((nrnfU Slam ^rtynol Kibtarg Cornell University Library KF 4550.Z9C77 1891 The general principles of constitutional 3 1924 019 959 075 DATE DUE nS^w2- 1 1 i 1 QAYLORD PRINTED IN U.S.A. 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/cu31 92401 9959075 THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA. THOMAS M.^dOOLEY, LL.D., ADTHOH OF "CONSTITUTIONAL LIMITATIONS," ETC. Second Edition Br ALEXIS C. ANGELL, OF THE DETROIT BAB. BOSTON: LITTLE, BKOWN, AND COMPANY. 1891. Copyright, 1880, By Thomas M. Cooley. ^6736 Copyright, 1891, By Little, Bkown, and Company. University Press; John Wilson and Son, Cambridge. PREFACE. The manual which follows has been prepared for the use of students in law schools and other institu- tions of learning. The design has been to present succinctly the general principles of constitutional law, whether they pertain to the federal system, or to the state system, or to both. Formerly, the structure of the federal constitutional government was so distinct from that of the States, that each might usefully be examined and discussed apart from the other; but the points of contact and dependence have been so largely increased by the recent amendments to the federal Constitution that a different course is now deemed advisable. Some general principles of con- stitutional law, which formerly were left exclusively to state protection, are now brought within the pur- view of the federal power, and any useful presenta- tion of them must show the part they take in federal as well as state government. An attempt has been made to do this in the following pages. IT PBEFACE. The reader will soon discover that mere theories have received very little attention, and that the prin- ciples stated are those which have been settled, judi- cially or otherwise, in the practical working of the government. THOMAS M. COOLEY. University op Michigan, Ann Aeboe, March, 1880. PREFACE TO THE SECOND EDITIOI^. In the preparation of this edition, such changes in the text and notes of the first edition have been made as have been required by the many important deci- sions upon constitutional questions rendered within the last ten years. While the aim has been to keep the book a manual and not to make it a digest, it will be found, it is hoped, to treat briefly all important points covered by the cases decided up to this time. ALEXIS C. ANGELL. Deteoit, August, 1891. CONTENTS. PAGE Table of Cases ix Constitution of the United States xxix CHAPTER I. The Rise of the American Union 3 CHAPTER n. Definitions and General Principles 19 I CHAPTER HI. Distribution of the Powers of Government ... 41 CHAPTER iV. ^^ The Powers of Congress . . . . ■ 53 - Sect. 1. Taxes, Loans, and Debts 53 J " 2. Regulation of Commerce 6^ " 3. Naturalization 79 " 4. Bankruptcy 80 " 5. The Currency 81 VI CONTENTS. PAGE Sect. 6. Bills of Credit 84 7. Weights and Measures 85 8. Counterfeiting 85 9. Post-Offices and Post-Roads 85 10. Copyrights and Patents ........ 86 11. Piracies, Felonies on the High Seas, &c. . . . 88 12. War 88 13. Ceded Districts 93 14. Treason 94 15. Non-enumerated and Implied Powers .... 94 16. Restrictions on the Powers of Congress . . . 100 CHAPTER V. The Powers of the Federal Executive .... 103 CJIAPTER VI. The Judicial Department of the Federal Govern- ment Ill CHAPTER VII. Checks and Balances in Government 148 CHAPTER VIII. The Government of the Territories 170 CHAPTER IX. • The Admission of New States 175 CHAPTER X. Constitutional Rules of State Comity .... 184 CONTENTS. vii CHAPTER XI. PASE The Guaranty of Republican Government to the States 202 CHAPTER XII. The Amendments to the Constitution 207 CHAPTER XIII. Civil Rights and their Guaranties 213 Sect. 1. Religious Liberty 213 " 2. Security of the Dwelling, and of the Person and - Papers 211, " 3. The Prohibition of Slavery ....... 222 " 4. The Guaranties of Life, Liberty, and Equality . 529 " 5. Jury Trial in Civil Cases 248 CHAPTER XIV. Political Privileges and their Protections . . 252 Sect. 1. Citizenship 2.52 " 2. Suffrage and Elections 259 " 8. The Right of Assembly and Petition .... 278 " 4. The Right to keep and bear Arms 281 " 5. Freedom of Speech and of the Press .... 283 CHAPTER XV. Protections to Persons accused of Crime Sect. 1. Legislative Adjudications 2. Treason : its Definition and Punishment 3. The Writ of Habeas Corpus .... 4. Accusations of Crime . .a .... 5. Bail 6. Incidents of the Trial and Punishment 294 294 298 299 301 302 303 VIU CONTENTS. CHAPTER XVI. FAGS Protections to Contracts and Property .... 311 Sect. 1. Laws impairing the Obligation of Contracts . 311 " 2. Protection to Property < . . . 327 " 3. The Eminent Domain 344 CHAPTER XVII. Municipal Corporations 358 INDEX 361 TABLE OF CASES. Abendroth v. Manhattan El. Ry. Co. Ableman v. Booth Co- Affold Estate, Re Ahl V. Gleim . . . Alabama v. Georgia Alabama, &c. R, R Kenny . Alaska, The . . . Albany St., Matter of Albertson v. Landon Alexander v. Bennett Alexandria & F. Ry. Co exandria, &c. R. R, " Allen V. Archer , , V. Jay . . . V. Pioneer Press Co. Almy V. California Alter's Appeal . American Ins. Co. v. Canter 354 21, 30, 34, 100, 120, 136, 258 81 338 121 Co, Al- 319 119 357 339 43 350 339 . 57 . 293 56,72 . 337 35, 51, 89, 106, 144, 171, 174 American Tel. Co. v. Pearce . 350 Ames V. Kansas 116 Ames Iron Works v. Warren . 185 Anderson v. Dunn .... 97, 310 Andrews v. Beane 43 !). Pond 186 V. State 283 Apple, Estate of 185 Armstrong v. Carson .... 191 V. Toler 186 Armstrong Foundry Case . . 106 Arnott«.Webb 192 Arrowsmith v. Gleason . . . 142 ». Harmoning 230 Ash V. Baltimore, &c. R. R. Co. 188 Asher v, Texas 70 Astor V. New York .... 339 Atkinson v. Dunlap .... 340 Atlanta v. Green 352 Atlantic, &c. Tel. Co. v. Chi- cago, &c. R. R. Co. ... 360 Attorney-General v. Barstow . 272 V. Detroit 263 V. Eau Claire 57 V. Ely 265 V. Supervisors 267 Auditor of State v. Railroad Co 51 Auffmordt v. Hedden .... 249 Avon, The 119 Ayers, In re 123, 137 B. . 310 . 114 . 249 . 124 . 322 . 116 . 159 . 242 . 162 81, 326 Bachelder v. Moore Bachrack v, Norton Backus V. Lebanon Bailey v. Dozier V. Railroad Co. Baiz, In re . . Baker v. Braman V, Portland . II. State . . Baldwin v. Hale V. Trowbridge Baltimore v. State Bank, The, v. The Mayor . . 62 V. Supervisors . . .60, 62, 272 Bank of Augusta «. Earle 185, 18:) Bank of Columbia v. Okely . 232 Bank of Kentucky v, Wister . 123 Bank of United States v. Don- allv 186, 187 Halstead .... 144, 147 261 156, 360 Bank Tax Case . Barber v. Ivwin . . Barbier v. Connolly Barings v. Dabney 21, 60 . . 90 237, 238, 239, 321 . . 325 TABLE OP CASES. Barker «. People 3U8 Barnes v. Adams ... . 266 V. District of Columbia 316, 359 V. Suddard 190 V. Whutaker 188 Barnett v. People 309 JBanon v. Baltimore . . . 18 V. Burnside .... 133, 190 Barry v. Arnaud .... 129 V. Lauck 267 V. Mercein 224 Bartlett v. Christhilf .... 287 V. Crittenden . ... 87 V. Lang . . .... 342 Barto V. Himrod .... 100 Bates V. Chapman 42 V. Kimball 151 V. Taylor 164 Batman v. Megowan .... 273 Baxter r. Brodks . . 273 Beach v. Walker 338 Beatty v. Benton 116 Bebee v. State 155 Beekman v. Saratoga, &c. B. R. Co 347 Beer Co. v. Massachusetts . . 243, 315, 323 Peers v. Arkansas 315 Belfast, The 117, 119 Belgenland, The 118 Bell V. Morrison . . . 325, 340 Benner v. Porter 174 Bennett v. Bull 155 V. Fulmer 162 Berry v. Ramsdell 341 Bevard v. Hoffman .... 162 Bigelow V. Forrest 94 Billings V. Lafferty .... 162 Binghamton Bridge Case . . 320 Bird V. State 306 Bissell V. Penrose 147 Blake v. United States ... 107 Blanchard v. Sprague ... 87 Blanchard's Factory .... 87 Bloodgood V. Railroad Co. . . 348 Bloom's Case 307 Bloomer ». Stolley . . . . 81,101 Board of Education v. Mayor . 153 Bock V. Perkins 114 Bogert, Re 144 Bohannon v. Commonwealth . 220 Boiling V. Lersner 115 BoUman, Ex parte 299 Boom Co. J). Patterson . . . 129 Booth V. Woodbury ... 58, 338 Bors V. Preston .... 116, 125 Boston, &c. R. R. Co., In re . 350 Ry. Boston, &c. R. R. Co. v. State . Bostwick V. Perkins Boswell V. Otis . . V. State . . . Bourland v. Hildreth Bourne v. The King Bowerbank v. Morris Bowman v. Chicago, &c. Co. . . . Bovce V. Sinclair . . " V. Tabb .... Boyer, Ex parte . . Bradford v. Brooks V. Shine . . Bradley, Ex parte . . Bradley v. Fisher . . :;. Heath . . . Brads li aw v. Lankford Bradwell v. State . . Breeding v. Davis . Breitung v. Lindauer . Brent v. Chapman . . Brick Presbyterian Church New York .... Bridges, Ex parte . . Bridges v. Shallcross . Briggs V. Lewiston, &c. Co Brigham v. Cabbtt . Bright Star, The . Brimmer v. Rebman Brinton v. Seevers . Brisbin v. Cleary . Briscoe v. Bank of Kentucky Page 322 330 193 308 266 307 108 71 . 338 . 1S9 . 119 . 43 . 340 . 310 . 310 280 360 . 243 . 334 . 340 43, 340 316 134 365 124 . 70 . 336 . 264 . 28, 84, 153 Broadhead v. Milwaukee . . 57 Broadway Church v. McAtee . 216 Bronson v. Kinzie . . . 313, 341 Brooklyn Park Com'rs v. Arm- strong 347 Broughton v. Petisacola . . . 325 Brown, Ex parte 90 Brown v. Cape Girardeau . . 161 V. Duchesne 87 V. Grover ...... 262 V. Houston 68, 77 V. Maryland 70 V. New" York 336 V. State 305 V. Trousdale 130 V. United States ... 83 Brownson v. Rodes . . 83 Bruce «. Railroad Co. . . . 188 Brvant v. Hunters 192 Bucher v. Cheshire R. R. Co. 138, 139 Buck V. Colbath 143 Bull f). Couroe 315 V. Read 155 TABLE OP CASES. XI BuTch V. Newberry -Burgess v. Seligman Burghardt v. Turner Burke v. Gaines V. Mascarich . Burkett v. McCarty Burlington v. Leebrick Burns, Ex parte Barnside v. Lincoln Co Burrus, In re Burt V. Brigliam Burtt V. Pylrt . Bush ». Kentucky Busliel's Case . Buslinel's Case . Batcher's Union Co. v City Co Page 43 140 334 335 290 262 51 42 154 . 135 ... 346 ... 310 131, 237 ... 305 ... 141 Crescent 316, 323 Ct. Butler V. Boston, &c. S S. Co. 118. 119 V. Gage 153 V. Horwitz 83 V. Pennsylvania .... 315 V. People 182 V. Toledo 339 Cabrera, Ex parte 142 Cade V. Davis ] 85 Calder a. Bull 28, 30, 34, 43, 297 v. Kirby . .... 315 V. Texas 306 Caledonia Ev. Co. o. Walker's Trustees .". 352 California v. Pacific R. R. Co. 60, 141 California Pac. E. R. Co., Ke . 81 Callan v. Wilson 250 Callanan v. Hurley .... 342 Callen v. Junction City ... 51 Callison v. Hedrick .... 357 Campau v. Detroit 159 Campbell v. Holt 340 V. State 309 V. Wade 332 Cancemi v. People .... 250, 305 Gannon, In re 200 V. New Orleans .... 78 Carbee v. Mason 326 Cardwell v. Amer. Bridge Co. . 77 Carew v. Rutherford .... 247 Garleton v. Goodwin's Exr. . 43 Carlisle v. United States . . 105 Carlow V. Aultman 190 Carpenter v. Rogers .... 171 e. Strange 193 Page Carr o. Gale 250 Carson River, &c. Co. v. Barrett 173 Carter v. Harrison 162 Gary Library v. Bliss .... 312 Casborus v. People .... 309 Case V. Kelly 133 Cash, Appellant 335 Celestine, The 142 Central Bridge Corp. v. Lowell 380 Central R. E. Co. e. Georgia Constr. Co 197 Chadwick v. Melviu .... 268 ChafFe v. Aaron 342 Chambers v. Church . . 186, 197 Chapman v. Toy Long . . . 242 Charles River Bridget. Warren Bridge 236, 319, 356 Chase v. Chase 241 Cheaney v. Hooser 57 Cheever v. Wilson . . 192, 330 Cherokee Nation v. Georgia . 121 1). Sou. Kan. Ry. Co. 345, 357 Cherokee Tobacco, The ... 31 Chestnut v. Shane's Lessee . . 336 Chicago V. Eobbins . . . 139 V. People 267 Chicago Life Ins. Co. v. Needles 322 Chicago, &c. E. R. Co. v. Hag- gerty . . .322 V. Iowa 245, 323 V. People . . . 267, 322 V. Williams . ... 244 Chicago, &c. Ey. Co. u. Guffey 318 V. Mmnesota ... . 324 Childs V. Shower 343 Chinese Exclusion Case . . 31 Chirac v. Chirac . . .79 Chisholm v. Georgia 17, 26, 100, 122 ' Christ Church v. Philadelphia 216, ■ 315, 317 Christian v. Atlantic, &c. E. E. Co 123 Christmas v. Russell .... 143 Chv Lung V, Freeman . . 72 CitV Bank v. Skelton . .142 Civil Eights Cases 30, 229, 230, 245 Clark, Matter of . ... 398 Clark ». Barnard 122 V. McKenzie .... 272 V. Smith 140 ». White 348 Clarke v. State 297 Clay V. Field 137 Clayton v. Calhoun .... 153 V. Utah 114, 173 Cleveland, In re .... 43, 62 Clinton v. Englebrecht . 144, 173 Xll TABLE OF CASES. Page Clough V. Curtis . . . 144, 154 Coats !>. Hill 340 Coe V. Errol 72 Coffin V. Coffin 48 V. Tracy 330 Coffman v. Keightley . . . 338 Cofrode v. Circuit Judge 189, 197 Coliens V. Virginia 2B, 93, 100, 124 Cole V. Cunningham .... 193 V. La Grange 57 Coleman v. Tennessee . . . 146 Coll V. Board of Canvassers . 272 Collector v, Dav 60 Columbus, &c. Ev. Co. ». Withe- row ....".. . 350, 352 Comanche Co. v. Lewis . . . 359 Commerce, The ... . 118, 119 Commissioners v. Bowie . . . 357 V. Henry 357 Common Council v.. Rush . . 264 Commonwealth v. Alger . . . 238 V. Bird 3.33 V. Blanding 283 V. Clary 94, 256 ». Deacon 199 V. Downing 309 r. Emminger 272 ». Freelove 306 V. Hall 297 V. Hart 308 ?'. Hawes 200 V. Hippie 43 V. Hitchings 159 V. Intoxicating Liquors . 324 V. Jones 269 V. Kneeland 216 V. Lane 187 V. Leech 273 ». Marshall 339 V. McCloskey 155 V, Pennsylvania Canal Co. 350 V. Porter ...... 307 V. Potts ,159 V. Wolf , . . 216 Comstock, Re 189 Comstock V. Gay 334 Confiscation Cases 326 Conklin v. New York &c. Ry. Co 350 Conner v. Elliott .... 195, 196 Consequa v. Williags . . . 250 Consolidated CannelCo. v. Cent. Pac. R. R. Co 348 Converse, In re 230 Conway v. Cable 339 V, Taylor 76 Cook J). Oliirer 178 Page Cook !). Pennsylvania ... 70 V. United States . . 297, 304 Coolev V. Wardens . . . 21, 75 Cooper, Re 310,347 Cooper V. Reynolds .... 193 V. Telfair 295 Cope V. Cope 173 V. Vallette Dry Dock Co. . 119 Corfield ». Coryell . ^. . 120, 195 Cory V. Carter ,..*... 242 Cottrel V. Dnion Pac. Ry. Co. . 339 Council Bluffs v. Railroad Co. . 141 County Court v. Robinson . . 242 Coupland, Ex parte .... 90 Co veil V. Heyman ..... 143 Cowley V. Pulsifer 289 Craig V. Missouri 84 Crane v. Meginnis 241 Crandall v. Nevada . . . 257, 259 V. State 197 Cranson v. Smith 87 Crenshaw v. United States . . 315 Creston v. Nye 304 Cross V. Harrison 172 V. Hopkins 101 V. North Carolina ... 85 Crowell V. Hopkinton . . 57, 338 Crowley v. Christensen . . . 237 Cruikshanks v. Charleston . . 343 Crutcher i>. Kentucky ... 73 Cubreth, Ex parte 199 Cuddy, Petitioner 310 Cummings v. Missouri . . 32, 296 Cunningham v. Macon &e. R. R. Co 123 Cusick's Appeal 263 D. Dada v. Piper 287 Daggett V. Hudson .... 263 Daily Post Co. v. McArthur . 293 Dale'i). Irwin 267 Daly V. Sheriff 142 Dana, Matter of 250 Daniel Ball, The .... 66, 76 Danville v. Pace .... 158, 342 D'Arcy v. Allain i 247 V. Ketohum .... 192, 193 Darrington v. State Bank . . 85 Darst V. People 236 Dartmouth College ». Wood- ward 232, 320, 359 Davidson v. New Orleans 231, 234, 343 TABLE OP CASES. Xlll Page Davies v. McKeeby .... 262 Davis's Case 199 Davis V. Season 214 V. Ctiicago &c. R. E. Co. . 354 V. Packard 117 V. Railroad Co 188 V. South Carolina . . . 132 V. State Bank 338 S.Texas 230 Davison v. Duncan .... 48 Dawkins v. Pawlet .... 287 Day V. Kent 266 DeCamp v. Hibernia K. R. Co. 348 Deckert, Re 81 De Cuir v. Benson 245 Deffeback v. Halwke .... 61 De Giacomo, In re 298 Dekrafft v. Barney .... 136 Delano v. Bartlett 262 V. Morgan 268 Delmar o. Insurance Co. . . . 