Veto power then regarded with favor ; (h) No instance up to that time of overriding Veto ; (i) Specific vetoes almost always ap- proved ; (j) Since 1833, vetoes more frequent, especially by Presidents Tyler and Johiison ; (k) Examples of im- portant vetoes in recent years ; (1) Vetoes repeatedly over- ridden since 1833 ; (m) Proposition to unite the Supreme Court with the President in the exercise of Veto power ; (n) Danger and impropriety of this; (o) Jefferson's opin- ion. I-, Specific Provisions Intended to Prevent Possibility of Converting Qualified Negative into Absolute One. (a) President might fail to act upon a bill ; (b) Eequired tb return it within ten days, otherwise it becomes a law ; (c) Congress might terminate the session and prevent re- turn of bill ; (d) Hence the provision, " unless the Con- gress by their adjournment prevent its return, in which case it shall not become a law " ; (e) Rulings and decisions upon these iatter provisions ; (f) Additional provisions as to "orders, resolutions, and votes;" (g) Effect of these provisions as contrasted with bills. 8. Impeachment. (a) The provision contained in Section 4 of Article II ; (b) Limitations of judgment in cases of impeachment^ found in Section 3 df Article I ; (c) These two provisions Cover whole subject of impeachment under Constitution ; (d^ Power of impeachment vested in House of Represent tatives ; (e) Trial of impeachments in the Senate ; (f) In Constitutional Convention, removal of President on im- peachment adopted by tote bi eight States against two ; (g) Officers silbject to impeachment ; (h) President, Vice- Pfesideiit, afld all Civil Officers j (i) Contrast in this respect to law and. practice of England. 1 8 SYNOPSIS OF LECTURE8. 9. Who are Meant in Constitution by "Civil Officers." (a) Different meanings of the word "civil;" (b) Held here to include all officers under government of United States, executive or judicial, with exception of officers of army and navy ; (c) Reason for limitation to "Civil Offi- cers " ; (d) Necessity of more summary method of dis- cipline in military and naval affairs ; (e) Question in 1799, whether a Senator was a civil officer under this clause ; (f) Decision of Senate that he was not ; (g) Ground of this decision, and view of Judge Story; (h) Particular lan- guage used in Constitution ; (i) No implication here that President and Vice-President are civil officers ; (j) Views of the Federalist, and debates in the Convention. 10. Offenses for which Impeachment Lies under Consti- tution. (a) Constitution specifies "Treason, bribery, or other high crimes and misdemeanors" ; (b) Treason defined by Section 8 of Article III of Constitution ; (c) Definition of bribery, determined by reference to the common law ; (d) What are " high crimes and misdemeanors ? " ; (e) Not all legal offenses or crimes ; but only "high crimes and mis- demeanors ; " (f) View strenuously and widely maintained that it embraces only indictable offenses ; (g) Reference to impeachment in England, upon this point ; (h) Contrary view, that it covers all serious or important breaches of official duty ; (i) Grounds and examples illustrating this view ; (j) Views of Prof. Pomeroy and Judge Story ; (k) Applicability to impeachment of ordinary rules of evi- dence, etc. 11. Question whether any Acts are Impeachable except those done under color of Office, and whether a person can be proceeded against by Impeachment after he has ceased to hold Office. 8Y2T0P8IS OF LE01 UBE8. 1 9 (a) Comment of Mr. Rawle ; (b) View of Judge Story ; (c) Questions not yet absolutely settled by decisions ; (d) Tendency of best opinion toward conclusion that high crimes and misdemeanors embrace substantially all impor- tant breaches of public duty, whether indictable or not, and that such high crimes and misdemeanors have strict reference to official, in distinction from personal acts ; (e) Further conclusion that impeachment will lie against a person who has committed an impeachable offense, whether he is still in office or not ; (f) If out of office, judgment would be limited to disqualification from hold- ing office. 12. Mode of Election of President and Vice-President. (a) All the four plans offered in Constitutional Conven- tion omitted any provisions on this point, except the plan of Hamilton, which simply provided that the President should be elected by electors, chosen by electors, chosen by the people ; (b) Resolutions of Mr. Randolph as re- ported June 19, provided that the President should "be chosen by the National Legislature ; " (c) This provision remained unchanged in resolutions reported July 23d and 26th ; (d) First draft of Constitution of Committee of Detail provided the President " shall be elected by ballot by the legislature ; " (e) Special report of Committee of Eleven, September 4th, reported substantially the original provisions of the Constitution ; (f) Statement of those provisions as found in the third paragraph of Section 1 of Article II. 13. Strong Sentiment of Convention Against Direct Popular Vote for President. (a) Debates in Convention ; (b) Discussions of the Fed- eralists ; (c) Debates in State Conventions ; (d) First prop- ^P SYNOPSIS OF LEQTIIRE&- ositiqn, election by Congress ; (e) Grounds ot them opinions -^-great jealousy of a consolidated government and fear on part of smaller States of loss of influence ; (f) This influ- ence seen in final provision for choice by House of Repre- sentatives on failure of electors. 14. Real Thought and Purpose of Convention, (a) To remove the election from the people ; (b) To commit it to a distinct body having no other function ; (c) Which body should make an independent choice ; (d) Futility of the provisions to that end ; (e) Remarkable reversal of result arrived at ; (f) Eulogies of the Federalist upon method adopted in the Constitution ; (g) System prevailed until after contest between Jefferson and Burr in 1801 ; (h) Xllth Amendment proposed in 1803 and became part of the Constitution in 1804, 15. Provisions of 2£IIth Amendment. (a) Statement in detail ; (b) Original aim of Constitu- tion sought s to be reached by this amendment ; (c) Total failure of attempt to exclude direct influence of People ; (d) Reflections upon this result ; (e) Democratic instinct and feeling has effected its will, spite of constitutional forms; (f) How the people really choose the President and Vice-President ; (g) Statute of January 19, 1886, regulating the mode of counting the electoral vote in Congress ; (h) Statute of February 3, 1887, regulating succession to office of President, in cases of resignation, death, removal or disability. 16. General Review of the Topic of Executive Ppwer. SYNOPSIS OF LECTURES. 21 (a) Great success of Constitution in solving the problem presented ; (b) Problem of avoiding a kingly Executive on the pne hand, and a many-headed council on the other ; (c) President, not an elective monarch, but acting under strict responsibility to public censure and to impeachment ; (d) Still the President, not a mere official form without substance of power ; (e) His great functions clothe him with as much power as can safely be trusted to one man ; (f) On the whole, the constitution of the executive depart- ment presents at least one of the finest results of the American system of government, The Judicial Department — Its Place, Structure, Powers and Jurisdiction. Lecture IV. 1. Order of Development of Judicial Department. (a) The Judicial — third and last— department of govern- ment prescribed by Constitution ; — last in order of speci- fication in Constitution, as well as latest in development of government generally ; (b) Statement of evolution of regular or constitutional government. 2. Relative Value or Bank of Judicial Department. (a) Judicial department, nearest and most interesting to lawyers ; (b) Of greatest importance, also, to all citi- zens ; (c) Sir Henry Maine's remark that our Supreme Courtis "a virtually unique creation;" (d) Criticism of this remark ; (e) Evidences of pre-existing types of this Court in American history ; (f ) Work of the late Prof. Alexander Johnston, of Princeton ; (g) Like service, in greater detail, by Prof. Rogers, of University of Michigan ; (h) Result, that office of our Supreme Court is an his- torical continuation of methods in vogue before 1787. 