326 Dennick v. Railroad Co. . . . 188 Denny v. Mattoon 338 V. Pironi 124 Dent V. West Virginia 232, 243, 328 Denton, In re . , 310 Denver v. Bayer 352 Denver, &c. Ry. Co. v. Bourne 352 De Sauasure v. Gaillard . . 115, 122 Despard v. Churchill .... 185 Detroit V. Osborne 139 Deutzel v. Waldie 336 Devisser v. Blackstone . . . 143 De Wolf V. Johnson .... 186 Dickey v. Hurlburt .... 267 V. Turnpike Co 86 Diggs V. Wolcott 142 Dimes v. Proprietors .... 356 Dixon V. Parmelee 307 Dobbins v. Commissioners . . 60 Dobyns v. Weadon .... 266 Dodge V. Brooks 267 V. Woolsey .... 31, 125 Doe V. Braden 31, 106 Doolan v. Carr 114 Dorr, Ex parte 136 Dorris v. Grace 89 Dorsey, In re 269 Dorsey v. Dorsey 43 Douglass V. Pike Co 312 Dow V. Beidelman 324 Dowling V. State 297 Dovle V. Insurance Co. . . . 161 Drainage of Lands, Matter of . 349 Drake v. State 292 Drehman v. Stifel 301 Ducat V. Chicago 189 Duke V. Asbee . . Dunham v. Powers Durach's Appeal . Durand v. HoUis . Dwight V. Eice . . Page 271 287 101 104 163 E. Eagle, The 118 Eames, Ex parte 81 Eastern E. R. Co. v. Boston. &c. R. R. Co ; 319 East Hartford v. Bridge Co. . 316 East Kingston v. Towle ... 343 East Saginaw Salt Co. v. East Saginaw 315, 318 East St. Louis v. O'Flynn . . 352 Edmundson v. Pittsburgh, &c. R. R. Co 352 Edwards v. Elliott 18 V. Tanneret 50 Edwards's Lessee v. Darby . . 147 Eggleston v. Strader . ." . . 266 Eilenbecker v. Dist. Ct. . . . 234 Elk V. Wilkins 254, 262 Elliott V. Fair Haven, &c. E. E. Co 355 Elmwood V. Marey . . . 138, 139 Embury v. Connor .... 154 Enfield v. .Jordan 140 Knnis v. Smith 185 Entick V. Carrington .... 220 Equitable Life Ass. Soc. v. Pet- tus 186 Escanaba Co. v. Chicago . . 77 Esmond, In re 307 Essex Board v. Skinkle . . . 316 Evans v. Eaton 87 Ewing V. Fuller 273 Express Co. v, Kountze . . . 174 Fairfield v. Gallatin . . . 139 Fairman v. Ives . . . . 281 Fargo «. Michigan . . . . 73 Farrington v. Tennessee . 320 . V. Turner .... . 267 Fausler v. Parsons . . . 162 Feineman v. Sachs . . . 186 Feldraan v. Charleston . . -57 Fell V. State .... . 315 Fellows V. Blacksmith . 106 XIV TABLE OP GASES. Page Fenton v, Scott 265 Ferris v. Higley 173 Ferry Co. v. East St. Louis . . 76 Fertilizing Co. v, Hyde Park . 316, 318, 323 Field, Ex parte 300 Field V. Gibbs 191 V. People 42 First National Bank v. Price . 188 Fisher v. McGirr . . 219, 236, 329 Fisk y. Jefiersou Police Jury . 312, 315, 324 Fitchburg, &o. R. R. Co. v. Grand Junction R. B. Co 322 . 186 312, 313 121 354 179 174 160, Flagg V. Baldwin Fletcher v. Peck Florida v. Georgia Fobes V. Rome, &c. E. E. Co Ford ». Surget . . . Forsyth v. tinited States Fort Dodge »., District Township 267 31 Fort Leavenworth E. E. Co Lowe Fort St. &c. Co. V. Morton Foster v. County Commissrs. V. Essex Bank V. Master, &c. V. Neilson . V. Scarff Fowler v. Lindsej' Fox V. Hempfield R. R. Co. V. Ohio Franklin School ». Bailey Freeland v. Hastings V. Williams . Freeman u. Howe Freeport v. Marks Freer v. Ford French v. Nolan Fretz V. Bull Fries's Case . . Frolickstein v. Mobile . Fuller V. Steiglitz , . Furmau v. Nichols . 94 . 347 . 141 . 336 . 69 106, 146 . 122 . 143 . 85 . 312 . 57 301, 341 . 143 . 162 . 154 118 299 216 185 313 G. 1 V. Caraher 342 Games v. Buford . . . 248, 332 V. Fuentes .... 113, 132 V. Relf 194 V. Thompson 108 Gainesville, &c. R. R. Co. v. Hall 352 Galena v. Amv 325 Galesburg v, fiawkinson . . 51 Page Galpin v. Page 192 Gantley's Lessee v. Ewing . . 341 Garcia v. Lee 106 Garland. Ex parte . . . 105, 269 Garnett, Ex parte .... 118 Garr v. Selden 287 Garvey's Case 309 Garvey ». People 297 Gassett ». Gilbert 291 Gazette Co. v. Timberlake . . 289 Gelpcke r. Dubuque .... 140 Gelston v. Hoyt 146 General Cass, Tlie .... 118 Genesee Chief, The ... . 118 Geof roy v. Riggs 93 Georgia v. Atkins 60 V. Stanton .... 110, 146 Georgia K, R. Co. v. Smith . 324 Gerard v. People 309 Gibbons v. Ogdeu . 27, 28, 37, 64, 65, 69 Gibbs V. Gale 342 Gibson v. Chouteau .... 341 V. Lyon 139 Oilman ». Philadelphia . . 28, 77 V. Sheboygan 317 Ginn v. Rogers 330 Gloucester Ferry Co. v. Pennsyl- vania 73 Glover v. Tavlor 271 Godfrey v. Terry 112 Goetcheus v. Mathewsou . . 162 Golden v. Prince .... 30, 34 Gold Washing, &c. Co. v. Keyes 133 Gon-Shav-Ee, Petitioner ... 144 Goodell, "Matter of .... 243 Goodell V. Jackson .... 254 Gordon v. Caldcleugh . . . 115 V. Farrar 162 Gorman v. Havird .... 137 Gormley v. Clark 139 Goshen v. Stonington . . . 337 Goshorn v. Purcell .... 336 Gottschalk v. Chicago, &o. Rv. Co 352 Governor v. Madrazo .... 122 Graham v. Monseigh .... 188 Grand Rapids, &c. Booming Co. V. Jarvis 355 Grape Shot, The ... 50, 89, 90 Grattan v. Appleton .... 186 Graves v. Corbin 130 Gray v. Pentland ..... 281 Green, In re 261 Green v. Bridgeton .... 244 V. Briggs .... 219, 250 TABLE OP CASES. XV Page Green ». Collins 330 V. Neal's Lessee .... 139 V. Shumway 262 V. State 351 1). Van Buskirk . . . 185, 192 Greenough v. Greenough . 43, 337 Greenville, &c. R. K. Co. u. Partlow 357 Greenwood v. Freight Co. . . 323 Grenada Co. Superv. v. Brog- den 160 Grier v. Shaokleford .... 273 Griffin v. Coleman .... 222 V. Cunningham .... 332 V. Wilcox 301, 340 Grim v. School District ... 54 Grimiey, In re 90, 145 Grimmett v. State 304 Griner, In re 91 Groesbeck v. Seeley ... 44, 343 Grogan v. San Francisco . . 316 Gross V. D. S. M'tge Co. . . 336 Grover & B M. Co. v. Kad- cliffg ^ 292 Gulf C, &o. Ry. Co. v. Fuller ". 352 Guliok «. New 268 Gumbel v. Pitkin 143 Gunn V. Barrv . 32, 324. 325, 327 Gut V. State ".....'.. 297 Guy V. Baltimore .... 70, 197 H. Haas V. Railroad Co 322 Hagar v. Reclam. Dist. 232, 234, 343 Hagerstown ». Dechert . . 159 Hagood V. Southern .... 123 Hale V. Akers 115 Had i). De Cuir . . 68, 73, 245, 268 V. Keese 89 V. Wisconsin 315 Halsey v. St. Ry. Co 355 Hajn V. Smith 271 Hamilton v. Vleksburg, &c. R. R. Co 77 Hanimett v. Philadelphia . . 58 Hampton v. McConnell . 191, 192 Hananer u, Doane 179 V. Woodruff 179 Hani v. Ballon 342 Handloy v. Stutz 137 Hanley v. Donoghue . . 192, 195 Hanover e. Turner .... 231 Hans V. Louisiana .... 122 Harbaugh ». Ciootte .... 267 Harris v. Dannie ..... 79 D. Hardeman 192 V. People 305 Harrisburg, The 119 Harrison v. Hadley 126 Hart V. Bostwick 341 V. Evans ....... 265 Hartman v. Greenhow . . . 314 Harvey v. Richards .... 185 V. Tama Co 271 V. Thomas 348 Hasbrouck v. Milwaukee . . 359 Haskell v. New Bedford . . . 154 Hatch V. Burroughs .... 179 Hatcheson v. Tilder .... 268 Hathon v. Lyon 334 Hauenstein v. Lynham ... 31 Hawkins v. The Governor . . 164 Hayburn's Case 51 Hayes v. Missouri 237 V. Press Co. ..... 289 Haynes v. United States . . . 105 Hazard v. Railroad Co. . . . 133 Head v. Amoskeag Co. . . 348 V. Universitv 315 Head Money Cases . . 31, 72, 106 Heath, Ex parte . . . 266, 272 Hector v. State 309 Heidretter v. Oil-cloth Co. . . 142 Heine v. Levee Commissioners 51, 144 Henderson v. Coal Co. . . . 137 V. Minneapolis .... 350 V. New York .... 64, 71 Henderson's Distilled Spirits . 344 Hennen, Ex parte 107 Hepburn v. Ellzey 124 V. Griswold 82 Herdic »>. Roessler 87 Hess V. Johnson 301 Hey Sing Jeck v. Anderson . . 219 Hickman v. Jones . . . . 251 Hicks V Steigleman .... 340 Hilbish V. Catherman .... 54 Hildreth v. Lowell 347 Hill V. Sunderland 43 V. Townsend 186 Hilliard v. Miller 337 Hine, The 117 Hiss V. Bartlett 46 Ho Ah Kow V. Nunan ., . . 308 Hoar ». Wood 287 Hoare v. Silverlock . . . 289 Hobbs & Johnson, Ex rel. . 224, 240 Hodges V. Bait. Pass. Ry. Co. 355 Hoffman v. Hoffman . . . 241, 330 Hoke V. Henderson .... 231 XVI TABLE OF CASES. Page Holbrook v. Finney .... 334 Holiday B. Pitt 48 Hi.Uand D. nhallen 140 Hollida».Hunt 87 Holmes v. Jennison .... 91 Home Ins. Co. v. City Council 318 V. New York 237 Hooker v. Hooker 43 Hoover v. Wood 153 Hope V. Johnson 342 Hopkins v. McLure .... 116 Hoppia V. Jenckes 48 Hope J). Utah 297 Horbaoh v. Miller 340 Horn V. Lockhart 179 Hornbuckle v. Toombs . . . 144 Hornby v. Close 247 Hornet, The 146 Hot Springs E. R. Co. v. Wil- liamson 352 Houseman v. Kent Circ. Judge 339 Houston V. Moore .... 79, 91 Howard v. Cooper 267 V. Thompson 281 Howell V. Bristol 359 V. Jackson 244 V. State 55 Hubbard v. Brainerd .... 340 Huber v. Reilly . . . 262, 269 Hughes's Case . . . , , . , . 198 Huidekoper «. Douglas . . . 313 Huling V. Kailwar Company . 234 Hung Hang, Ex parte . . 116, 135 Hunt V. Sheldon 270 Hurtado v. California . . . 233 Huse V. Glover 76, 77 Hutchinson v. Parkersburg . . 352 Hvde V. Brush 263 Hylton V. United States ... 61 Imlay v. Union, &c. E. R. Co. . 354 Indianapolis B. & W. Ey. Co. B. Eberle 354 Inman Steamship Co. v. Tinker 78 Insurance Co. v. Brown . . . 324 V. Francis 125 V. Morse . . . 133, 190, 257 V. Pechner 133 V. Eodel 251 Iowa, &c. Co. V. Soper . . . 339 Iron Mt. R. E. Co. v. Bing- ham 354 Irvine v. Sim's Lessee . . ■ 138 J. Page Jackson, Ex parte 86 Jackson v. Ashton ..... 124 ». Commonwealth . . . 306 V. Goodell 67 V. The Magnolia .... 118 Jackson Iron Co. v. Auditor- General 78 Jacquette v. Hugunon . . . 193 James Gray, The, v. The John Eraser 75 Janes v. Eeynolds 231 Jecker ii. Montgomery . . 50, 90 Jefferson Branch Bank v. Skelly 31, 139 Jeffries v. Ankeny 162 Jenkins, Ex parte 134 Johnson t). Chicago, &c. El. Co. 117, 119 V. Jones 301, 340 D. Jurael 126 V. Mcintosh 67 V. Powers 193 V. Railroad Co 161 V. Riley 199 V. Waters 142 Jones V. Habersham .... 185 V. Perry 42 V. Surprise 186 V. United States ... 88, 146 Judkins v. Sill ..... 267 Julia Bldg. Ass. v. Bell Tel. Co 350 Justices V. Murray . . . .18, 251 K. Kaine, Matter of 135 Kanawha Coal Co. v. Kanawha, &c. Coal Co 180 Kane v. Metr. El. Ry. Co. . . 354 Kansas, &c. Ry. Co. v. Cuyken- dall . 354 Kansas City, &c. E. E. Co. v. Daughtry 133 Kansas Indians, The .... 146 Kearney v. Taylor 338 Kehrer v. Eichmond .... 351 Keith V. Clark . . . 178, 179, 313 Kellogg V. State Ti-easurer . . 160 Kelly V. Pittsburgh .... 234 V. United States .... 94 Kemmler, In re 308 Kendall v. United States 104, 110, 161 TABLE OF CASES. XVll 21 Co Eennard v. Louisiana Kenneth's Petition Kentucky Bailroad Tax Kentucky v. Dennison 116, Keppel V. Railroad Co. Ker V. Illinois . . . Kerrigan, Ex parte Kershaw v. Bailey . . Keyes v. United States Kidd V. Pearson . . Kilbourn v. Thompson Kimmish v. Ball . . Kincaid v. Ind. Nat. Gas King V. Root ... King, The, v. Abingdon V. Creevey . . . Kingsbury's Case . . Kinney v. Beverley . Kinypn v. Palmer . . Kirtlaud v. Hotchkiss Kisler v. Cameron . . Kneedler v. Lane . . Knote V. United States Kohl V. United States Kohlheimer v. State . Kosh Konong v. Burton Kreitz ». Behrensmeyer Kring v. Missouri . . Krippendorf v. Hyde . Kuback, Ex parte . . 27;^ 351 234, 237 198, 199 178 200 310 280 107 , 72, 243 47, 310 75, 195 . . 354 . 290 . 48 . 48 . 199 . 231 . 290 . 258 . 272 90, 92 . 106 345, 347 . 309 . 340 . 265 . 297 . 143 . 242 L. Lackland v. Railroad Co. . . 350 Lafayette Ins. Co. v. French . 189 Lafayette P. R. Co. v. Rail- road Co 351 Lahr v. Metr. El. R. R. Co. . . 354 Lamm v. Chicago, &c. Ry. Co ^. . . . . 354 Lammon v. Feusier .... 143 Lane, In re 136 Lane v. Cotton 128 V. Dorman 335 Lane Co. v. Oregon . . 26, 28, 83 Lange, Ex parte 307 Lanier v. Galatas 266 Lapeyre v. United States . . 105 Laramie Co. v. Albany Co. 316, 359 Lassitter v. Lee 340 Leach v. Money 220 Leathers v. Blessing .... 119 Le Bois V. BramSl 336 Leeper v. Texas 139 Page 238 43 82, 83, 96, 97 70, 71 241, 330 Lee Sing, In re . . . Leffingwell v. Warren Legal Tender Cases . Leisy v. Uardin . . Leith V. Leith ... Leloup V. Mobile 74 Lemmon v. People 197 Lent «. Tillson 234 Leon V. Galceran 117 Levan v. Millholland .... 331 Lewis V. Few 290 V. McElvain 337 V. Missouri 237 «. Webb 43 Lewis Co. V. Haj'es .... 173 License Cases 21, 75, 243, 321, 324 License Tax Cases 75, 141, 243, 321 Lincoln v. Uapgood .... 162 V. Smith 243 Lincoln Co. v. Luning . . . 123 Lindsay v. Commissioners . . 151 Lithograph Co. v. Sarony . . 87 Little V. Barreme . . ". 103, 164 Liverpool, &c. Nav, Co. v. Phenix Ins. Co. . . . 139, 186 Livingston Co. ». Welder . . 360 Livingston v. Jefferson . . . 188 Livmgstoue's Lessee v. Morse . 138 Loan Ass'n v. Topeka . . 54, 57 Lockhart v. Craig St. Ry. Co 355 V. Horn 340 Logan V. Stogsdale .... 34S Lonas v. State 240 Loney, In re 261 Long V. Long 163 Loomis :;. Jackson 267 Lord V. Steamship Co. . . 65, 69 Lotlirop V. Stedman .... 44 Lottawanna, The 117 Lotty, The 119 Loughborough v, Blake ... 93 Louisiana v. Jumel . . 123, 314 V. New Orleans , . . ■ 341 V. Pilsbury 312 Louisville Gas Co. v. Citizens' Gas Co 3]8 Louisville, &c. R. R. Co. v. Wangelin 130 Louisville, &c. Ry. Co. v. Mis- sissippi 75 Low V. Austin 70 Lowell 1!. Boston 67 Lucas V. Sawyer 334 V. Tucker 338 Ludwig V. Steward .... 341 Lusher v. Scites 161 XVIU TABLE OF CASES. Luther v. Borden Lynch «. State Page 24, 92, 145, 146, 204, 206, 301 .... 307 M. Mackin v. United States ... 302 Madison R. R. Co. v. Wljite-- neclt 155 Mahon v. Justice 200 Mallett V. Dexter 142 Manchester, Matter of . . . 199 Manchester v, Massachusetts, 75, 120 Manning v. Amv 133 Marbury v. Madison . 104, 108, 110, 116, 164 Markham v. Brown .... 244 Marsh «. Burroughs . . 146, 326 V. Ellsworth 287 Marshall v. Donovan .... 354 V. Railroad Co 313 Martin v. Hunter . . - 26, 27, 96, 100, 140 V. Mott 91, 144 Mather v, Ottawa 57 Mattingly v. District of Colum- bia 338 Maulsky v. Reifsnider . . . 287 Mauran v. Smith 164 Mayberry v. Kelly 153 Mayfield, Ex parte .... 135 Maynard v. Hill 173 Mayor of New York, Matter of 216 McXUister ». United States, 107, 174 McCafferty v. Guver .... 262 McCall, In re . ' 136 McCall V. California .... 73 V. McDowell 300 McCardle, Ex parte . 43, 161, 165 McCarthy v. Railroad Co. . . 188 McCarty v. State 302 McCorraick v. Ives .... 119 McCoy V. Grandy 343 McCracken v. Havward . 313, 325, 341 McCready v. Sexton .... 44 V. Virginia . . . 120, 196, 197 McCulloch V. Maryland . 27, 55, 69, 60, 96, 97 McDaniel v. Correll .... 338 McElmoyle v. Peters .... 192 McFadden v. Commonwealth . 308 McFarland v. Butler .... 340 McGahey v. Virginia .... 314 McKay V. Campbell .... 254 Page McKenna v. Fiske 188 McKinney v. O'Connor . . . 267 McMillan v. Anderson . . . 234 McNiel, Ex parte . . . 117, 140 Meacham v. Dow . . . 271, 813 Meade d. Deputy Marshal . . 145 Medford ». Learned .... 339 Medley, petitioner 297 Med way v. Needham .... 187 Memphis v. Brown .... 144 Menard v. Goggan 124 Merivale v. Carson .... 291 Merryman's Case . . . 164, 300 Messenger v. Mason .... 115 Metcalf V. Watertown . 114, 124 Metropolitan R. R. Co. v. Dis- trict 93 Metropolitan Tel. Co. v. Colwell Lead Co 350 Metzger, Ex parte 116 Milburn, Ex parte 135 Miller v. Birch 236 V. Dunn 339 V. Grandy 57 V. Rucker 162 V. United States ... 89, 94 V. White 340 Milligan, Ex parte . 32, 90, 145, 233 Milligan v. Hovey . . 103, 145, 163, 164, 301 Mills, In re 302 Mills V. Charleton . . 101, 338, 360 V. Duryea .... 191, 192 Miner's Bank v. Iowa . . . 173 Minnesota v. Barber .... 70 Minor v. Happersett . . .26, 262 Mirzau, Ex parte 136 Mississippi v. Johnson . . 24, 110 Missouri «. Iowa 121 Missouri Pac. Ry. Co. v. Humes 238 V. Mackey 238 Mitchell V. Deeds 339 V. Lemon 221 V. Murphy 327 V. Smale 130 Mobile V. Kimball .... 21, 76 Mobile, &c. R. R. Co. v. State 154 Monroe v. Collins 262 Montello, The 66^76 Montgomery v. Anderson . . 330 V. Elston 60, 141 Montross v. State 43 Moore v. Illinois 85 V. Koubly 173 V. Monroe 215 V. Quirk 60 Moran v. New Orleans ... 69 TABLE OF CASES. XIX Mordecai ». Lindsay .... 330 Morgan's S. S. Co. ». Louisiana, 21, 75 Mormon Church v. United States 97, ni Morris v. Gilmore 124 V. Miss. Pac. Ey. Co. . . 189 V. Powell 263 V. State 338 Morrissey, In re 90 Morton v. Sharkey .... 173 V. Skinner 198 Moses V. State 189 Moses Taylor, The 117 Mostyn v. Fabrigas .... 145 Mugler V. Kansas 21, 239, 243, 320 Mullan V. United States ... 108 MuUer, In re 106 Munday v. Rahway .... 51 Mundv V Monroe 325 Munn"j). Illinois . . 246, 321, 333 V. People 246 Munster v. Lamb 287 Murphy, Ex parte 267 Murphy v. People 333 V. Ramsey ... 35, 163, 173 Murray v. Charleston . 115, 314, 320 V. County Commissioners . 354 Murray's Lessee v. Hobokeu Land Co 230 Myers v. Moffet 267 Myrick V. Mich. Centr. E. E. Co 139 N. Nashua E. E. Corp. v. Boston, &c. R. R. Corp 125 National Bank o. United States 56 National Bank v. Yankton Co. 35, 171 Nations v. Johnson .... 192 Neagle, In re . . . 110, 134, 135 Neal V. Delaware 131 Nefzger v. Railroad Co. . . . 263 Nelson v. St. Martin's Parish . 326 New V. Walker ...... 87 Newcum v. Kirtley .... 266 New Hampshire v. Louisiana . 123 New Jersey v. Wilson . . 313, 317 New Orleans v. Houston . . . 317 New Orleans Gas Co. v. La. Light Co. 247, 312, 318, 323, 349 New Orleans Water Works v. La. Sugar Co. 115, 139, 312 ■<;. Rivers 247,318 Page New York «. Milu ...''.. 71 New York El. E. E. Co. v. Fifth Nat. Bank 354 Nichols V. Bridgeport .... 346 V. Mudgett 271 Nielsen, Petitioner .... 137 Noel V. Ewing 334 Nolan V. State 308 Norfolk, &c. E. E. Co. •«. Penn- sylvania 73 Norman v. Heist 231 North State M. Co. v. Field . . 190 Nugent V. State 309 O. Oakey v. Bennett 185 Oatman v. Bond 341 O'Brian v. Commonwealth . . 308 Ochiltree v. Eailroad Co. . . 326 Ogden V. Saunders 80, 160, 313, 326, 342 Ohio, &c. R. E. Co. v. Lackey 339 V. Wheeler 124, 125 Olcott V. Supervisors .... 140 Old Dom. S. S. Co. v. McKenna 247 Oler, The 119 Oliver v. McClure 43 Oliver Jordan, The .... 143 Olney v. Wharf 352 Omaha & N. P. Ev. Co. v, Jane- cek . . . . " 352 Opinion of Justices (138 Mass.) 42 Opinions of Judges (45 Me.) . 264 (58 Me.) 54 (64 Me.) 272 Orr V. Quimby 357 Ortman v. Greenraan .... 153 Osborn v. Bank of United States 60, 96, 114, 122, 123, 124 V. United States . . . 105, 106 . 160 . 136 . 263 . 115 Osburn v. Stanley Oteiza, In re . . . . Owensboro v. Hickman Owings V. Norwood . Pace V. Burgess 56, 78 Pacific C. S. S. Co. v. Com'rs . 69 Pacific Ins. Co. v. Soule ... 61 Pacific R. E. Eemoval Cases . 114 Pacific E. E. Co. v. Maguire 32, 317 XX TABLE OF CASES. Page Packet Co. «. Keokuk ... 78 Page V. Hardin ....;. 108 V. Mathews's Administra^ tor 43 Palfrey v. Boston .... 60, 141 Palmer v. Cuyahoga Co. . . 76 Pana «. Bowler 139 Parham v. Justices .... 55 Park V. Detroit Free Press Co. . 293 Parker v. Overman .... 62 V. United States .... 104 Parmelee v. Baldwin .... 162 V. Lawrence ..... 337 V. Thompson 44 Parrott's Chinese Case . ; . 31 Parsons v. Bedford . . . 248, 249 Passaic Bridges, The .... 65 Passenger Cases .... 64. 71 Patterson v. Boom Co. . . . 129 V. Kentucky 87 Paul V. Virginia .... 189, 196 Pawlet V. Clark 316, 359 Pearson v. Yewdall .... 2.S4 Peavey v. Bobbins 162 Peete 'v. Morgan ..... 78 Peik V. Chicago, &c. R. R. Co. . 245 Pembina Mining Co. v. Penn- sylvania 196,237 Penn's Case 305 Pennie v. Reis 314 Pennoyer ». McConnaughy . 124, 314 ». NefE 194 Pennsylvania Co., In re . . . 130 Pennsj'lvania Hall, In re . . 360 Pennsylvania B. R. Co. o. Canal Commissioners . . . 318 V. Duncan 320 V. Lewis 322 V. Lippincott 352 V. Marchant 352 V. Miller 321 V. Riblet 155 Pennsvlvania S. V. R. E. Co. V. Walsh 352 Pennsylvania Tel. Co., In re . 37 Pensacola Tel. Co. «. West U. Tel. Co. ... 37, 64, 65, 190 People V. Barrett 308 V. Bell 263 V. Brady 199 V. Brenahm 264 V. Brooklyn 55 V. Canaday 262 V. Cicotte 265 V. Coleman 197 V. Commissioner .... 62 V. Common Council . . . 345 Page People ». Compagnie, &c. . 71,78 D. Cook 266 V. Cowles 264 V. Dawell 241, 330 V. Detroit 360 V. Draper 156, 360 V. Durston 161, 308 V. Ferguson 265 17. Freeman 42 V. Gallagher 242 V. Godfrey 94 V. Goodwin 273 V. Governor 164 V. Hamberg 308 V. Hartwell 264 V. Hatch 108 ». Billiard 272 V. Hoffman 263 V. Hnrlbut 101, 358 V. Kelsey 101 V. Kerr 355 V. Kerrigan 304 V. KoppTekom 263 V. Lynch .... 339, 35& «. Mahaney 156 V. Matteson 265 V. McManus 265 V. Mortimer . .• . . . 306 V. Osborn 42 V. Plank Road Co. . . . 322 V. Railroad Co 273 V. Railway Co 322 V. Eulogies 216 V. Sackett 266 V. Salomon 267 ti. Saxton 265 V. Seaman 265 V. Supervisors .... 339 V. Tyler 306, 308 Pereles v. Watertown . . . 341 Perkins, Ex parte 310 Perrett v. New Orleans Times . 293 Perrine v. Canal Co 236 Perry v. Washburn .... 54 V. Whittaker 272 Pervear v. Commonwealth . 18, 74 Phelps V. Schroder .... 272 Phenix Ins. Co., Ex parte . . 119 Philadelphia, &c. R. R. Co. v. Bowers 322 Philadelphia S. S. Co. u. Penn- svlvania 73 Phillips V. Watson .... 348 Phipps V. West. Md. R. R. Co. 354 Piatt V. People .... 271, 313 Pickard v. Pullman Car Co. . 73 Pierce r. Carskadon .... 296 TABLE OF CASES. XXI Pierce ». Drew 350 Pike Co. V. Barnes .... 267 Pingrev v. Washburn . . . 322 Piqua bank v. Knoop . . . 317 Pitman «. Bump 340 Pittock V. O'Neil 289 Pizano v. State 308 Pleasant T'p v. Ins. Co. . . . 140 Plymouth, The 119 Poindexter v. Greenhow 85, 124, 314, 325 Pollard's Lessee v. Hagan 183, 345 Pond V. People 220 Ponsford v. Johnson .... 187 Pope «. Curl 87 V. Phifer 359 Portland v. Bangor .... 236 Powell V. Pennsylvania . . . 244 Powers' Appeal 356 Powers V. Bears 357 Pratt V. Tefft ...... 334 Prentiss v. Brennan .... 256 Presser «. Illinois .... 18, 258 Preston v. Boston 330 Price V. Baker 268 Prigg V. Pennsylvania 140, 200, 201, 225 Pritchard v. Norton .... 186 Privett V. Biokford .... 269 Prize Cases 89, 103 Prospect Park, &c. E. E. Co. v. Williamson 350 Prout V Berry 43 Providence, &c. Ky. Co. v. Nor- wich, &c. E. E. Co. . . 350 PuUen V. Commissioners . . 55 Pullman P. C. Co. v. Pennsyl- vania 74 Pumpelly v. Green Bay Co. . 350 Purcell V. Lawler 291 Puterbaugh v. Smith 310 Q- Queen of Portugal v. Grymes . 121 Quinu V. State 262 R. Bail V. Potts 162 Railroad Commission Cases . 324 Eailroad Co. «. Alabama . . 125 V. Fuller 75, 322 Eailroad Co. v. Georgia V. Hecht . . V. Husen . . V. Jacksonville V. McClure . . V. Peniston «. Eeid . . . V. Richmond . V. Tennessee . Eailroad Companies v. Page lcl8, 320 . 341 71,75 . 316 . 32 . 317 37, 64 . 122 Gaines . 317, 320 Eailway Co. «. McShane . . 61 V. Whitton . . . 132, 140 Rand v. Commonwealth . . . 298 Randall v. Evening News Ass. 290 Randolph, Ex parte . . . 154 Randolph v. Good 262 Ratzky v. People ..... 297 Ray V. Gas Co 312 Read v. Plattsmoutb . . 336 Reade v. Sweetzer 291 Reardon v. San Francisco . . 352 Reel V. Elder 241 Rees' Appeal 347 Rees V. Watertown ... 51, 144 Reeves v. Treasurer, &c. . . 349 Reformed Church v. Schoolcraft 340 Reggel, Ex parte . . . 198, 199 Regina v. Newman .... 292 Reid v. Julian 267 Renaud v. Abbott 192 Renner v. Bennett . Eeynolds, Ex parte Reynolds v. Addeu V. Gear}' . . V. People . . V. Stockton . . V. United States Rhines v. Clark . . Rhode Island v. Massachusetts . .- 268 . . 254 . . 193 . . 243 . . 171 192, 193 173, 306 249 27, 121 Rice V. Austin 164 V. Foster 100 Eich V. Chicago 356 V. Flanders 342 Richardson v. Burlington . . 188 v. Eailroad Co 188 Eichmond, &c. R. E. Co. v. Louisa, &c. E. R. Co. . . . 349 Eichmond, &c. R. E. Co. w. Thouron 133 Eidings v, Johnson .... 140 Riggs V. Johnson Co 143 Eigney v. Chicago 352 Bio Grande E. R. Co. i». Gomila 143 Eison V. Farr 262 Risser v. Hoyt 43 xxu TABLE OP CASES. Page Roach V. Van Riswick ... 93 Robb V. Connolly 136 Robbins v. Shelby Taxing Dist. 64, 68, 70 Roberts v. Boston 242 V. RelUy .... 198, 199 Robertson v. Cease . . 112, 124 Robinson's Case 243 Robinson, Ex parte . . 134,310 Robinson v. Anderson . . . 124 1). Swope 348 Roche V. Waters 338 Rockland W. Co. v. Camden, &c. Co 319 Rockport V. Walden .... 340 Rogers I'. Cincinnati .... 143 Rolston V. Com'rs 124 Ross V. Davis 357 V. Irving 343 V. Leggett 221 V. Mclntyre . . 127, 302, 304 Routsoug V. Wolf . . . 337 Rowning ?). Goodchild . . ■ 128 Royall, Ex parte . ... 136 Rude V. St. Louis 352 Ruggles V. Simonton .... 142 Rundle v. Del. & R. Canal . . 188 Runge V. Franklin 287 Runkle v. United States ... 104 Runyan v. Coster 190 Ryan v. Tbomas 116 S. Sanders v. Getchell . . . 162 Sands v. Manistee Imp. Co. 76,77 Satterlee v. Mathewson . . 335 . 310 Savings Bank v. Allen . . 337 Sayles v. Davis .... . 60 Schneider v. Detroit . . . 350 Schoenheit v. Nelson . . . 342 Schoonmacker v. Gilmore . 117 Scott II. Jones ... 35, 121, 124 );. Randford . . 176, 225, 253 V. Young America . . 119 Scudder v. National Bank . 187 Sears v. Cottrell . . . . 158 347 110 188 Secomb v. Railroad Co. . . ^ Secretary v, McGarrahan . Selma, &;c. R. R. Co. v. Lacy , Setzler v. Pennsylvania, &c, R. R. Co Sharon v. Sharon 342 Sharop Railway Co.'s Appeal . 350 357 Page Sheehv v. Kansas City . . . 352 Shelbv V. Guv 139 Shelton D. Tiffin 124 Sherlock v. Allen 74 Sherwood v. Fleming .... 336 Shields v. Ohio 320 Shiner v. Jacobs 315 Shipman, Re 81 Shoe & L, Bank v. Wood . 186 Shoemaker v. French .... 142 V. Nesbit 162 Sholl V. German Coal Co. . . 348 Shonk V. Brown 337 Shortridge v. Macon .... 178 Shumwav v. Bennett ... 42, 51 Sidney's'Case .... 212, 298 Siebold, Ex parte 278 Sill V. Corning 158 V. Worswick 185 Silverman, Re 81 Simon v. Durham 272 Simons v. People 267 Sims's Case 141 Single V. Supervisors .... 337 Sinking Fund Cases .... 323 Sinks V. Reese 94, 256 Sinnot v. Davenport .... 69 Sioux City Ry. Co. v. Sioux City 323 Slabach v. Cushman .... 89 Slaughter w. Commonwealth . 197 Slaughter-House Cases . 28, 30, 75, 236, 239, 246, 247, 257 Smith, Ex parte ... 136, 198 Smith, Re 81 Smith J). Alabama .... 21, 76 V. Brown 269 V. Godfrey 186 V. Maryland . . 18, 120, 195 V. Moore 269 «. Mvers 164 V. OSell 173 V. Powditch 128 V. Speed ]53 V. Turner 79 Smith Purifier Co. v. SIcGroar- ty 137 Snow V. Perry 84 Society, &c. v. New Haven . . 125 V. New London .... 212 Somerville, &c. R. K. Co. ads. Doughty 357 Sommersett's Case .... 222 Soon Hing v. Crowlev 161, 237, 238, 242 Southern Pac. R. R. Co. v. Cali- fornia 139 TABLE OF CASES. XXIU Page Spencer ». Board of Registra- tion 259 Spies V. Illinois 18 Spinney, Ex parte . . . . 2-t3 Spooner v. McConnell ... 175 Spragins v. Houghton . . . 26^! Sprague v. Pitt 342 Spraigue v. Thompson ... 75 Spring Valley Water Works v. Schottler ' 246, 323 Springer v. United States . . 61 Sprott V. United States ... 179 Stanley, Ex parte 304 Stanley v. Whipple .... 250 Starr v. Pease 241 State V. Baker 262 V. Bennett 273 V. Berg 272 V. Brooks 304 i;. Brunswick 43 V. Burnham . . . 281, 292 V. Buzine 199 V. Cameron 306 V. Chandler 216 V. Clark 159 V. Commissioners . . . 159 V. Cooler 297 V. Corner 263 ». Corson .... 297, 305 V. County Com'rs . . . 272 V. Demorest 338 V. Denny 42 V. District Board .... 215 V. Doherty 338 V. Dousman 159 V. Emery 309 V. Frazier 254 V. Gates 265 V. Gibbs 272 V. Gibson 240 V. Governor . . . 164, 272 V. Gustin 60 V. Guttenberg 339 V. Haben .... 316, 359 V. Hairston 240 V. Harrison 272 V. Hill 272 V. Hilmantel 267 V. Hufiord 199 V. Indiana & 0. Gas Co. . 72 V. Jackson 240 V. Johnson 273 V. Jones 340 V. Keith 297 V. Kelly 94 V. Learned 306 ». Lewis 273 State V. Ludington .... 244 V. Manning 297 V. Marlow 273 V. McCann 242 V. McKenna 305 V. Medbury 197 V. Milwaukee Gas Co. . . 247 V. Newark 55, 336 V. 0' Flaherty 305 V. Olin 271 V. Orvis 264 V. Osawkee 57 V. Paul 2:i6 V. Phillips 308 V. Porter ]62 V. Purdy 271 V. Rich 154 V. Ross 387 V. Shelby 283 V. Simons 61 V. Smith 2()8 V. State Canvassers . . . 272 V. Steamship Constitution . 141 V. Sullivan 269 V. Synionds 262 V. Tait 309 V. Telephone Co 87 V. Thomas 306 V. Trumpf 269 V. Tutty 240 V. Warmouth 164 V. Warren 337 V. Williams .... 227, 262 V. Wollem 267 V. Woodruii P. C. Co. . . 73 V. Wright 333 V. Young 173 State Bank v. Knoop .... 139 State Freight Tax Case ... 72 State Tax on Foreign Held Bonds 314 State Tonnage Tax Case ... 78 State Treasurer v. Railroad Co. 141 Stead V. Course 62, 344 Steamboat Co. v. Barclay . . 322 Steamship Co. v. Jolliffe ... 75 V. Portwardens . . 69, 78 V. Tugman 125, 133 Stearns v. United States . . . 140 Steele v. Calhoun 267 V. County Com'rs . . . 348 Stein 1). Bienville Water Co. . 318 Stephens «. Wyatt 269 Stevens, In re 52 Stevens J). Fuller 136 V. Nichols 124 St. Joseph, &c. R. R. Co. v. Buchanan Co. Court . . . 262 XXIV TABLE OP CASES. Page St. Louis V. Ferry Co. . . . 78 St. Louis, &c. Ey. Co. v. Vick- ers 32 Stoclcdale ». Hansard .... 163 Stol£es«. People 297 Stone V. Cliarlestown .... 101 V. Heath 357 V. Mississippi . . 315, 320, 323 V. South Carolina . . . 133 Storey v. N. Y. El. Ey. Co. . 354 5. Wallace 289 St. Paul Un. Depot Co. v. St. Paul 350 Strader v. Graham 183 Strauder v. West Virginia 131, 236, 237 Strauss v. Merer 287 Strode v. Washer 342 Strosser v. Fort Wayne . . . 338 Stuart V. Laird ..".... 147 Sturges V. Carter 339 II. Crowninshield ... 34, 80 Sumner v. Beeler ] 61 Supervisors v. Galbraith . . . 212 Supervisors of Election, Case of 51 Surgett V. Lapice 147 Susquehanna Canal Co. d. Wright 351 Sutton V. Warren 187 Sutton's Heirs v. Louisville . . 54 Suydam v. Williamson . . . 139 Swain v. Seamans 326 Swan V. Williams 173 Swearingen v. Morris . . . 186 Swindle v. Brooks 33-3 Switzer v. Dyer . . . 267, 272 T. Tabor v. Cook 249 Taggart v. Newport St. Ry. Co. 355 Talbot V. Hudson .... 349, 357 Talcottw. Philbrick .... 264 Talkington v. Lurner .... 265 Tanev v. Marshall 268 Tarble's Case ... 34, 100, l.'!6 Tarbox v. Sughrue .... 267 Tate, Ex parte 90 Taylor v. Carryl 143 V. Morton " 31 V, Palmer 55 V. Place 42 V. Porter 231, 348 V. Taintor 198, 200 Pago Taylor B. Taylor . . . .266,272 Teall V. Felton 128 Telegraph Co. v. Baruett . . 350 D. Texas 74 Tennessee v. Davis . 31, 114, 132 V. Sneed 341 V. Whitworth 318 Terrett B.Taylor . . . 316,359 Territory v. Lee 171 Terry, Ex parte 310 Terrvt). Anderson 325 I). Fellows 287 Texas v. Gaines 131 V. White . 17, 27, 28, 122, 178, 179, 204 Texas & P. Ey. Co. v Rosedale Co 355 V. Sou. Pac. Ry. Co. . . 192 Thompson v. Lee County . . 339 V. Morgan 337 V. Reid 340 V. Waters 190 V. Whitman 192 Thorington v. Smith .... 179 Thornton, Ex parte .... 199 Thorpe ». Railroad Co. 238, 316, 321 Thurlnw v. Massachusetts . . 79 Tide Water Go. v. Coster . . 58 Tiernan v. Einker 70 Tioga E. E. Co. ». Blossburg, &c. E. E. Co 138 Tobey v. Bristol' 142 Tod V. Wick 87 Toledo, &c. E. B. Co. v. Jack- sonville 322 Toll V. Wright 339 Townsend «. Todd 138 Trade Mark Cases 87 Transportation Co. v. Catletts- burg 78 «. Chicago .... 