3. Evidences in Support of this View. (a) Sir Henry Maine's remark that functions of Supreme Court under Constitution " arise primarily from its very nature," a perfectly accurate observation ; (b) Supreme Court is " a virtually unique creation," if by this is under- stood that no such function had ever before been devolved 8Y&0PSI8 OF LECTURES. 23 on the judiciary of any great nation, and was unknown at that day in Europe, and is unknown to-day ; (c) Example of German Court of last resort — Das Beichsgericht ; (d) Of French Court of last resort,— Cour de Cassation ; (e) Example of Switzerland, Spain and Belgium ; (f) Re- mark of Prof. Rogers, that there is no Court in Europe " with authority to pass upon the constitutionality of national laws." 4. Contrast of our Constitution in this regard. (a) Examples of similar judicial powers exercised in this country prior to 1787 ; (b) Supreme Court of New Jer- sey, 1780; (c) Supreme Court of Rhode Island, in 1786, in Tr&aett v. Weeden; (d) Court of Errors, in South Carolina, in 1792, in Bowman v. Middleton; (e) Result, that the fed- eral judicial power followed lines traced by antecedent American practice. 5. The Judicial Article of Constitution Extending Judi- cial Power to all cases in Law and Equity arising under the Constitution, Laws, and Treaties of the United States, was no more than the Application to the Nation of Judi- cial Power as exercised familiarly in the Colonies and States prior to Constitution. (a) Expression of Chief Justice Marshall in Marbwy v. Madison upon this point. 6. Importance of Considering Final Causes of Leading Provisions and Features of our Constitution. (a) Specially important to law students before com- mencing practice ; (b) If habit is not acquired now, it is not likely to be acquired later ; (c) Illustrations in lectur- er's own experience. 24 SYmPSIB DP LECTUBM. 7i Examination of Text of Constitution Establishing Judicial Department (a) Its brevity; three sections-^-six paragraphs ; three paragraphs only deal with jurisdiction and constitution of judicial department ; (b) These three paragraphs contain Only twenty-six printed lines, or about 230 words. 8. To this must be added the Xlth Amendment, limit- ing the extent of Judicial Power in one respect, (a) Brevity of this Amendment; (b) Only amendment of the judicial department since adoption of Constitution 9. Re-statement of True Relations of the Three Depart- ments of Government., (a) Limitations of meaning of phrase, "independent and co-ordinate;" (b) Proper meaning attached to this phrase; (c) Examples of interdependence of departments ; (d) Virtual supremacy in some respects of the judicial de- partment; (e) Giving force and point to Sir Henry Maine's remark already quoted* 10. Closer Examination of Text of Three Paragraphs Establishing the Judicial Department. (a) Exact terms of each ; (b) Substance of each ; (c) Re- flections upon the vast consequences and results contained in these brief paragraphs. 11. History of Development of Judicial Department in Convention of 1*78?. (a) Carlyle's dictum—" III every phenomenon the begin- ning always remains the most notable moment;" (b) Re- SYNOPSIS OF LECTURES. 25 markable fact that time and discussion was far less upon this department than upon the others ; (c) Virginia Reso- lutions of Edmund Randolph ; (f) The judicial power as stated in Randolph's 9th Resolution ; (g) Action of Com- mittee of the Whole, June 4th; (h) Record in official report of Convention and in private report of Mr. Madison; (j) Mo- tion to add to Randolph's 9th resolution a provision mak- ing the judicial power consist of " one supreme tribunal and one or more inferior tribunals;" (k) Striking out of words — "one or more ; " (1) This is the skeleton or frame of the judicial department as adopted in 1789, as it stands now. 12. Method of Choosing or Appointing Members of Judiciary. (a) 9th Resolution of Randolph proposed that national judiciary "be chosen by national legislature "; (b) Discus- sion on this clause ; (c) Mr. Randolph's idea of using the State tribunals in place of other inferior United States courts ; (d) Motion of Mr. Madison to strike out the words " chosen by national legislature," and leave a blank to be filled "on maturer reflection;" (e) Tenure, compensa- tion, &c, next fixed by Convention ; (f) Motion of Mr. Rutledge to strike out the words "of inferior tribunals ;" (g) Motion to add to the 9th Resolution the provision that the national legislature be empowered "to appoint inferior tribunals ;" (h) Here is, in substance, the precise, present provision of Constitution on this point. 13. History of the Fixing of the Jurisdiction of the National Judiciary. (a) Original language of Mr. Randolph's Resolution— " cases which respect the collection of the national revenue, impeachments of national officers, and questions which in- 26 SYNOPSIS OF LECTURES. volve the national peace and harmony" ; (b) "Questions which involve the national peace and harmony" was a phrase too elastic and vagne, but it contained the germ of the present jurisdiction of "all cases arising in law and equity," &c; (c) Motion by Mr. Gerry to insert in 9th Resolution after the words "one supreme tribunal," the words " the judges of which shall be appointed by the second branch of the national legislature." 14. Provisions for the Judicial Department in Mr. Pinckney's Draft of a Constitution. (a) Text of this provision ; (b) Close approach here to language finally adopted "all cases arising under the laws of the United States " ; (c) Pinckney's plan also distributed the original and appellate jurisdiction very nearly as in final Constitution. 15. Propositions of Mr. Patterson of New Jersey, and his Resolution relating to the Judiciary. (a) Its text. 16. The Judiciary Article in Mr. Hamilton's Plan, Sub- mitted June 18. 17. Further Changes in Mr. Randolph's Resolution. (a) Two clauses unanimously adopted July 18 (1) That a national judiciary be established ; (2) to consist of one supreme tribunal; (b) Motion to substitute "national executive" for "second branch of the national legisla- ture" negatived ; (c) Motion to give power of appointment to the executive with advice and consent of legislature ; (d) Unanimous adoption of provision for inferior tribunals 8YW0P8I8 OF LECTURES. 27 to be fixed by national legislature ; (e) Final passage of great jurisdictional provision extending to "cases arising under laws passed by ge&eral legislature, and to such other questions as involve the national peace and har- mony." 18. All Foregoing Results Embodied in Resolutions of Convention (XIV. XV, XVI), Referred to Committee of Detail, July 23. (a) Text of three principal resolutions ; (b) In Commit- tee of Whole House, August 27, division of original and appellate jurisdiction of Supreme Court, adopted ; (c) Whole work of Convention then referred to Committee of Revision ; (d) Report of latter Committee, September 12 ; (e) Text of Judicial article as it then stood ; (f) Changes in revised draft, September 14 ; (g) Constitution ordered to be engrossed ; (h) Final phraseology of engrossed Con- stitution, the work of Gouverneur Morris ; (j) Here ap- pears, for first time, precise terms of present Judiciary article. 19. This Historical Examination Shows : (a) That no part of the Constitution occasioned so little discussion or controversy as the judicial article ; (b) Entire official journal of Convention fills only 179 pages in Elliott's Debates ; (c) Of this, scarcely 20 pages record proceedings and discussions of judicial article ; (d) Madi- son's report occupies 442 pages ; (e) Of which not more than 40 are occupied with this article ; (f ) These facts show that the idea of our judiciary system was familiar to the thought of the framers of the Constitution and of the people for whom they acted, and (g) the work of the Con- vention was chiefly the putting into form, ideas which were well known before the Convention. 