324, 351 V. Parkersburg .... 78 V. Wheeling 78 Trebilcock v. Wilson ... 82, 83 Troutman, Matter of .... 200 Trumbull's Case 268 Trustees v. McGaughey ... 337 Tna V. Carriere 326 Turner, Matter of 227 Turner v. Commonwealth . . 310 1). Man-land 78 Turnpike Co. )•. State . . . 319 Twitohell v. Commonwealth . 18 Tyler v. Beacher 348 »i, Defrees 89 Tyson v. School Directors . 57, 333 TABLE OF CASES. XXY Underwood v. Lill v .... 336 Union Bank v. Hill .... 60 Union Ins. Co. ». Hoge . . . 147 United States «. Ames . . . 120 V Anderson 146 i>. Anthony 259 V. Arredondo 106 V. Avery 107 V. Bainbridge 90 V. Bevans 96, 119 V. Black 110 V. Blaine 110 V. Boyd 220, 30R V. Brig Malek Adhel . . 88 V. Chicago 120 V. Cisna 67 V. Connor 314 V. Coombs 96 V. Cornell 94 V. Cruikshanks 21, 26, 28, 30, 258, 278 V. Curtis 97 V. Dawson 304 V. De Walt 302 V. De Witt . . 66, 74, 141, 320 V. Eliason .... 103, 104 «. Ferreira 51 V. Fisher 96 V. Fox 190 ». Freeman 104 V. Germaine 107 ». Gilmore 147 V. Gratiot 170 V. Greathouse . . 94, 105, 299 V. Hamilton 303 V. Harris 30 V. Hartwell 107 ». Hoar 341 V. Holliday 67, 146 V. Hudson .... 138, 288 V. Jailer of Fayette ... 134 V. James Morrison ... 76 V. Jones .... 141, 303, 345 V. Kessler 88 V. Elein 105 V. Lancaster 106 V. Lawrence 200 ». Le Baron 108 ». Lee 124 V. Lynch 114 V. Marigold 85 V. Marselis 86 V. McDonald 315 V. Moore .... 107, 147 V. Morris 307 V. Moiut 107 Page United States v. Newcomer . . 233 ». Norton 105 V. Palmer 88 V. Perkins 107 V. Pirates 88 V. Pryor 299 V. Kailroad Bridge . . . 120 V. Railroad Co. . 59, 60, 141 V. Ranscher 200 o. Reese . . 258, 276, 278, 320 e. Reindeer .... 143, 344 V. Riley 307 V. Simpson 174 V. Smith 88 V. Thomasson 106 V. Tinklepaugh .... 107 V. Tj'nen 326 V. Villato 79 V. Waddell 97 V. Wagner 121 V. William, The ... . 67 V. Wilson 105 V. Wiltberger ..... 88 V. Windom 110 United States Bank v. Plant- ers' Bank 124 University v. People .... 317 Upshnr ». Rich Co 133 Usher v. Colchester .... 57 V. Severance 289 V. Vallandigham, Ex parte . . 116 Valparaiso «. Chicago, &c. Ry. Co 350 Van Brocklin v. Tennessee . 60, 141 Vanderzee v. McGregor . . . 281 Vandeusen v. Newcomer . . 236 Van Home ». Dorrance . . . 313 Van Ness v. Pacard .... 7 Van Slyke v. Insurance Co. . 43 Van Voorhis v. Brintnall . . 187 Veazie v. Moore ^ . . . . 65, 66 Veazie Bank v. Fenno . 55, 56, 61 Venice v. Murdock .... 139 Verner ». Verner 287 Vidal ». Girard's Executors . 215 Vincenftes University v. Indi- ana .... 173 Violett 0. Violett. 248 Virginia, Ex parte . . 135, 230, 237 Virginia v. Rives . . . 229, 237 v. West Virginia . . 121, 180 Vogel V. Gruaz 307 XXVI TABLE OF CASES. Voight V. Wright 70 Von Hoffmaiu). Quincy . 144,325 Voorhees, Matter of . . 198, 199 W. Wabash Ej'. Co. v. Illinois . 73, 324 Wadleigh v. Veazie .... 142 Wager v. Troy, &c. K. E. Co. . 354 Wahoo V. Dickinson .... 51 Walker v. Harbor Commission- ers 138 V. Sanford 267 V. Sauvinet 18, 234, V. Whitehead 341 Wall, Ex parte 234 Wallach v. Van Eiswick . . 106 Walling V. Michigan ... 68, 70 Walston V. Nevin 237 Walworth B Harris .... 185 Wan Shing v. United States . 31 Ward V. Flood 242 V. Maryland . 60, 195, 197, 257 Ware i). Hrlton 31 Waring ». Clark 119 «. Mayor, &c 70 Warren «."Manis 84 V. Paul 60 ■D Railroad Co 129 Washburn r. Milwaukee, &c. E. E. Co 357 V. Voorhies 268 Washington Avenue ..... 369 Washington Bridge Co. v. State S22 Wason V. Walter 290 Watkins, Ex parte .... 135 Watson V. Mercer 336 Wayman v. Southard .... 42 Waymell V. Eeed 186 Weaver v. Lapsley .... 89 V. Mississippi, &c. Co. . . 355 Webb -e. Den 342 Weber v. Harbor Commission-^ ers 183, 345 Webster v. Munger .... 186 Weckerly v. Geyer .... 162 WeimerV. Bunbury .... 343 Weiss V. Guerineau .... 331 Welch V. Cook .... 314, 318 Wellington, Petitioner . . . 154 Wells, Ex parte 105 Wells V. Weston 360 Welton V. Missouri . . 64, 68, 70 Westchester, &c. E. E. Co. v. Miles 244 Page West. Un. Tel. Co. ». Alabama 74 V. Massachusetts .... 74 ». Williams 350 Westervelt v. Gregg .... 334 Weston V. Charleston .... 60 West Eiver Bridge Co. ». Dix . 318 Wheaton v. Peters ... 87, 138 Wheeler's Appeal 43 Wheeler v. Jackson .... 340 V. Knaggs 84 V. Patterson 162 Wheeling Bridge Case 67, 77, 79, 86 Wheeling, &c. Bridge Co. v. Wheeling Bridge Co. . 236, 319 Wheelock Election Case ... 267 Whitcomb's Case .... 310 White V. Buchanan .... 3-30 V. Burnley 194 V. Cannon 178 v. County Commissioners . 357 V. Crow 331 V. Hart 32, 326 V. Nashville, &c. E. E. Co. 357 Whitehead v. Shattuok ... 140 Whitely v. Mississippi, &c. Co. 357 Whitfield ». LeDespencer . . 128 Whitford «. Eailroad Co. . . 188 Whiting 1). Barnej' .... 307 Whitmore v. Harden .... 173 Whitney v. Eichardson . . 343 Wightman v. Wightman . . 187 Wilcox ». Hunt 187 ?J. Jackson 104 Wilkerson v. Eahrer . . .71, 100 ■0. Eust 244 Wilkes's Case 219 Wilkinson c. Greelv .... 250 Willamette Bridge"Co.«. Hatch 21, 77 183 Willard v. People ' 159 Williams w. Armroyd . . . 184 v. Bruffy 312 V. Cammack 65 V. Citv Ey. Co 365 41. Peyton 62, 344 V. Potter 267 V. Stein 2S4 ti. Suffolk Ins. Co. . . . 146 Williamson v. New Jersey . . 316 Willson V. Blackbird Creek Marsh Co 76 Wilson, Ex parte . . . 136, 302 V. Fitch 2S1 V. McKenna 340 V. Strattou 186 V. Sullivan 287 Wimmer v. Eaton 265 TABLE OF CASES. XXVll E. Wisconsin v. Doty V. Pelican Ins. Co "Wisconsin Centr. K. Price Co. . . . Wise V. Withers Wiswall 1). Sampson Withers v. Buckley Wood V. Brush . . Woodruff V. Parham V. Scruggs . . V. Trapnall . . Woods V. Lawrence Co. Woodward v. Supervisors Wooley V. Lyon Woollen V. Banker Worcester v. Georgia Work V. State . . Co, Page . 173 122, 188 V. . 61 . 145 . 143 . 66 136, 237 . 77 . 337 84, 313 . 212 . 186 . 87 67, 164 . 305 Page Worster v. Lake Co. . . 188, 189 Wright V. Cradlebaugh . . . 343 Wurts V. Hoaglaud .... 237 Y. Yancy v. Yancy 340 Yarborough, Ex parte ... 96 Yerger, Ex parte 116 Yick Wo V. Hopkins 139, 237, 238 Z. Zeiler v. Chapman 263 CONSTITUTION?" UNITED STATES OF AMERICA. We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, pro- vide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. Sect. 1. All legislative powers herein granted shal'i be vested in a Congress of the United States, which shall consist of a Sen- ate and a House of Representatives. Sect. 2. The House of Representatives shall be composed of members chosen every second year by the people of the sev- eral States, and the electors in each State shall have the qualifi- cations requisite for electors of the most numerous branch of the State Legislature. No person shall be a Representative who shall not have at- tained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be deter- mined by adding to the whole number of free persons, includ- ing those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every XXX CONSTITDffTON OF subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for evpry thirty thousand, but each State shall have at least one representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Piovidence Plantations one, Connecticut five. New York six, New Jersey four, Pennsyl- vania eight, Delaware one, Maryland six, Virginia ten, North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall choose their Speaker and other officers ; and shall have the sole power of impeachment. Sect. 3. The Senate of the United States shall be com- posed of two Senators from each State, chosen by the Legis- lature thereof, for six years ; and each Senator shall have one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year ; and if vacancies happen by resig- nation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the nex't meeting of the Legislature, which shall then fill such vacancies. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. The Senate shall choose their other officers, and also a Presi- dent pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. The Senate shall have the sole power to ti'y all impeachments. When sitting for that purpose, they shall be on oath or affirma- tion. When the President of the United States is tried, the THE UNITED STATES. XXxi Chief Justice shall preside : and no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States : but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, accord- ing to law. Sect. 4. The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof ; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. The Congi-ess shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. Sect. 5. Each House shall be the judge of the elections, re- turns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business ; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each House may provide. Each House may determine the rules of its proceedings, pun- ish its members for disorderly behavior, and, with the concur- rence of two thirds, expel a member. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy ; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. Sect. 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same ; and for any speech or debate in either House they shall not be questioned in any other place. xxxii CONSTITUTION OF No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the author- ity of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time ; and no person holding any office under the United States shall be a member of either House during his continuance in office. Sect. 7. All bills for raising revenue shall originate in the House of Representatives ; but the Senate may propose or con- cur with amendments as on other bills. Every bill which shall have passed the House of Representa- tives and the Senate shall, before it become a law, be presented to the President of the United States ; if he approve he shall sigu it, but if not he shall return it with his objections to that House in which it shall have originated, who shall enter the ob- jections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objec- tions, to the other House, by which it shall likewise be recon- sidered, and, if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be re- turned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall ■ not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (ex- cept on a question of adjournment) shall be presented to the President of the United States ; and, before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two thirds of the Senate and House of Rep- resentatives, according to the rules and limitations prescribed in the case of a bill. Skot. 8. The Congress shall have power, — To lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general wel- fare of the United States ; but all duties, imposts, and excises shall be uniform throughout the United States ; THE UNITED STATES. XXXlll To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States ; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures ; To provide for the punishment of counterfeiting the securi- ties and current coin of the United States ; To establish post-offices and post-roads; To promote the progress of science and useful arts, by secur- ing for limited times to autliors and inventors the exclusive right to their respective writings and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offences against the law of nations; Te declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy ; To make rules for the government and regulation of the land and naval forces ; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; To provide for organizing, arming, and disciplining the mili- tia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respec- tively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress ; To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, -by ces- sion of particular States, and the acceptance of Congress, be- come the seat of the government of the United States ; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings ; — and To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other pow- XXxiV CONSTITUTION OF ers vested by this Constitution in the government of the United States, or in any department or officer thereof. Sect. 9. The migratioii or importation of such persons as any of the States now existing shall think proper to a^it, shall not be prohibited by the Congress prior to the year'^one thou- sand eight hundred and eight, but a tax or duty may be im- posed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be sus- pended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder or ex post facto law shall be passed. No capitation or other direct tax shall be laid, unless in pro- portion to the census or enumeration herein before directed to be taken. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulatioti 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. No money shall be drawn from the treasury, but in conse- quence of appropriations made by law ; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States; and no person holding any office of px-ofit or trust under them shall, without the consent of the Congress, accept of any pres- ent, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. Sect. 10. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, 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 im- ports or exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of the Congress. THE UNITED STATES. XXXV 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 ppwer, or engage in war, unless actually invaded, or in such imDBinent danger as will not admit of delay. ARTICLE II. Skct. 1. The executive power shall be vested in a Presi- dent of the United States of America. He shall hold his office during the term of four years, and, together with the Vice- President, chosen for the same term, be elected as follows : — Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representa- tive, or person holding an office of trust or profit under the United States, shall be appointed an Elector. [The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and certify, and trans- mit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Rep- resentatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such- number be a majority of the whole number of Electors appointed ; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President ; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choos- ing the President, the votes shall be taken by States, the repre- sentation from ea^ch State having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or XXXVl CONSTITUTION OF more who have equal votes, the Senate shall choose from them by ballot the Vice-President. — Repealed by Amendment XII.] The Congress way determine the time of choosing the Elec- tors, arid the day on which they shall give their votes ; which day shall be the same throughout the United States. No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the ofSce of President; neither shall any per- son be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice- President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them. Before he enter on the execution of his office, he shall take the following oath or affirmation : — " I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, perserve, protect, and defend the Constitution of the United States." Sect. 2. The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States ; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and, by and with the ad- vice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and THE UNITED STATES. XXXvii aU other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law ; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, bv granting com- mia.ions which shall expire at the end of their next session. Sect. 3. He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he .shall judge necessary and expedient ; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers ; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. Sect. 4. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeach- ment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. AP.TICLE m. Sect. 1. The judicial power of the United States shall be Vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated tim^, receive for their services a compensation, which shall not be diminished during their continuance in office. Sect. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States, be- tween a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects. XXXVlll CONSTITUTION OF In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Sbct. 3. Treason against the United States shall consist only in levying war against them, or in adhering , to their ene- mies, giving them aid and comfort. No person shall be con- victed of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment pf treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person at- tainted. ARTICLE IV. Sect. 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Sect. 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. ■> A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Sect. 3. New States nlay be admitted by the Congress into this Union ; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without THE UNITED STATES. XXxix the consent of the Legislatures of the States concerned, as well as of the Congress. , The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this tJonstitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Sect. 4. The United States shall guarantee to every State in this Union a republican form of government, and shall pro- tect each of them against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence. ARTICLE V. The Congress, whenever two thirds of both houses shall deem it necessai-y, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be pro- posed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner afEect the first and fourth clauses -in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VL All debts contracted and engagements entered into, before the adoption of this Constitution shall be as valid against the United States under this Constitution as under the Confederation. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwvthstanding. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and Xl CONSTITUTION, ETC. judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution ; but no religious test shall ever be required as a qualification to any office or public trust under the United States. ARTICLE VII. The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same. Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord .one thousand seven hundred and eighty-seven, and of the Independence of the United States of America the twelfth. In W&itmss whereof we have hereunto subscribed our names. [Signed by] GO : Washington, Presidt. and Deputy from Virginia, and by thirty-nine delegates. ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA. ARTICLE I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to' petition the government for a re- dress of grievances. ARTICLE IL A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. ARTICLE III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. ARTICLE IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particu- larly describing the place to be searched, and the persons or things to be seized. Xlii CONSTITUTION OP ARTICLE V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in- cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a witness against himself, nor be de- prived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. ARTICLE VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be con- fronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. ARTICLE Vn. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre- served, and no fact tried by a jury shall be otherwise re-exam- ined in any court of the United States, than according to the rules of the common law. ARTICLE VIII. Excessive bail shall not be required, nor excessive fines im- posed, nor cruel and unusual punishments inflicted. ARTICLE IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ARTICLE X. The powers not delegated to the United States by the Consti- tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. THE UNITED STATES. xliii ARTICLE XI. The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state. ARTICLE XII. The Electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as Presi- dent, and in distinct ballots the person voted for as Vice-Presi- dent ; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted ; — the person having the gi-eatest number of votes for President shall be the President, if such number be a majority of the whole number of Electors ap- pointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next follow- ing, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the Presi- dent. The person having the greatest number of votes as Vice- President shall be the Vice-President, if such number be a. majority of the whole number of Electors appointed, and if no per- son have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President ; a quorum for the purpose shall consist of two thirds of the whole number xliv CONSTITUTION OF of Senators, and a majority of the whole number shall be neces- sary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. ARTICLE XIII. Sect. 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jui-isdiction. Sect. 2. Congress shall have power to enforce this article by appropriate legislation. ARTICLE XIV., Sect. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the St^te wherein they reside. No State shall i make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws.'-- Sect. 2. Representatives shall be apportioned among the- several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years, of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced ill the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Sect. 3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member THE UNITED STATES. xlv of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such dis- ability. Sect. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States, nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave ; but all such debts, obligations, and claims shall be held illegal and void. Sect. 5. The Congress shall have power to enforce, by ap- propriate legislation, the provisions of this article. AKTICLE XV. Sect. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. Sect. 2. The Congress shall have power to enforce this article by appropriate legislation. CONSTITUTIONAL LAW. CONSTITUTIONAL LAW. CHAPTER I. THE RISE OF THE AMEKICAN UNION. Independence. — The declaration which severed the polit- ical connection between the thirteen American Colonies and the British Crown bears date Jul}- 4, 1776, and was .made by the representatives of the Colonies in General Congress assembled, severall3' empowered by tjie respective Colonies to make it. By this manifesto the representatives declare to the world that " appealing to the Supreme Judge of the world for the rectitude of our intentions, [we] do, in the name and b3' authority of the good people of these Colo- nies, solemnljf publish and declare, that these United Col- onies are, and of right ought to be, free and independent States ; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totallj' dissolved ; and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do." For more than a year previous to this the Colonies had been in the exercise of sovereign powers in hostility to the government of Great Britain, but without a repudia- tion of their allegiance ; and they now severallj- assumed the position of independent States, limited only by the 4 CONSTITUTIONAL LAW. concessions of authority, mostly tacit, which they made to their general Congress. Colonial Legislation. — The people of the Colonies had previously exercised a somewhat indefinite power to make their own laws, which was very general in some Colonies and greatly restricted in others. In all of them the pro- prietary or royal governor might defeat legislation by re- fusing his assent ; and in some a council not chosen by the people formed a second legislative chamber, whose concurrence was necessary. Colonial legislation was also sometimes nullified in England, by the authority of an executive board or council, or bj' Parliament. Parliament itself also exercised the power to make laws for the Colonies, and in some cases the power was conceded, though its exercise in particular instances was com- plained of as an abuse, while in other cases the power itself .was denied. It was conceded that, in all matters of what may be denominated imperial concern, the com- mon legislature of the realm must legislate for all the dominions of the Crown, and that under this head fell the commerce of the Colonies with the mother country and with other nations and colonies. The most severe instances of the exercise of this authority were the Navigation Laws and the laws respecting manufactures in the Colonies, the general purpose of which was to sub- ject the commerce and manufactures of the Colonies to such regulations and restraints as should be beneficial to the commerce and general business interests of the mother country. It was never disputed that the Colonies, like all other portions of the British dominions, must necessa- rih' come under the control of the Crown and the Parlia- ment in respect to all their foreign relations ; and, though Indian affairs were for the most part left to the control and management of colonial authorities, yet these also were brought under imperial control to any extent that to the home government at any time seemed politic or desirable. ETSE OP THE AMEBIC AN UNION. 5 The distinct claim of a right in the Colonies to make their own laws was not made until Parliamentary legisla- tion appeared to threaten oppression. The first actual re- sistance which assumed general importance was when an attempt was made to impose internal taxation by authority of the imperial Parliament. The proposed taxes were not in themselves a serious burden, and might possibly have passed unchallenged, if it had been certain that the tax law was not to be the herald and the pioneer of others of a dif- ferent sort, and which would touch the colonists in particu- lars in which tliey were even more sensitive tlian in respect to their pecuaiary interests. The power which could tax New England could impose an episcopal hierarchy upon it, and the disposition to do this, not only in New P^ngland but in New York, had often manifested itself to an extent that excited the most serious alarm. What vital powers of sovereignty in respect to American concerns might be as- serted and exercised, no one could foresee ; and the tax laws were therefore resisted rather as the representatives of unknown dangers than for the burdens they imposed. The government for a time abstained from pushing its claims to an extreme, but, lest its doing so might be . understood as an assent to the claims of the Colonies, Parliament, when repealing the Stamp Act, which had been rendered abortive by the resistance of the people, took occasion to assert an unqualified right to legislate for the Colonies on all subjects whatever.^ This claim after- wards assumed practical form in an attempt to collect a tax on tea imported for consumption in the Colonies. The levy of the tax was resisted as an invasion of the undoubted rights of Englishmen, who, in taking up their home in the Colonies, had not lost their right to the protection of the ancient laws of the realm. In Massa- chusetts and New York cargoes of the taxed tea were destroyed by armed mobs ; in Maryland the importer waa 1 Pitkin, Hist of U. S., ch, 6 ; Frothingham, Kise of the Republic, oh. 5, 6. 6 CONSTITUTIONAL LAW. compelled to set fire to the vessel by means of which he had offended, and in other colonies the taxed commodity was either refused a landing, or not suffered to be sold after the landing had been effected ; and the tax law was by these means completely nullified.^ Liberty a Birthright. — The resistance in the cases mentioned, and in some others, was grounded on the claim that the colonists, as Englishmen, according to the Consti- tution of the realm, were entitled to certain rights which the government was attempting to override by the exercise of tyrannical power.^ The evidence of these rights was to be found in part in certain historical documents which in both England and America had been looked upon and re- vered as the charters of liberty. The first of these was Magna Charta, extorted from King John in 1215, as a restriction upon what was then an almost unlimited kingly power ; the most important provision of which was, that "No freeman shall be taken or imprisoned or disseized or outlawed or banished or an3'wa3's destr03ed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land." In the same instrument is foreshadowed parliamentary taxa- tion in the clause which requires the common consent of the realm to the levj' of unusual burdens.* Grounded upon this charter the fabric of constitutional liberty was slowly and patientl^^ erected ; parliamentaij iUiStitutions acquired form and strength under the House of Lancas- ter ; and though the promise of a regular administration of the law was as often violated as kept, the right of the sub- ject to its benefits was never surrendered, and at length, at the beginning of the reign of Charles I., it received further assurance and confirmation in the royal assent to 1 Frothiugham, Rise of the Republic, oh. 5 ; Pitkin, Hist, of U. S., ch. 7. 2 Pitkin, Hist, of U. S., ch. .3. « Blaekstone's Charters ; 4 Bl. Com. 424 ; Story ori Const., § 1779; Stubbs, Const. Hist., ch. 12; Oooley, Const. Lim., ch. 11, EISE OF THE AMERICAN UNION. 7 The Petition ofRight.