28 SYNOPSIS OF LECTURES. 20. What is then the Proper Conception and Statement of the Function and Office of our Federal Judicial Depart- ment, and particularly of our Supreme Court ? (a) Office of Supreme Court not different in kind from that of other state and federal courts ; (b) But the head of the system is its most potent and its unique member ; (c) Its judgments, if not infallible, are irreversible and irreviewable. 21. Characteristic Office of Judicial Department, to De- fine, Guard and Preserve our Constitutional Limitations. (a) Constitutional limitations of every branch, member and feature of our government ; (b) Idea of absolute, un- limited authority excluded from our system ; (c) Legis- lative power limited; execufive power limited; judicial power limited ; (d) Broad office of the courts of the United States, and especially of the Supreme Court, to enforce all these limitations ; (e) Limitations affecting judicial de- partment as well as those affecting the other departments. 22. Such Jurisdiction a Necessity of our Federal System. (a) If limitations were necessary there must be means to enforce them ; (b) Enforcement of this truth ; (c) Lan- guage perhaps properly used when this work is called "a creation " ; at least in its application to a great nation. 23. Meaning of Terms "Constitution" and "Constitu- tional ' ' in the English System of Government. (a) Act of Parliament may be unconstitutional, but still legal and binding ; (b) Remark of Mr. John Austin ; (c) Remark of Lord Brougham ; (d) Result of English theory of omnipotence of parliament modified by the theory of SYNOPSIS OF LECTURES. 29 the existence in Magna Charta, Declaration of Rights, etc., of certain constitutional safeguards and rights. 24. Further Attempt to State the Precise Contrast be- tween the English Constitution and its Methods, and oar own. (a) Absolute theoretical supremacy of parliament ; (b) What parliament cannot do ; (c) De Lolme's phrase. 25. Parliament possesses and may Exercise Unrestricted Legislative Power. (a) In this respect, parliament is not only theoretically, but actually omnipotent ; (b) Illustration of Septennial Act of 1716 ; (c) English legislative supremacy extends to private rights .as well as to public ; (d) Illustration of Irish land legislation of last ten years ; (e) Opinion sometimes expressed that there are limitations upon parliamentary supremacy ; (f) No just foundation for such opinion ; (g) Mr. Dicey' s chapter on "The sovereignty of Parlia- ment" ; (h) His conclusion, the doctrine of the legislative supremacy of parliament, is ''the very keystone of the law of the Constitution." Lecture V. 1. Where, then, is the Security of English Law and English Freedom ? (a) Two, and only two, general limitations to the suprem- acy of parliament ; (b) One, external ; (c) The other, in- ternal ; (d) External limitation is the fact of the possibility or certainty of resistance and disobedience to unconstitu- tional acts of parliament ; (e) In a word, the fact or cer- tainty of rebellion or revolution ; (f ) Internal limitation, arising from the nature of the sovereign ; (g) The resultant of the influences which govern the people or society. 2. In what Sense are the Terms — Constitutional Rights and Safeguards— used in England ? (a) They mean only that certain laws or rules of conduct have been developed which prescribe the modes in which the government should act for its citizens ; (b) In some cases those laws are merely customs ; (c) In some cases they are written documents, Magna Oharta, Act of Settle- ment, &c. ; (d) Written documents are, however, no more binding on parliament than unwritten customs. 3. Specific Illustration of Supposed Violation of Magna Charta. (a) Supposing, contrary to Magna Oharta, parliament were to pass an act depriving a British subject of life, lib- erty, or property, without judgment of his peers or the law of the land ; (b) How would such an act be treated in En- gland? (c) The Courts could not arrest it by declaring it unconstitutional, for it would still have full legal force ; SYNOPSIS OF LECTURES. 3 1 (d) Binding on every court and on every judge ; (e) Only method of dealing with it would be through the force of public opinion ; (f) This would hurl from power the min- istry which sanctioned the act ; (g) Compel the election of a new parliament pledged to its repeal ; (h) All ministers aiding or abetting its enforcement might be prosecuted criminally ; (j) But until its actual repeal, it would stand as the supreme and valid law of the land. 4. English Freedom and English Law is, nevertheless, in many respects, the most perfect known. (a) This arises from the fact that certain principles of government are so firmly settled in the minds and hearts of the people that no ministry or parliament would harbor the thought of their invasion ; (b) Rule of Czar of Russia described as "despotism tempered by dynamite;" (c) English constitutional guaranties, in last analysis, " are government supported by rebellion;" (d) Rebellion only infrequent because of its certainty in cases of need. 5. Reflections upon this Contrast. (a) More than one method of securing freedom and con- stitutional rights ; (b) Not time here to indulge at length in these contrasts ; (c) Our system tends powerfully to de- velop the spirit of legalism ; (d) Work of Mr. Hannis Taylor on " The English origin of our Federal system." 6. Looking Back at 1787, Supremacy of Parliament was no more Absolute then than it is to-day in England. (a) Taxation without representation was tyranny, but it was not illegal ; (b) In 1787, framers of our Constitution resolved that absolute power should have no place in our 3* SYNOPSIS OF LEOTURES. system ; (c) That revolution should cease to be an every- day necessity or threat or safeguard of American rights. 7. What, then, is the Precise Place and Function of our Judicial Department ? (a) Mr. Webster's three speeches — second and third speeches on Foot's Resolutions, January, 1830, and speech of January, 1833, on Calhoun's Resolution ; (b) No other statement exists anywhere which equals Webster's on this point ; (c) Reference to late President Woolsey, and late President Garfield. 8. The order and Place in Constitution of the Judicial Department was far more than an Historical or merely Logical one. (a) It was essential to the whole idea of our Con- stitiition, restricting the powers of every department ; (b) Remark of Mr. Webster that the " sovereignty of govern- ment is an idea belonging to the other side of the At- lantic ;" (c) Further quotations from Mr. Webster on this point. 0. Philosophical reasons why, in such a Constitution as ours, it is essential to confer such a Jurisdiction. (a) Our Constitution operates in some instances directly on individuals, and in some instances on States ; (b) In both cases, the law must have a sanction, or means of in- suring obedience ; (c) Remark of Prof. Pomeroy, that the ultimate aim of the Constitution was "to restrain the very organism it created, the very officers it empowered." 10. Constitution in many instances enjoins Political Acts and ForbearanceB. S72T0P818 OF LECTURES. 33 (a) Here, discretion is an essential ingredient in the ex- ercise of power ; (b) If discretion is willfully abased, or if injury be done to civil society or public interests, from honest abuse of power, judicial remedies must be applied, and (c) the judicial power must pronounce upon the char- acter of such acts. 11. Questions at this Point (1) Whether this Function belongs to the United States as a National Government, or to the separate States, or to both ; (2) Whether the Func- tion, if it belongs to the United States, belongs to some one Department, or to all Departments of Government % (a) First of these questions settled ; (b) Power to con- strue the Constitution and to apply its prohibitions and execute its powers, belongs to the United States, and not to the States. 12. Philosophical reason for this, aside from the letter of the Constitution. (a) Statement upon this point of Prof. Pomeroy. 13. Eelative strength and importance of the Judical Department*. (a) Views of Mr. Justice Miller. 