^ — By this petition it was prayed, among other things, " that no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of Parliament ; that none be called upon to make answer for refusal so to do ; that freemen be imprisoned or disseized only by the law of the land, or by due process of law, and not bj^he king's special command without any charge." In the next reign was enacted The Habeas Corpus Act,^ the purpose of which was to give speedy relief from all unlawful imprisonments, and to enforce upon judicial and other officers the duty of deliverance. The fourth of the great charters of English constitutional liberty was The Bill of Bights,^ which embodied in statutory form the principles enumerated in the Declaration of Rights presented by the Convention Parliament to the sovereigns called by that body to the throne on the Revolution of 1688. The purpose of this act was to enumerate and reaflflrm such rights of the people as the House of Stuart in any of its reigning representatives had set aside, en- croached upon, or ignored. The Common Law. — The charters above mentioned declared general principles, but the common law was the expositor of these, and the extent of the protection they should give could only be determined by its rules. That law was the growth of many centuries ; its maxims were those of a sturdy and independent race of men, who were • accustomed in an unusual degree to freedom of thought and action, and to a share in the administration of public affairs.* So far as they declared individual rights, thej' were a part of the constitution of the realm, and of that " law of the land " the benefit of which was promised by 1 3 Ch. I., ch. 1 (1628). ^ 31 ch. II., ch. 2 (1679). 3 1 Wm. & Mary, Ses. 2, ch. 2 (1689). * Cooley, Const. Lim., 6th ed., p. 33. Van Ness v. Pacard, 2 Pet 137, 144. 8 CONSTITUTIONAL LAW. the charter of King John to every freeman. They were modified and improved from age to age, by changes in the habits of thought and action among the people, by modifications in the civil and political state, by the vicissitudes of public affairs, by judicial decisions, and by statutes. The colonists claimed that this code of law accompanied them, as a standard of right and of protection in their emi- gration, and that it remained their law, excepting as in some particulars it was found unsuited to their circum- stances in the New World. Relying upon it, they had well known and well defined rules of protection ; without it, they were at the mercy of those who ruled, and, whether actually oppressed or not, were without freedom.^ Violations of Constitutional Right. — The complaints of violation of constitutional right were principally directed to four points : — 1. Imposing taxes without the consent of the people's representatives. 2. Keeping up standing armies in time of peace to overawe the people. 3. Deny- ing a right to trial by a jorj- of the vicinage in some cases, and providing for a transportation of persons accused of crimes in America for trial in Great Britain. 4. Expos- ing the premises of the people to searches, and their per- sons, papers, and property to seizures on general warrants. If Americans were entitled to the constitutional rights of Englishmen, it was unquestionable that in these particu- lars their rights were invaded ; but the imperial govern- ment denied that the colonists could claim rights as against the exercise of its powers. Independence. — The sovereignty passed forever from the British Crown and Parliament when the war of the Revo- lution was actually begun, waged on the one side bj- the government of Great Britain to reduce the colonists to submission, and directed on the other side by a Continental 1 " Not the man alone who feels, but who is exposed to tyranny, is without freedom." — Sir William Meredith, quoted in Life of Ire- dell, i. 212. EISE OP THE AMBEICAN UNION. 9 Congress which assumed the sovereign power of conduct- ing belligerent affairs. This great fact was not perceived, and indeed not assured, for more than a j'ear, and it was then proclaimed to the world in the solemn document known as the Declaration of Independence, and which has alreadj- been mentioned. In pronouncing the dissolution of the political bonds with the mother country, the signers of this instrument declare that ' ' we hold these truths to be self-evident,- that all men are created equal ; that they are endowed hy their Creator with certain unalienable rights ; that among these are life, liberty, and the pursuit of happiness ; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the gov- erned ; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new govern- ment, laying its foundation on such principles, and organ- izing its powers in such form, as to them shall seem most likely to effect their safety and happiness." And proceeding to an enumeration of the grievances which justify their actic n, they close by declaring the dissolution of the ties that bind the Colonies to the British Crown, and asserting their independence in the terms alreadj' given.'' Revolutionary Government. — The government of the Union under the Continental Congress was strictly revolu- tionary in character, and was constituted by an acquies- cence of the people and. the several States in the exercise by the Congress of certain undefined powers of general concern, the chief of which were the power to declare war, to conclude peace, to form alliances, and to contract debts 1 Curtis, History of the Constitution, cliap. 3. This author well says : " The body by which this step was taken constituted the actual government of the nation at the time, and its members had been directly invested with competent legislative power to talie it, and had also been specially instructed so to do." (p. 51.) 10 CONSTITUTIONAL LA"W. on the credit of the Union.^ The governments of the sev- eral States were also at first revolutionary, but their pre- vious organization was such that the war disturbed them but little, and modified forms more than substance. All of them had local governments and the common law, which remained undisturbed ; all of them had legislative bodies, which continued to perform their functions, but without the recognition of the pre-existing executive authority. The States, however, soon proceeded to adopt formal con- stitutions, apportioning, defining, and limiting the powers of the several departments of government, and with two exceptions they Lad completed this work before indepen- dence was acknowledged by Great Britain.^ The liberal charter granted to Rhode Island by Charles II. in 1663 was found sufficient for the purposes of a free common- wealth, and was tacitlj' adopted as the constitution of the State, and remained such for two thirds of a century.* The charter of Connecticut was not superseded by a con- stitution until 1818. But a merely revolutionary government could not long answer the purposes of the TJnion. The powers of the Con- tinental Congress having never been formally conferred, or indeed agreed upon, by the States, that body was regarded by the people and by the State authorities as an advisory body rather than as a government, and the pres- sure of external necessitj' determined the degree of obe- dience its commands or advice should receive. In most important matters they were often disregarded, and the Confederation seemed at the point of falling to pieces for the want of a legal bond of union and of legal power to 1 Curtis, Hist, of Const., ch. 1, 2. 2 See Mr. Bancroft's admirable chapter on " The Rise of Free Commonwealths," Hist, of U. S., vol. x. ch. 10; Centennial ed., vol. vi. ch. 46. 2 Of the original States, Delaware, Maryland, New Hampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, and Vir- ginia adopted conatitutions in 1776, Georgia and New York in 1777, Massachusetts in 1780, and Rhode Island in 1842. RISE OF THE AMERICAN UNION. 11 compel the performance of duties owing to it hy its several members. Articles of Confederation. — This evil it was sought to remedy by " Articles of Confederation and Perpetual Union," prepared by the Congress and submitted to the States in 1777, and ratified subsequently by representa- tives of the States empowered by their respective legis- latures so to do.^ These Articles declared that ' ' Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not bj- this Confederation expressl}' delegated to the United States in Congress as- sembled ; " that " The said States hereby severallj' enter into a iirm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sov- ereignty, trade, or any other pretence whatever ; " and that, " for the more convenient management of the general interests of the United States," delegates from the several States shall meet in a Congress, in which each one shall have an equal vote. They further declared that " No State, without the con- sent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state ; " that " No two or more States shall enter into any treaty, confederation, or alliance whatever between them without the consent of the United 1 Curtis, Hist, of the Const., cli. 5. All the States except two ratified the Articles in 1778 ; Delaware delayed till the next year, and Maryland till 1781. The delay in the case of Maryland was for the purpose of obtaining a permanent and sati.sfactory settlement of the claims to Western lands, and is fully explained in the monograph of Dr. H. B. Adams of Johns Hopkins University, read before the Maryland Historical Society (1878). 12 CONSTITUTIONAL LAW. States in Congress assembled ; " that " No State shall lay any imposts or duties which may interfere with any stipu- lations in treaties entered into by the United States in Congress assembled, with any king, prince, or state ; " that " No State shall engage in any war without the con- sent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a dela}- till the United States in Congress assembled can be consulted ; " and that except in such cases ' ' the United States in Con- gress assembled shall have the exclusive right and power of determining on peace and war ; " also of sending and receiving ambassadors, entering into treaties and alli- ances, establishing rules and courts for the determination of cases of capture and prize, granting letters of marque apd reprisal in time of peace, and appointing courts for the trial of piracies and felonies committed on the high seas. Also that the United States in Congress assembled shall be the last resort on appeal in all disputes and differ- ences between two or more States concerning boundary', jurisdiction, or any other cause whatever. The United States in Congress assembled were also empowered to borrow money, or emit bills on the credit of the United States, to build and equip a navjs to agree upon the number of land forces, and to make requisitions upon each State for its quota, in proportion to the number of white inhabitants of such State, but with the right to vary from this quota when the circumstances rendered it proper. The delegates in Congress were to be maintained by their States respectively; but it was declared that " All charges of war, and all other expenses that shall be in- curred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be KISE OF THE AMERICAN p'NION. 13 supplied b}' the several States in propSypto the value of all land within each State, granted tapp surveyed for any person, as such land and the buildingSigjid improve- ments thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint." The United States in Congress assembled were given the right and power of regulating the alloy and value of coin struck by th9# own authority or by that of the respective States, of oXg the standard of weights and measures, and of establi^mig and regulating post-offlces and postage. It was further declared, that " The Unit^TStates in. Congress assembled shall never engage in a war, letters of marque and reprisal in time of peaces into any treaties or alliances, nor coin mone late the value thereof, nor ascertain the sums | necessary for the defence and welfare of the Unite or any of them, nor emit bills, nor borrow monej credit of the United States, nor appropriate monl agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same ; nor shall a ques- tion on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in Congress assembled." The Congress was empowered to appoint an executive committee, consisting of one from each State, to sit during the recess of Congress, who would be authorized " to exe- cute such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with." It was declared that the United States and the publip faith were solemnly pledged for the public debts previously con- tracted by authority of Congress ; that the States should abide by all the determinations of the Congress on all questions by the Confederation submitted to that body ; 14 CONSTITUTIONAL LAW. and that " The Articles of this Confederation shall be in- violably observed by every State, and the Upion shall be perpetual ; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed bj- the legislatures of every State." Failure of the Confederation. — The defects in the Confederation were such as rendered speedy failure inevi- table. It accomplished a temporar}- purpose in a ver^' im- perfect manner, but it was impossible that it should do more. The Confederation was given authority to make laws on some subjects, but it had no power to compel obedience ; it might enter into treaties and alliances which the States and the people could disregard with impunity ; it might apportion pecuniary and military obligations among the States in strict accordance with the provisions of the Articles ; but the recognition of the obligations must depend upon the voluntary action of thirteen States, all more or less jealous of each other, and all likelj' to recognize the pressure of home debts and home burdens sooner than the obligations of the broader patriotism in- volved in fidelity to the Union ; it might contract debts, but it could not provide the means for satisfying them ; in short, it had^fio power to levy taxes, or to regulate trade and commerce, or to compel uniformity in the regulations of the States ; the judgments rendered in pursuance of its limited judicial authoritj- were not respected by the States ; it had no courts to take notice of infractions of its author- itj', and it had no executive. A further specification of defects is needless, for any one of those mentioned would have been fatal. " Obedience is what makes government, and not the names bj- which it is called ; " ' and the Con- federation had neither obedience at home nor credit or respect abroad. The people was one in promising and thirteen when performance was due, and it became at last 1 Burke, Speech on Conciliation with America. EISB OF THE AMEEICAN UNION. 15 diflScult to enlist sufHcient interest in its proceedings to keep up the forms of government through the meetings of Congress and of the executive committee.^ The Constitutional Convention. — In February, 1787, a resolution was adopted by the Congress recommending a convention in Philadelphia, in the May following, of dele- gates from the various States, " for the purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, under the Federal Constitution be adequate to the exigencies of government and the preservation of the Union." This was in strict conformity with the pro- vision for amendment contained in the Articles, and was acted upon by all the States except Rhode Island, which alone sent no delegates. The Convention when it met, , after full consideration, determined that alterations in and amendments to the Articles would be inadequate to the purposes of government, and proceeded to recommend a new Constitution, and to provide that " The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifjung the same." As this was in disregard of the pro- vision in the Articles of Confederation, which required the assent of every State, it was a revolutionarj' proceeding,^ and could be justified only by the circumstances which had brought the Union to the brink of dissolution. Its revolutionary character appears more distinctly from the action under it, since eleven States only had ratified the Constitution when the government was organized in 1 The reasons for the failure hare been dwelt upon at length by many writers, particularly Story on Const., ch. 4 ; Pitkin, Hist, of U. S., ch. 17 ; Curtis, Hist, of the Const., book 2 ; Von Hoist, Const. Hist., ch. 1 ; and Madison, Hamilton, and Jay, in the Federalist, and Justice Wilson in his lectures. 2 Van Buren, Political Parties, p. 50; Federalist, No. 43, by Madison. 16 CONSTITUTIONAL LAW. pursuance of its provisions," and the remaining two, North Carolina and Rhode Island, were for a time excluded from the Union. Both gave their assent, however, and became members of the Union, the first in November, 1789, and the other in May, 1790. Sovereignty of the States. — The term sovereignty in its full sense imports the supreme, absolute, and uncon- trollable power by which any independent state is gov- erned.'' From what has already been said it appears that, although the States were called sovereign and independent in the Declaration of Independence, they were never in their individual character strictly so, because they were always, in respect to some of the higher powers of sover- eigntj', subject to the control of some common authority, and were never separately recognized or known as mem- bers of the family of nations. This common authority was, first, the Crown and Parliament of Great Britain ; second, the Revolutionary Congress ; third, the Congress of the Confederation ; and at length the government formed under the Constitution. The powers of these dif- fered greatlj-, but in one most important particular there was uniformity : each had control of affairs of war for all the Colonies or States, and of all intercourse with foreign nations. Only North Carolina and Rhode Island are to be considered exceptions to this general statement : these for the little time while they were excluded from the Union by their neglect to ratify the Constitution were relieved from all common authority, and became wholly inde- pendent. It is to be said of them, however, that they remained in that condition for a pei-iod so brief that as 1 March 4, 1789, was the time fixed for the organization of the government, but it was not in fact inaugurated until the 30th of tlie following month. 2 Burlamaqui, Politic. Law, ch. 5 ; 1 BI. Com., 49 ; Story on Const., § 207; Wlieat. Int. Law, pt. 1, ch. 2, § 5; Austin, Prov. of Juris., ch. 6 ; Chipman on Got., 137. RISE OF THE AMERICAN UNION. 17 sovereignties they neither obtained nor sought for recog- nition by foreign nations.^ Bill of Rights. — The several charters of English liberty to which reference has already been made had been much relied upon by the American people in the controversies resulting in independence, and their clear assertion of individual rights was of inestimable value in inspiring the people to resist tyrannical action of the government. Each of these charters had been more specific and enlarged in its provisions than that which preceded, and it might have been expected that the Convention of 1787 would have followed the examples, and that in their completed work would have been found a clear and full enumeration of those rights which were deemed indefeasible, and which might lawfully' be asserted against the government itself. The importance of this, however, did not impress itself on the minds of the members of that body.^ The Constitu- tion did indeed insure the benefits of the habeas corpus ; it precluded constructive treasons ; it prohibited bills of attainder and ex post facto laws ; and it provided for the trial of criminal accusations bj' jur}" ; but there was no attempt at a systematic enumeration of fundamental rights, and the absence of this was made a ground of persistent opposition to the ratification of the Constitution. Some of the leading States, indeed, were only induced to ratify m reliance upon a bill of rights being added to the Constitu- tion by amendments,^ and this was done in eight articles, which were proposed and adopted as speedily as the neces- 1 Life and Writings of A. J. Dallas, 200-207 ; Von Hoist, Const. Hist., ch. 1 ; Chisholm v. Georgia, 2 Dall. 419, 470, per Jay, Ch. J. ; Texas v. White, 7 Wall. 700, 724. 2 For reasons that might be urged against it, see Federalist, No. 84 ; compare Jefferson's Works, vol. iii. pp. 4, 13, 101, vol. ii. pp. 329, 358 ; Life of Madison, by Rives, vol. ii. p. 38 ei seq. ; Hamilton's Hist, of the Republic, vol. iv. p. 23. 3 See the recommendations by Massachusetts, South Carolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island, in Elliott's Debates, 1. 322-334. 2 18 CONSTITUTIONAL LAW. sarj' forms could be gone through with. For a proper understanding of these provisions it is essential to keep in mind that their purpose, as well as that of similar pro- visions in the original instrument, was to put it out of the power of the government now being created to violate the fundamental rights of the people who were to be subjected to its authoritj'. They constitute limitations, therefore, upon the power of the Federal government onlj\ The exceptions to this general statement are only of those few cases in which the States are named, and the exercise of certain powers by them expressly prohibited. For exam- ple, when the Constitution, in Art. I. § 9, declares that " no bill of attainder or ex post facto law shall be passed,'" it is stijl necessary, in order to extend the prohibition to the States, to provide, as is done in the next section, that '■'■no State" shall pass such a bill or law. To slate the rule of construction concisely', it is this : The restrictions imposed upon government by the Constitution and its amendments are to be understood as restrictions only upon the government of the Union, except where the States are expressly mentioned.* 1 Barron v. Baltimore, 7 Pet. 243 ; Smith v. Maryland, 18 How. 71 ; Pervear v. Commonwealth, 5 Wall. 475 ; Twitchell v. Common- wealth, 7 Wall. 321 ; Justices v. Murray, 9 Wall. 274 ; Edwards v. Elliott, 21 Wall. 532; Walker v. Sauvinet, 92 U. S. 90; Presser v. IlUnois, 116 U. S. 252 ; Spies v. Illinois, 123 U. S. 131. DEFINITIONS AND GENEBAL PRINCIPLES. 19 CHAPTER II. DEFINITIONS AND GENERAL PRINCIPLES. Nation and State. — A state may be defined to be a body politic or society of men united together under common laws for the purpose of promoting their mutual safety and advantage by the joint efforts of their com- bined strength.^ The term is often employed as import- ing the same thing with nation ; but the latter is more nearly synonymous with people, and while a single state may embrace several different nations or peoples, a sin- gle nation wiU sometimes be so divided politically as to constitute several states. ' In the. following pages the word State will sometimes be emploj'ed in the general sense above expressed, but more commonly it will refer to the several members of the American Union, while the word Nation will be applied to the whole body of the people coming under the juris- diction of the federal government. A State is either sovereign or dependent. It is sover- eign when there resides within itself a supreme and absolute power, acknowledging no superior, and it is de- pendent when in any degree or particular its autiiority is limited by an acknowledged power elsewhere.^ It is immaterial to this definition whether the supreme power reposes in one individual, or one body or class of individ- > Vattel, b. 1, ch. 1, § 1 ; Wheat. Int. Law, pt. 1, ch. 2, § 2 ; Story on Const., § 207 ; Bnrlamaqui, Pol. Law, ch. 5 ; Cooley, Const. Lira., 1. 2 Vattel, b. 1, ch. 1, § 2 ; Chipman on Government, 137 ; Hallecki Int. Law, 65. 20 CONSTITUTIONAL LAW. uals, or in the whole body of th& people; whethei, in other words, the government is a monarch}', an aristoc- racy, a republic, or a democracy, or anj- combination of these ; for the form only determines the methods in which sovereign powers shall be exercised. All civilized states recognize a body of rules or laws which is called the Law of Nations, and the rules are either rules of public international law, as they relate to and regulate the intercourse of states with each other, or of private international law, as they define and protect the rights, privileges, and obligations of the citizens or sub- jects of one state passing into another, or owning prop- ertj', making contracts, or conducting operations that may be governed b^- the laws of another. In contemplation of the law of nations, all sovereign states are and must be equal in rights, since from the very deiinition of sovereign" state it is impossible that there should be in respect to it any political superior. In theory sovereignty must be a unitj', and the sov- ereignty of a state must e'xtend to all the subjects of government within the territorial limits occupied by the associated people who compose it, so that the dividing line between sovereignties must be a territorial line. In the law of nations for the purposes of international inter- course some encroachment upon the theory is admitted, and the sovereignty of one state is projected within the juris- diction of another, so as to retain within its rule its am- bassadors and ministers resident abroad, and its ships of war in foreign ports. In American constitutional law a peculiar system is established ; the powers of sovereignty being classified, and some of them apportioned to the gov- ernment of the United States for its exercise, while others are left with the States. Under this apportionment the nation is possessed of supreme, absolute, and uncontrol- lable power in respect to certain subjects throughout all the States, while the States have the like unqualified power, within their respective limits, in respect to other DEFINITIONS AND GENERAL PRINCIPLES. 21 subjects.! Over certain other subjects the States have a qualified dependent or defeasible power, inasmuch as their action is liable at any time to be overruled, and their powers to become dormant, bj' the exercise of a superior power which is conferred upon the nation over the same subjects.'' Constitution. — The term constitution maybe defined as the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.^ A constitution is valuable in proportion as it is suited to the circumstances, desires, and aspirations of the people, and as it contains within itself the elements of stability, per- manence, and security against disorder and revolution. Although ever^' state may be said in some sehse to have a constitution, the term constitutional governfnent is only applied to those whose fundamental rules or tnaxims not only define how those shall be chosen or designated to whom the exercise of sovereign powers shall be confided, , but also impose efficient restraints on the exercise for the purpose of protecting individual rights and privileges, and shielding them against any assumption of arbitrary power.^ The number of such governments is not as yet great, but is increasing. A constitution may be written or unwritten. If unwrit- ten, there may still be laws or authoritative documents which declare some of its important principles ; as we have seen has been and is still the case in England. The weakness of an unwritten constitution consists in this, that it is subject to perpetual change at the will of the 1 License Cases, 5 How. 504, 588 ; Ableman i>. Booth, 21 How, 506, 516 ; United States v. Cruikshanfcs, 92 U. S 542 ; Barbier v. Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1. "- Cooley V. Wardens, &c., 12 How. 299 ; Mobile v. Kimball, 102 U. S, 691 ; Willamette Bridge Co. v. Hatch, 125 U. S. 1 ; Morgan's S. S. Co, u. Louisiana, 118 U. S. 455 ; Smith v. Alabama, 124 U.S. 465 8 Duer, Const. Juris., 26 ; Cooley, Const, Lim., 2, * Calhoun, Disquisition on Government, Works, i. 11. 22 CONSTITUTIONAL LAW. law-making power ; and there can be no securitj' against such cliange except in the conservatism of the law-making authority, and its political responsibility to the people, or, if no such responsibility exists, then in the fear of resist- ance by force. In America the leading principle of consti- tutional liberty has from the first been, that the sovereignty reposed in the people ; and as the people could not in their collective capacity exercise the powers of government, a written constitution was by general consent agreed upon in each of the States. These constitutions create depart- ments for the exercise of sovereign powers ; prescribe the extent of the exercise, and the methods, and in some par- ticulars forbid that certain powers which would be within the compass of sovereignty shall be exercised at all. Each of these constitutes for the State the absolute rule of action and decision for all departments and offices of the gov- ernment, in respect to all the points covered bj- it, which must control until it shall be changed by the authoiity which established it. Whatever act or regulation of any department or officer is in excess of the power conferred by this instrument, or is opposed to any of its directions or regulations, is altogether void. The constitution, more- over, is in the nature of a covenant of the sovereign people with each individual thereof, under which, while they in- trust the powers of government to political agencies, they also divest themselves of the sovereign power of making changes in the fundamental law except by the method in the constitution agreed upon. The Constitution of the United States creates similar governmental trusts and im- poses similar restrictions. Tlie weaknesses of a written constitution are, that it establishes iron rules, which, when found inconvenient, are difficult of change ; that it is often construed on technical principles of verbal criticism, rather than' in the light of great principles ; and that it is likely to invade the domain of ordinary legislation, instead of being restricted to fundamental rules, and thereby to in- vite demoralizing evasions. But, the written constitution DEFINITIONS AND GENERAL PRINCIPLES. 