14. One Sense in which the Judiciary occnpies a Secondary Place. (a) It cannot move until Congress and the executive have acted ; (b) Cannot proceed of its own will against any department or officer ; (c) Remark of Prof. Pomeroy, that "important as is the function in question, it is in- trinsically subordinate to that of the legislative and the 34 SYNOPSIS OF LECTURES. executive;" (d) Another aspect, in which the relative importance of the judicial department appears to be foremost. 15. Idea contained in 27th number of Federalist, that Congress might adopt the State Courts as courts through which the powers of the United States might be exercised. i 16. Same Idea Repeated in 81st number of Federalist. (a) These ideas have never been sanctioned since the adoption of the Constitution ; (b) Judicially determined by the Supreme Court that " the Constitution is imperative upon Congress to vest all the judicial power of the United States in the shape of original jurisdiction in the Supreme Court and inferior courts created under its own authority ; " (c) Case of Martin v. Hunter's Lessee (1 Wheaton). 17. Examination more in Detail of Methods of Operation of Judicial Power. 18. Manner in which the Jurisdiction is. conferred. (a) Simplicity of this feature ; (b) Tremendous power, but expressed in simplest terms,— ''cases in law and equity ; " (c) More dignified or ambitious phrases first used in Convention; (d) Mr. Randolph's "questions which involve the national peace and harmony ;" (e) Precise Phrase — "cases in law and equity," — did not appear even in draft of Committee of Detail, but in draft of Commission of Revision, September 12, 1787 ; (f) Admirable form of expression, — simple, exact, compre- hensive ; (g) Whatsoever question, issue, or controversy cannot be reduced to a case "inlaw and equity" is not within the jurisdiction of judicial power of the United SYNOPSIS OF LECTURES. 35 States ; (h) "Government by law-suit," this has some- times been called— eorrectly enough ; but it is nevertheless government by law; (i) Sir Henry Maine' s remark, that this process is "freer from suspicion of pressure and much less provocative of jealousy than the submission of broad and emergent political propositions to a judicial body." 10; Importance of Discerning full Significance of this Clause. (a) It bars out all matters from judicial cognizance, in<- capable of being presented and decided as simple cases in> law or equity ; (b) In the century passed under the Con- stitution, no great question has been passed on by the Federal Courts, supreme or inferior, except when it arose, strictly and in form, between litigants in a case at law or in equity. 20. Illustrations of this. (a) Mr. Webster's illustration in second speech on Foot's Resolutions, — constitutionality of Jefferson's embargo ; (b) Quotation from Mr. Webster's speech ; (c) Only other method is revolution, forcible resistance, war ; (d) In 1861, if malcontents had respected Constitution, same course would have been followed ; (e) A simple law-suit might have settled every constitutional or judicial question involved ; (f) Grandeur of the occasions of the opinions of Marshall ; (g) Absolute and relative insignificance of the pecuniary stakes involved ; (h) Illustrations, — Marbury v. Madison (1 Cranch.) ; McGullough v. Maryland (4 Wheat.) ; Dartmouth College v. Woodward (same volume) ; Osborn v. Bank (9 Wheat.) ; Ogden v. Saunders (12 Wheat.); Texas v. White (7 Wall.) ; (j) Statement of Marbury v. Madison, — mere suit in mandamus as to compel Secretary of State to deliver Marbury his commission as Justice of 36 SYNOPSIS OF LECTURES. the Peace in District of Columbia ; occasion for the most commanding decision that a law of Congress contrary to the Constitution "cannot become a law ;" that such a law it is the duty of the Court to declare void ab initio, that the President has no power to authorize Secretary of State or other officers to omit the performance of any duty enjoined by law ; that mandamus will lie to compel Secretary of State to deliver commission ; but that the Supreme Court not having original jurisdiction in such a case, and the case not falling within the appellate jurisdic- tion, the Court cannot issue the writ ; (k) Remarkable conclusion, that although Marbury was fully entitled to his commission and that neither President Jefferson nor Mr. Madison had a legal or moral right to withhold it, the suit, invoking a jurisdiction not granted by the Constitu- tion, must be dismissed. (1) McCullough v. Maryland, — suit in form an action of debt for $2,500 ; decision, the most express and impressive announcement of the character of this government and of the heresy of state supremacy under the Constitution ; also of the doctrine of incidental or implied powers ; (m) Chief Justice Marshall's statement of the latter doctrine. (n) Dartmouth College v. Woodward, — action, r in form, in trover in Superior Court of New Hampshire for two books of records and other paper documents ; special con- ditional verdict in lower Court of damages for $20,000 ; (o) Decision as important as any in our history, perhaps, — that an act of incorporation constitutes a contract between state and grantee protected by Article I, Section 10, of the Constitution. (p) Osbom v. Bank, — suit, in form, bill in equity for in- junction to restrain Auditor of Ohio from carrying into effect Act of Legislature levying tax upon branch bank of the Bank of the United States ; (q) Decision, (1) that under the Xlth Amendment the Circuit Courts of the SYNOPSIS OF LECTURES. 37 United States have jurisdiction of such a bill ; (2) that as the State itself cannot be made a party, suit may be main- tained against officers and agents of State entrusted with execution of Act ; (3) that State cannot tax Bank of United States or any of its branches ; (4) that an attempt to do so by state officers may be restrained by injunction in the United States Circuit Court ; (r) Ogdenv. Saunders, — suit, in form, action of assump- sit on bill of exchange; defendant's plea, certificate of discharge as insolvent debtor under Act of Legislature of New York ; (s) Decision, (1) that power of Congress over bankruptcy laws does not prevent States from legislating on same subject, except where power has been actually exercised by Congress, or where state laws are in conflict with those of Congress ; (2) that state bankrupt or in- solvent law discharging both the person of the debtor and future acquisitions of property does not impair obligation of contract subsequent to passage of such Act ; (t) Texas v. White, — original bill filed in Supreme Court on behalf of State of Texas, asking delivery to State of certain bonds alleged to be fraudulently held and the prop- erty of the State, only $5,000 in amount ; (u) Decision covering (1) entire constitutional and legal effect of ad- mission of State into Union ; (2) effect of attempted legis- lative act of secession followed by rebellion and revolu- tion ; (3) historical genesis and political philosophy of Union and Constitution ; (4) as well as relations of the states to the national government ; (v) Memorable phrase of Chief Justice Chase, that "the Constitution in all its provisions looks to an indestructible Union composed of indestructible states." 21. Other illustrations. (a) Hartman v. Oreenough, and other cases involving 38 STN0PBI8 OF LECTURES. tax receivable coupons of Virginia ; (b) Amount involved in JSartman v. Greenough, $26.53 ; (c) Beginning of liti- gation covering more than thirty subsequent cases, and culminating in recent cases of McOdhey v. Virginia, and others (135 U. S.) ; (d) Reflections upon the result of these illustrations ; (e) Remarkable expressions of Chief Justice Marshall in Osborn v. Bank, and on Burr's trial. Lecture VI. 1. Effect and Meaning of Phrase— "All Cases in Law and Equity." (a) Definition of a case or controversy by Prof. Pomeroy ; (b) Primary function of Court in dealing with a "case" ; (c) This duty, first, to adjudge the rights and duties of the parties only ; (d) Construction of Constitution strictly in- cidental to this primary duty. 2. Court Cannot Deal with Questions which are Political. (a) Luther v. Borden (7 How.) ; (b) Mississippi v. Johnson (4 Wall.) ; (c) Georgia v. Staunton (7 Wall.). 8. Phrase— " Cases in Law and Equity." — Further Examined. (a) Cases in law include civil and criminal cases ; (b) Civil cases embrace both cases at common law and in equity; (c) Common law cases embrace both civil and criminal. 4. Well settled that Federal Courts have no Common Law Jurisdiction. (a) All jurisdiction derived from Constitution and Laws of United States ; (b) Here, no vague borderland of juris- diction in federal courts as in some other courts of general jurisdiction ; (c) Remark of Prof. Pomeroy on this point. 4° SYNOPSIS OF LECTURES. 5. Analysis of Cases or Classes of Cases to which Judicial Power Extends under the Constitution, Section 2, Article III. (1) Cases arising under the constitution ; (2) Cases arising under laws of the United States ; (3) Cases arising under treaties made by authority of the United States ; (4) Cases affecting ambassadors, &c. ; (5) Cases in admiralty and maritime jurisdiction ; (6) Cases to which the United States are a party ; (7) Cases between two or more States. 6. All these Classes of Cases Distinguishable from other Classes named in same Section. (a) All belong in category which Prof. Pomeroy has called "necessary" or "essential" national jurisdiction ; (b) All might well have been placed within exclusive juris- diction of federal courts ; (c) This has been done in some instances ; in others, not. 7. Remaining Classes of Cases Enumerated in Section 2, Article III. (1) Cases between a state and citizens of another state ; (2) Cases between citizens of different states ; (3) Cases between citizens of „the same state claiming lands under grants of different states. (4) Cases between a state or citizens thereof and foreign states, citizens, or subjects. 8. All these are Cases in which National Supremacy is not Directly Involved. (a) Object, to secure a tribunal free from prejudice feared in state courts; (b) This jurisdiction called by Prof. Pomeroy Supplementary ; (c) Jurisdiction here de- pends on character of partus. SYNOPSIS OF LECTURES. 41 9. This Jurisdiction Reaches the End Aimed at in Mr. Randolph's 9th Resolution, viz.: To Commit to the Na- tional Judiciary "All Questions Involving the National Peace and Harmony." (a) Consists, first, of all cases which directly touch the na- tional supremacy ; second, such other cases as were deemed essential to the peace, good order and good neighborhood of separate states and to the security of the rights of citi- zens of different states ; (b) Political prescience, true statesmanship, displayed in this arrangement of jurisdic- tion. 10. Remarkable Pact that nearly all the Classes of Cases Comprising the Necessary Jurisdiction as above Defined, have remained and are now Concurrent with the State and National Courts. 11. Examination of each of Foregoing Cases. (a) " Cases arising under the Constitution ;" (b) Com- monly called cases involving "Federal questions;" (c) What are "Federal questions ;" (d) Judge Cooley's state- ment; (e) Prof. Pomeroy's analysis into four classes; (f) Illustrations of each of Prof. Pomeroy's classes or cate- gories. 12. Full effect of Jurisdiction of Judicial Department not Apprehended by Convention of 1787. (a) Jefferson's fears ; (b) Marshall's great services. 13. " Cases arising Under Laws of the United States." (a) Cases where the question is not as to the validity of 42 STNOP&IS OF LECTURES. the law, but as to legal correctness of construction put upon it ; (h) This power not exclusive in state courts ; (c) Power of removal of causes from state courts to federal courts. 14. "Cases arising under Treaties." (a) Nature and effect of treaties ; (b) States being pro- hibited from making treaties this jurisdiction necessarily- fell to the federal courts ; (c) Constitution nowhere con- fers exclusive jurisdiction of any kind on courts of United States ; (d) Original jurisdiction conferred on Supreme Court, but not exclusive ; (e) At present, right claimed under treaty can be asserted in a state court as well as in a federal court. 15. " Cases affecting Ambassadors, Other Public Minis- ters, and Consuls." (a) This jurisdiction naturally fell to the federal courts ; (b) Made original in the Supreme Court ; (c) Reason for this eminence of jurisdiction ; (d) Deference and courtesy to other governments ; (e) Congress in 1789 made juris- diction of suits bvoughfagainst foreign ministers exclusive in Supreme Court, but concurrent in suits brought by am- bassadors, etc. 16. Jurisdiction in Admiralty and Maritime Causes. (a) This jurisdiction fell to the Federal Courts because the regulation of commerce was a power conferred upon Congress and because admiralty applies to cases arising on the high seas, beyond the territorial limits of a nation ; (b) Prof. Pomeroy's remark as to war-making powers and the observance of neutral rights. SYNOPSIS OF LECTURES. 45 17. Cases to which the United States is a party. (a) Special reference here to criminal cases ; (b) Not compatible with dignity of National Government to bo forced as a party into courts of the states. 18. Cases between two or more States. (a), Jurisdiction deemed essential to the peace of the- nation and the dignity of states and nation ; (b) Jnrisdio- tion here original in Supreme Court ; (c) States before Constitution could not sue each other at all, nor could a state be sued by individuals without her own consent ; (d) These reasons did not exist if Courts of the United States were opened to such controversies ; (e) Case of New Hamp- shire v. Louisiana (108 U. S.) ; (f) Decision,, that states must be actually and not merely nominally parties in interest. 19. Seven Foregoing Subjects of Jurisdiction Complete the Circle of Necessary Jurisdiction. 20. Items of Supplementary Jurisdiction. (a) All embrace matter not essential to the execution of chief powers and aimsr of Constitution ; (b) Governed by considerations of convenience and expediency ; (c) In a word, by good public policy ; (d) In such cases, Federal Courts do not construe or enforce laws of the United States but of the States where controversies arise ; (e) Hence, decisions of Federal Courts are not . supreme, and do not overrule decisions of State Courts ; (f) Each set of courts pursues its own way, side by side ; (g) Anomaly of this ; (h) But not hurtful anomaly, upon the whole. 44 sriropsis of leci uses. 21. Rules growing out of these classes of Cases. (a) Rule prescribed by statute, that laws of several states shall be regarded as rules of decision in trials at common law in Courts of the United States ; (b) That Courts of United States in these classes of cases will follow authoritative decisions of State Courts ; (c) Federal Courts will be bound by decisions of highest Court of State in construction of State Constitutions and Statutes ; (d) If State Courts have made conflicting decisions, Federal Courts will follow generally earlier decisions ; (e) In ques- tions of (1) general commercial law, so-called, and (2) ques- tions depending on public policy, and (3) questions of general equity jurisprudence, Federal Courts will not follow decisions of State Courts, but will be guided by their own independent views of the law ; (f) Illustrations of "general commercial law," — Swift v. Tyson, (16 Pet.) ; (g) Of public policy, — Railroad Go. v. Lockwood, (17 Wall.) ; (h) Of general equity jurisprudence, — Nevis v. Scott, (13 How.) 22. General Discussion of Effect of above Relations of State and Federal Courts. 23. General Conclusion that these Relations are, upon the whole, conducive to Harmony and good Administra- tion of the law. (a) Quotation from Mr. Justice Matthews ; (b) Remark- able instance of " civil capacity of the American people," — Bagehot's complimentary phrase. 24. Designation and Organization of the different Courts of the United States. (a) A matter chiefly of statutory provisions ; (b) neces- SYNOPSIS OF LECTURES. 45 r sary, however, in order to understand how the Constitu- tion, in this respect, has been carried into effect. 25. The Great Judiciary Act of 1789 and Changes subse- quently made. (a) Act of 1789 covers whole field ; (b) Its Author, Oli- ver Ellsworth, member of Convention, of Committees of De- tail and of Revision, and second Chief Justice of the United States ; (c) The Act a monument of constructive leg- islation and statesmanlike foresight ; (d) Has authority of contemporaneous exposition of Constitution. 26. First Section Organizes Supreme Court. (a) Consisting of Chief Justice and five associate justices, four making a quorum ; (b) Number of associate justices increased in 1802 to six ; (c) In 1837, to eight, the present number. 27. Act next divides United States into Thirteen Judi- cial Districts. (a) Original districts identical in territory with thirteen original states, except that Connecticut and New Jersey made but one district, as did also North and South Car- olina; (b) Part of Massachusetts called Maine and of Vir- ginia called Kentucky, each a separate district ; (c) One district judge provided for each district ; (d) By admission of new states and divisions of former states, number of districts has now risen to fifty-one. 28. Districts Grouped, except Maine and Kentucky, into Three Circuits. — Eastern, Middle and Southern. 4 6 SYNOPSIS OF LECTURES. (a) Circuit Court established in each ; (b) Consisting of any two justices of the Supreme Court and. district judge, two making a quorum ; (c) This continued in force until 1867, except that in 1844 justices of the Supreme Court were authorized to hold only one session annually. 29. Change of Circuit Court System in 1867. (a) Addition circuit judge in each circuit ; (b) Two for the second, or New York, circuit ; (c) Number of circuits, nine ; (d) Provision for attendance of justice of Supreme Court continued ; (e) Circuit Court now consists of one justice of the Supreme Court, including the chief justice, and the circuit judge ; (f) Circuit judge alone or with dis- trict judge, may constitute circuit court ; (g) In difference of opinion between circuit and district judge, opinion of circuit judge prevails. 30. Jurisdiction of Supreme Court under Judiciary Act, same as in Constitution, — Original in a few classes of Cases, and Appellate in others. Lecture VII. 1. Jurisdiction of the District Courts under Act of 1789. (a) Exclusive of state courts of (1) all crimes and offenses against the United States committed in respective districts or on high seas ; (2) All civil causes of admiralty and maritime jurisdiction : (3) seizures under the law of the United States ; and (4) concurrent jurisdiction with state courts in some other classes ; (b) Other items of jurisdic- tion since added, such as suits for damages under Civil Eights Acts, violation of internal revenue and customs acts, and suits in bankruptcy. 2. Jurisdiction of Circuit Courts under Act of 1789. (a) Generally (1) of all suits of a civil nature of common law or in equity where matter in dispute exceeds, exclu- sive of costs, sum or value of $500, and (2) where United States are plaintiffs, or (3) an alien is a party, or (4) suit is between a citizen of a state where the suit is brought and a citizen of another state ; (5) with appellate jurisdiction from the district courts under certain regulations. (3) The Above Jurisdiction Falls Short of the Pull Juris- diction given to Judicial Power by the Constitution. (a) Judiciary Act of 1887 extends jurisdiction of circuit courts to all cases arising under the Constitution, laws, or treaties of the United States, as well as to all other cases enumerated in Section 2 of Article III ; (b) Result, whole jurisdiction given by the Constitution is now distributed to the several courts named. 48 SYNOPSIS OF LECTURES. 4. Act of 1789 Empowered all Courts of United States to Issue Writs of Scire Facias, Habeas Corpus, and all other Writs Necessary for the Exercise of their Jurisdic- tion, &c. (a) Judges of these courts were also authorized to issue writs of habeas corpus ; (b) But writs in no case were allowed to extend to prisoners in gaol, unless held under authority of United States Courts, or necessary as wit- nesses ; (c) These provisions substantially in force now ; (d) Practice in habeas corpus changed somewhat ; and (e) ap- peal in habeas corpus to the circuit court from the final decision of any court, justice or judge, inferior, in two cases : (1) In case of person alleged to be restrained of his liberty in violation of Constitution, laws or treaties of the United States. (2) In case of prisoner, citizen, or subject of a foreign state and domiciled therein, but committed or confined under authority of the United States or any state on ac- count of any act done or omitted under any right, title, authority, &c, of any foreign state or sovereignty, where the validity and effect of such right or title depends upon the law of nations, or under color thereof. 5. Appeal in Habeas Corpus also lies from Final Decis- ions of Circuit Court to Supreme Court. (a) Pending such appeal, all proceedings against such person until final judgment of Supreme Court are declared null and void. 6. General Statement of Entire Range of Jurisdiction of United States as fixed by Statute. First, Common Law ; Second, Equity ; SYNOPSIS OF LECTURES. 49 Third, Admiralty ; Fourth, Revenue proceedings in rem. ; Fifth, Bankruptcy. 7. Proceedings in Revenue Cases in Personam follow ordinary Practice in Civil Causes at Common Law. (a) Proceedings in revenue cases in rem partake partly of proceedings in admiralty ; (b) Bankruptcy laws repealed ; (c) Three remaining departments, — Common law, equity and admiralty ; (d) Common law jurisdiction, already stated ; (e) Original and appellate jurisdiction of Supreme Court, discussed in subsequent lecture. 8. Jurisdiction in Admiralty and Maritime Cases. rr (a) Statutes provide that this jurisdiction shall extend to all civil cases of admiralty and maritime jurisdiction ; (b) But not exclusive of the courts of the states ; (c) Saving to suitors in all cases the right of a common law remedy where the common law can give it. 9. Admiralty Jurisdiction, not Limited by Rules of Ad- miralty Courts in England at Adoption of Constitution, but Co-extensive with Admiralty Jurisdiction of Continental Courts and Governed by General Principles of Interna- tional and Commercial Law. (a) Case of The Lottawanna (21 Wall.). 10. Admiralty Courts of United States have Jurisdiction in all Actions for Torts on High Seas or Navigable Waters and of Actions for Breach of Contract Involving Transac- tions connected with Navigation on High Seas or Navi- gable Waters. S» SYIT0PSI8 OF LECTURES. (a) Navigable waters include rivers and fresh water lakes an4 are not limited, as in England, to tide-waters ; (b) Case of the Genesee Chief v. Fitzhugh (5 How.). 11. Rule that Admiralty and Maritime Jurisdiction Ex- tends to all Public Navigable Lakes and Rivers where Commerce is carried on. (a) And to navigable canals also, when used for com- merce between ports and places of different states, although such canals are wholly artificial, and wholly within a single state, and subject to the ownership and control of such state ; (b) Case of Ex parte Boyer (109 U. S.) ; (c) Case of Insurance Co. v. Dunham (11 Wall.). 12. Jurisdiction in Equity. (a) Given by the Constitution and extends to certain cases where the subject matter has a given character, and (b) to certain other cases where the parties have a given character. 13. Held that the Distinction between suits at Law and in Equity must be Preserved in United States Courts, even where the Laws of the State in which the Court sits have Abolished such Distinction. (a) Case of Bennett v. Butlerworth (11 How.) ; (b) Com- ment on this decision ; (c) Held in Louisiana where civil law prevails, and no distinction is known between common law and equity, that United States Court must have dis- tinct bnraches in equity and in common law. 14. Revised Statutes Provide that Practice in Equity in SYNOPSIS OF LECTURES. S 1 Federal Courts shall be substantially same throughout the Union, being excepted from Statute governing Practice at Common Law. (a) Case of Hart v. Hotting sworth (100 U. S.) 15. Practice in Equity in United States Court, founded on Practice in Chancery in England, modified by Rules of Supreme Court in Equity. (a) Held, that alterations in jurisdiction of state courts in equity cannot affect jurisdiction of United States courts in equity; (b) Cases of Broderick's Will (21 Wall.); Holland v. Ohallen (110 U. S.) ; Reynolds v. Bank (112 U. S.). 16. Resume of Equitable and other Jurisdiction under Act of 1789, and changes since. (a) Change in direction of extending jurisdiction of United States Courts to the full constitutional limit. 17. Jurisdiction of Supreme Court and its Methods of Exercise. (a) Most interesting topic in whole course ; (b) Scope of jurisdiction ; (c) Exact language of Constitution ; (d) Dis- tinction of necessary and supplementary jurisdiction ; (e) Original jurisdiction ; (f ) Appellate jurisdiction. 18. Power of Congress over Appellate Jurisdiction. (a) Language of Constitution on this point ; (b) No limitation on power of Congress here ; (c) Apparent con- flict of decisions ;— (1) Barry v. Mercein (5 How., 103, 119), and (2) Ex parte McArdle (7 Wall., 506, 513). S 2 8TIT0PSI8 OF LECTURES. 19. Judiciary Act of 1789. (a) Gives exclusive jurisdiction to Supreme Court in all controversies of civil nature where state is party, except between state and its citizens ; (b) Except also between state and citizens of other states or aliens ; (c) In latter case, jurisdiction is original, but not exclusive. 20. In cases Affecting Ambassadors, &c, gives Supreme Court Exclusive Jurisdiction of suits against Ambassa- dors, &c. (a) But original, not exclusive jurisdiction, of suits by ambassadors, &c, or where consul or vice-consul is a party ; (b) Reasons for this distinction. 21. Summary Statement of Appellate Jurisdiction in Section 18 of Acts of 1789. (a)- Exact terms used. 22. Terms of Judiciary Act of 1789, in Respect to Ap- peals from Circuit Court to Supreme Court. (a) Final judgments ; (b) Where matter in dispute, ex- clusive of costs, exceeds $2,000. 23. Appeals in Equity and Admiralty Cases. (a) All final decrees where matter in dispute, exclusive of costs, exceeds $5,000. 24. Appeal or Review in Supreme Court upon Certifi- cate of Division of Opinion. SYNOPSIS OF LEOTUBES. 53 (a) Acts of June 1, 1872, and of February 16, 1875 ; (b) Exact terms of latter act. 25. Here appears for first time in Express Terms the Idea of Supreme Conrt Sitting in Final Judgment over State Courts. (a) Constitution contains no such expression ; (b) Views of Hamilton in 80th, 81st and 82d Nos. of Federalist. 26. Masterly Exposition by Hamilton of Theory, Intent, and Effect of Judiciary Article. (a) This jurisdiction is clear result of language used in Constitution ; (b) No other way of effectuating jurisdiction given by Constitution ; (c) Effect and value of this juris- diction. 27. Twenty-fifth Section of Judiciary Act of 1789. (a) Exact terms of statute ; (b) Substantial correspond- ence of this section with Section 709 of present Revised Statutes of United States. 28. Intricacy and Difficulty in Application of this Sec- tion. (a) Judgment to be appealable must be judgment of highest court of state in which decision could be had ; (b) Not necessarily highest court of state ; (c) Illustrations, — Qelstonv. Hoyt, (3 Wheat.); McGuirev. Commonwealth, and Green v. Van BusMrJc (3 Wall.). 29. Judgment to be Appealable must be final. 54 SYNOPSIS OF LECTURES. (a) Distinction between final and interlocutory judg- ments and decrees ; (b) Not difficult of statement, but dif- ficult of application ; (c) Final judgment not used here in English sense ; (d) As matter of practice, necessary to have wide acquaintance with actual precedents in Supreme Court. 30. Examination of Cases. (a) Most important case— Conrad vs. Forgay (6 How.); (b) Examination of this case ; (c) Grant v. Phcenix Insur- ance Co. (106 U. S.); (d) Apparent inconsistency between two latter cases ; (e) Wabash & Erie Canal v. Beers (1 Black); Milwaukee R. R. v. Sutter (2 Wall.). Lecture VIII. 1. Examination of Cases continued. Beebe v. Russell, and Farrelly v. Woodfolk, (19 How.) ; Ogilvie v. Knox Ins. Co., (2 Black) ; Thompson v. Bean (7 Wall.) ; Parsons v. Robinson (122 U. S.). 2. Character of cases in which Appeals may be taken. 1st. Final judgments where validity of treaty or statute of United States is involved and decision of state court is against the validity ; 2d. Cases in which validity of a statute or authority exercised under a state is involved, on the ground of its repugnance to the Constitution or laws of the United States, and the decision is in favor at the state statute or au- thority. 3d. Cases in which is involved the construction of some clause of the Constitution of the United States, treaty or statute, and decision is against the title, right, etc., claimed under such clause, treaty, etc. (a) Reasons for limiting appeals to cases in which decision of state court is against claim of federal right. 3. All above cases are simply " Cases arising under the Constitution, Laws, or Treaties of the United States." (a) Usually described as cases involving " federal ques- tions;" (b) Term "federal" here understood simply to express idea of case involving question growing out of Con- stitution, laws, or treaties of the United States. 5 6 SYNOPSIS OF LECTURES. 4. Difficulty of Determining when a ' ' Federal Question ' ' is involved. (a) Great familiarity with adjudged cases necessary here. 5. Statement of some of the Questions arising. (a) Judge Cooley's definition of "Federal Questions;" (b) Dartmouth College case ; (c) Great number of cases arising upon validity of state laws. 6. Original Provision in Act of 1789 Limiting Jurisdic- tion to Federal Questions which " Appeared upon the Face of the Record." (a) This provision continued in its original form till 1867, when it was omitted ; (b) Collection of cases in Phillips' " Supreme Court Practice," under head of " Writ of Error to State Court." 7. Effort in Crowell v. Randall, (10 Pet., decided in 1836) by Judge Story, to close " All Future Controversy on this Point." (a) Statement of rules by Judge Story. 8. But in Armstrong v. Treat, (16 Pet., decided in 1842), question was still found to be an open one. (a) Re-statement by court in that case ; (b) Difficulties and discrepancies, however, did not disappear. 9. Great Case of Bridge Proprietors v. Hoboken Co. (1 Wall.). SYNOPSIS OF LECTURES. 57 (a) Re-statement of rule ; (b) Case of Furman v. fflchol, (8 Wall.). 10. Difficulty when several questions, some local, some Federal, are involved. , (a) Rule that in such cases the jurisdiction will be main- tained, if the local questions aloue afford no good ground for the decision of state court ; (b) Otherwise, Supreme Court will not take jurisdiction. 11. Rule stated in Rector v. Ashley (6 Wall.). (a) That Supreme Court will decline jurisdiction when the decision may be sustained on some local question, even if the federal question involved was erroneously deter- mined ; (b) Great difficulty of application of this rule. 12. Great Case of Murdock v. City of Memphis (20 Wall.). (a) Eminence of Counsel ; (b) Opinion of Mr. Justice Miller ; (c) Statement of conclusions ; (d) Remarkable clearness and precision of statement in this case. 13. Removal of Cases from State Courts to United States Courts. 14. Force and Effect of the XI Amendment. 15. General Relation of State Judiciary Systems to United States System. S 8 SYNOPSIS OF LECTURES. 16. Difficulty of Choosing most Important Topics for this Course of Lectures. 17. Removal of causes. (a) Leading case of Martinv. Hunter's Lessee (1 Wall.); (b) Supreme Court here declared jurisdiction to be original jurisdiction ; (c) 12th Section of Judiciary Act of 1789 ; (d) Its specific provisions ; (e) Few cases of removal prior to 1833 ; (f) Act of March 2, 1833, and its cause and effect ; (g) Act of March 3, 1863 ; (h) Act of 1868 ; (j) Question arising under latter Act, — whether if one or more defendants are involved, some having the right of removal and others not, part of the defendants can remove the cause 1 (k) Decision that part of defendants may remove. 18. Leading Acts now in Force. (a) 12th Section, Act of 1789 ; (b) Acts of July 27, 1866 ; (c) of March 2, 1867 ; and (d) of March 3, 1875 ; (e) Lat- ter Act being Section 639 of revised statues of United Statutes. 19. Leading Case of Gains v. Fuentes, (96 U. S.). (a) Decision that this legislation is not open to question, as to its constitutionality ; (b) Dissents, in this case by Justices Bradley and Swayne ; (c) Series of cases beginning with Insurance Co. v. Morse (20 Wall.), holding that state statutes permitting foreign corporation to do business only on condition that it will not remove suits to federal courts, are void ; (d) Decided in Boyle v. Insurance Co. (94 U. S.), that state statute authorizing state officers to revoke license of foreign corporation for removal of causes, is not unconstitutional. SYNOPSIS OF LECTURES. 59 20. Growth of this Jurisdiction. (a) 12th section of Judiciary Act limited it to two classes of cases ; — (1) suits against an alien, and (2) suits by citizens of one state against another ; (b) Case of Strou- oridge v. Curtiss (3 Cranch) ; (c) Further decided under 12th section of Act of 1789, that case could not be removed unless all the defendants joined in petition ; (d) also, that all the plaintiffs must be citizens of the state in which suit is brought, and all of the defendants must be citizens of some other state or states. 21. Statement of Results of Decisions under Act 1789. 22. Examination of Act of July 17, 1866. (a) Statement of circumstances under which remova may take place under this Act. 23. Examination of Act of March 2d, 1867. (a) Its provisions ; (b) Its reasons ; (c) Case of Farmers' Loan and Trust Co. v. McQuillan (3 Dillon). Lecture IX. 1. Great Act of March 3d, 1875. (a) Title of Act ; (b) Provision of second section ; (c) Great enlargement of class of cases removable ; (d) De- scribed by eminent authority as "a radical change of policy " ; (e) Gives right of removal, (1) in all cases arising under Constitution, laws, or treaties of United States ; or (2) in which the United States shall be plaintiff, without reference to citizenship, and with sole reference to subject matter. 2. One of the first great questions arising, — its Effect upon Previous Acts, — Whether it repeals them, and if so, to what Extent. ? (a) Better opinion, that former Acts are not repealed ; (b) Dillon on " Removal of Causes ;" (c) Settled, that this act effects removal of whole suit and not a part; (d) Case of Lockhart v. Horn (17 Wall.). 3. " The Removal Cases," (100 U. S.). (a) Here determined that first clause of Act of 1875 meant that when the controversy is between citizens of one or more states on one side, and citizens of other states on the other side either party may remove the suit without regard to the position they occupy as plaintiffs or defend- ants, and (2) that for the purpose of removal the matter in dispute may be ascertained and the parties arranged ac- cordingly on opposite sides, and (3) if in such arrangement, all on one side are citizens of different states from those on the other side, and desire removal, suit may be removed ; (b) Statement of facts of this case. SY2T0PSIS OF LECTURES. 61 4. Act of March 3d, 1887. (a) Entitled "An Act to amend the Act of March 3d, 1875;" (b) Provides that all suits of which the United States circuit courts are given jurisdiction by the first section and which are brought in state courts, may be re- moved by the defendant or defendants to the circuit court of the United States ; (c) 1st section gives jurisdiction to circuit courts to full extent provided by Constitution. 5. Summing up of Whole Matter. 6. General View of the Growth and Effect of this Juris- diction of Removal of Causes. 7. Supposed Difficulty of Application in Practice of the Statutes here examined. 8. Force and Effect of Xlth Amendment. (a) Only amendment, since adoption of Constitution, of judicial article ; (b) Occasion of amendment ; (c) Case of Chisholm, Exor, v. Georgia, (2 Dallas) ; (d) History and incidents of this case ; Ce) Opinions of all the justices, particularly of Chief Justice Jay and Mr. Justice Wilson ; (f) Excitement caused by decision that state might be sued in Supreme Court by citizens of another state ; (g) Move- ment in various states for amendment; (h) Suit brought against Massachusetts, and action of that state ; (j) Adop- tion of amendment, January 8, 1798 ; (k) Exact terms of amendment. 9. General Consideration of the Value and Policy of this Amendment. 62 SYN0PSI8 OF LECTURES. 10. First Great Case Construing this Amendment, — Cohens v. Virginia,— (1821) Decided by Chief Justice Marshall, (a) Statement of this case ; (b) Quotation of language of Marshall ; (c) Cohens v. Virginia related only to question of appellate jurisdiction of Supreme Court in cases where the state was a party ; (d) But in great case of Osborn v. Bank, (9 Wall.), question arose of effect of amendment upon a suit against an officer of a state ; (e) Defendant in this case was Auditor of Ohio ; (f) Opinion of Marshall, that the United States circuit court had jurisdiction in such a case ; (g) Practical effect of this decis- ion ; (h) Remained unchallenged for more than fifty years ; (j) Followed and affirmed by Davis v. Gray, (16 Wall.), and Board of Liquidation v. McOomb, (96 U. S. ); (k) Statement of each of these cases ; (1) Case of United States v. Lee, and opinion of Mr. Justice Miller; (m) Case of Poindexter v. Greenhow (114 U. S.). 11. New Current of Decisions. (a) Case of Lousiana v. Jumel and Antoni v. Greenhow (107 U. S.) ; (b) Statement of each of these cases ; (c) Case of Hagood v. Sothern (115 U. S.) 12. Final Great Cases of In Re Ayres (123 U. S.). (a.) Osborn vs. Bank disregarded and overruled; (b) Believed to be only case, in which a leading opinion of Chief Justice Marshall was rendered, which has since been overruled ; (c) Present state of the law upon this ques- tion. 13. Brief Discussion of relations of State Judiciary Sys- tems to the United States Judicial System. (a) Two early conclusions. sriropsrs of lectures. 63 1st. That in all cases to which the jurisdiction of the United States courts is extended by the Constitution, Con- gress has power to vest exclusive jurisdiction in its own courts. 2d. That Congress cannot vest any portion of the judi- cial power of the United States except in courts ordained and established by itself. (b) General statement of relations of state and federal courts. 1st. Concurrent jurisdiction in many matters of original cognizance in United States Courts. 2d. Original general jurisdiction in state courts of all matters not committed by the Constitution to the judicial power of the United States. 14. Difficulties and Dangers Involved in these Rela- tions. (a) Results, striking evidence of civil capacity of Amer- ican people. 15. Statement of Cases in which United States Courts follow State Decisions. 1st. Statutes of States and construction of them by high- est court of state, binding and conclusive on courts of United States in all cases where such statutes so construed are not in conflict with the Constitution, &c, and where such decisions can be regarded as the settled and fixed law of the State. 2d. Whenever, in the Judgment of the United States courts, such statntes as construed by state courts are in conflict with Constitution of United States, or whenever 64 SYJFOPSIS OF LEC1 URES. they are conflicting, so that they cannot be regarded as the settled law of State, United States courts not bound by them. 3d. That in questions affecting property rights, and especially real property, United States courts regard them- selves as specially bound to follow decisions of state court. 4th. That these rules are always subject to the qualifica- tion that the state statutes and decisions shall violate no right secured by the Constitution, laws and treaties of the United States. 5th. That in cases which fall under the denomination of general commercial law, and cases involving questions of public policy, or of general equity jurisprudence, United States Courts are not bound by decisions of state courts.