23 being a necessity in America, the attendant evils are in- significant as compared with the inestimable benefits. In the following pages, where the Constitution is spoken of, the Constitution of the United States will be intended unless otherwise explained. Unconstitutional Law. — A law is sometimes said to be unconstitutional, by which is meant that it is opposed to the principles or rules of the constitution of the state. An unconstitutional enactment is sometimes void, and sometimes not ; and this will depend upon whether, accord- ing to the theorj' of the government, anj- tribunal or officer is empowered to judge of violations of the constitution, and to keep the legislature within the limits of a delegated authority by annulling whatever acts exceed it. Accord- ing to the theory of British constitutional law the Parlia- ment possesses and wields supreme power,' and if therefore its enactments conflict with the Constitution, they are nevertheless valid, and must operate as modifications or amendments of it. But where, as in America, the legisla- ture acts under a delegated authority, hmited by the Con- stitution itself, and the judiciary is empowered to declare what the law is, an unconstitutional enactment must fall when it is subjected to the ordeal of the courts^ Such an enactment is in strictness no law, because it estabhshes no rule : it is merely a futile attempt to establish a law. The remedy for unconstitutional enactments in England must therefore be political or revolutionary, while in America they may be found in the ordinary process of the courts. Still even in America some cases must be beyond the reach of judicial cognizance, because the questions involved are purely political. Such, for example, were questions involved in the reconstruction of the States recently in rebellion, and the question growing out of the 1 1 Bl. Com., 161 ; Broom, Const. Law, 795 ; De Tooqueville, De- mocracy in America, ch. 6; Dicey, Tlie Law of the Constitutioa pt. 1, ch. 1. 24 CONSTITUTIONAL LAW. attempt to overthrow the charter government of Rhode Island.^ The Might of Bevolution. — The authoritj' of the British Crown over the Colonies was rejected, and a gov- ernment created by the people of the Colonies for them- selves, and this afterwards radically changed and reformed in the adoption of the Federal Constitution under the great and fundamental right of every people to change their institutions at will, — in other words, under the right of revolution. It is true that the colonists in the incipient period of the change planted themselves upon established rights, instead of seeking or desiring a revolution. Their purpose, therefore, was to maintain old established princi- ples of the Constitution, instead of overturning them ; and they occupied a conservative position, resisting innovations which the imperial government was attempting to force. Nevertheless there was no settled principle of the consti- tution that limited in any manner the sovereign right of Parliament to change at will the laws protecting the life, liberty, and property of the subject ; and had the same laws which in this particular oppressed the people of the Colonies been applied to the people of the realm, they would have been within the acknowledged power of the Parliament. So in regard to the Colonies the right of the imperial government to rule in all respects might be defended on precedent, and the leading publicists of the day affirmed it. It was 'nevertheless the fact that the ex- ercise of imperial power in the particulars complained of was tyrannical and in disregard of constitutional princi- ples, and that resistance was directly in the line of English precedents which at the time were almost universally ap- proved in England itself. There was consequently am- ple ground for resistance, and if the other conditions for revolution existed, the colonists were right in attempt- ing it. The right of revolution may be said to exist when the 1 Luther v. Borden, 7 How. 1 ; Mississippi v. Johnson, 4 Wall. 475. DEFINITIONS AND GENERAL PRINCIPLES. 25 government has become so oppressive that its evils de- cidedly overbalance those which are likely to attend a change, when success in the attempt is reasonably certain, and when such institutions are likely to result as will be satisfactory to the people.* In this last particular the prob- abilitj' of success will depend largely on the extent of the revolution attempted, — whether it extends to the laws in general, or only to the head of the government. In America only a change in the general sovereignty was in- tended ; in respect to the general laws, the revolution was strictlj' preservative. It became necessary, nevertheless, to make considerable changes in state laws and institu- tions before the revolution was perfected, and when these were completed in the adoption of the Federal Constitu- tion, the revolution was fully justified in the establish- ment of more satisfactory institutions than had existed before. The Constitution : hy whom adopted. — To a proper understanding and construction of the Constitution it be- comes important to know at the outset who were the parties to it, — by whom it was adopted, and what it was meant to accomplish. In these particulars the present work cannot enter into the field of speculation or discus- sion, nor would it be important to do so. The general principles governing the case have been judicial]}' deter- mined, and the political departments of the government have accepted the conclusions. It therefore becomes suffi- cient for our purposes to saj' here, that the Constitution was agreed upon by delegates representing the States in convention ; that it was submitted to the people of the several States by their respective legislatures ; that it was adopted by the people through delegates elected for the express purpose of considering and deciding upon it, and that the people of the States, as well as the States them- selves, thereby became parties to it. It was therefore properly declared in the preamble, that "We, the people 1 Woolsey, Pol. Science, i. 402. 26 CONSTITUTIONAL LAW. of the United States, do ordain and establish this Consti. tution for the United States of America." ^ By the adop- tion of the Constitution the people of the States before united in a confederation became a nation under one gov- ernment,^ and the citizens of every State became also citizens of the United States.^ The purpose of the Con- stitution is forcibly and clearly declared in the preamble. It was "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the com- mon defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." These purposes collectively, it has been well said, " comprise everything requisite, with the blessing of Divine Provi- dence, to render a people prosperous and happy." * By the new amendments to the Constitution the freedmen become a part of the people, and all the purposes for which it was made and established are to be deemed to have them in view, and to contemplate their protection and benefit as a part of the body politic. JVbt a mere Compact. — The confederation of the States had existed by force of a mere compact, and for want of power in the common authoritj' had so completely failed in the purposes of its formation as to justifj'^ its being superseded by revolutionary, though peaceful, means. Among its chief defects was the fact that it operated on States only, and that the highest sanction it could give to its lawful determinations was that of advice, or entreaty ; it could not command, and it could not enforce. The Con- stitution which was adopted to supersede it, on the other hand, is an instrument of government, agreed upon and established, and rendered eflScient as such by being made 1 Martin v. Hunter, 1 Wheat. 304, 324 ; Cohens v. Virginia, 6 Wheat. 264, 413. 2 Lane County «. Oregon, 7 Wall. 71, 76. 8 Minor v. Happersett, 21 Wall. 162 ; United States v. Cruikshanks, 92 U. S. 542. < Chisholm v. Georgia, 2 Dall. 419. DEFINITIONS AND GENERAL PKINCIPLES. 27 operative upon the people individually and collectively-, and, within the sphere of its powers, upon the States also.^ This was the judicial view of the Constitution from the first, ^ and it has been practically and finally settled against opposing theories, by the action of the several departments of the government, extending over the whole period of the existence of the Union under the Constitution ; by the acquiescence of the people in this view, and their forcible resistance to the attempt made to supersede it ; and, final!}-, bj- the adoption of the thirteenth, four-te'enth, and fifteenth articles of the amendments to further strengthen and consolidate the Union under the government of the Constitution.^ The Union Indissoluble. — Bj- the Articles of Confed- eration " the Union was declared to be 'perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ' to form a more perfect Union.' It is difficult to convey the idea of indissoluble unitj- more clearly than bj' these words. What can be indissoluble, if a perpetual union made more perfect is not ? " * When a State is once in the Union, there is "no place for reconsideration or revo- 1 Webster, " The Constitution not a Compnct," Speeches, iii. 349 ; Jackson's Proclamation on Nullification in 1833, Elliott's Debates, iv. CIO, Statesman's Manual, i. 890. ■•2 Maitin ». Hunter, 1 Wheat. 304, 324 ; M'CuUoch v. Maryland, 4 Wheat. 316, 402 ; Gibbons v. Ogden, 9 Wheat. 1, 187 ; Rhode Island V. Miissachusetts, 12 Pet. 657, 720; Texas v. White, 7 Wall. 700, 726. 3 Views either radically or in part opposed to those which have prevailed are presented in Calhoun's Discourse on the Constitution and Government of the United States, Works, i. 11 ; and Address on the Relations of the State to the General Government, Works, vi. 59 ; Upshur on tlie Federal Constitution ; Construction Construed and Constitution Vindicatecl, by John Taylor ; New Views of the Consti- tution of the United States, by the same ; The Constitutional View of the War between the States, by A. H. Stephens ; The Kentucky and Virginia Resolutions of 1798-9, Elliott's Debates, iv. 566, 57^ and other publications too numerous for mention here. 4 Texas v. White, 7 Wall. 700, 725. 28 CONSTITUTIONAL LAW. cation, except through revolution, or through the consent of the States." '■ The States Indestructible. — " But the perpetuity and indissolubilit}' of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Without the States in union there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may not unrea- sonably be said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national gov- ernment. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States." ' The Constitution a Grant of Powers. — The govern- ment created bj' the Constitution is one of limited and enumerated powers,, and the Constitution is the measure and the test of the powers conferred. Whatever is not conferred is withheld, and belongs to the several States or to the people thereof.* As a constitutional principle this must result from a consideration of the circumstances under which the Constitution was formed. The States were in existence before, and possessed and exercised nearly all the powers of sovereignt3^ The Union was in existence, but the Congress which represented it pos- sessed a few powers only, conceded to it by the States, and these circumscribed and hampered in a manner to 1 Texas v. White, 7 Wall. 700, 726. 2 Lane County v. Oregon, 7 Wall. 71, 76. 8 Texas v. White, 7 Wall. 700, 725. * Calder v. Bull, 3 Dall. 386; Gibbons v. Os. Hadley, 2 Dill. 229 ; Johnson v. ^Jumel, 3 Woods, 69. Neither this nor the next provision, seems ai yet to have had authoritative examination. a Rev. Stat. .U. S. § 563. * Rev. Stat. U. S. § 629. THE JUDICIAL DEPARTMENT. 127 Also, concurrently with State courts, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of S2,000, and arising under the Constitution and laws of the United States, or treaties made, or which shall be made under their authority, or in which coutroversy the United States are plaintiffs or petitioners ; or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid ; or a controversy between citizens of the same State claiming lands under grants from different states ; or a controversy between citizens of a State and foreign states, citizens or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid.^ Congress has also, in pursuance of treaties with certain countries, provided for the holding of courts in them by the ministers and consuls of the United States, by which offences committed in those countries by citizens of the United States are to be tried, as well as controversies between such citizens and others.^ Transfer of Oausesfrom State Courts. — As suits may be instituted in the state courts in all cases in which the jurisdiction of the federal courts is not made exclusive, the purpose had in view in conferring the federal power would often be defeated if there were not some provision under which a cause brought in a state court might be removed to a federal court. For example, if a citizen of one State should bring suit in one of its courts against a citizen of ■ another State, the case would be one which by the Consti- tution is embraced in the grant of the federal power ; and 1 Act of March 3, 1887, 24 Stat, at Large, 552, as amended by Act of August 11, 1888, 25 Stat, at Large, 434. 2 Rev. Stat. U. S. § 4083, et seq. A British subject who has shipped as a sailor upon an American vessel may be tried before such a court for the murder of the mate of tlie vessel while it was lying in Japanese waters. Ross i.MoIntyre, 11 Sup. Ct. Rep. 897. 128 CONSTITUTIONAL LAW. the reason why it was included is that it may sometimes happen that local feelings, sentiments, prejudices, or pre- possessions may preclude a fair trial in the state court, or at least give rise to fears or suspicions that such may be the case. But it may be and is entirely proper to allow the suit to be thus brought in the first instance, because in most cases no such influences will be suspected or feared, and the parties would go to trial in the state court without objection. But if they are feared, the reasons for refer- ring the case to the federal court are then apparent. A case of more importance to the federal jurisdiction is where a federal officer is sued in a state court, for some act or omission in his office. For many such acts or omis- sions there is no civil responsibility in any court, but for some there is. The general rule is, that, if a duty imposed upon an ofllcer is exclusively of a public nature, his neg- lect to perform it can only be punished bj- some proceed- ing, either civil or criminal, instituted bj' the proper public authorities ; but if a duty is imposed upon him for the benefit of an individual, the latter has his private action to recover damages for anj- failure in performance whereby he is injured. The difference between the public and the private duties is well illustrated in cases arising under the post-ofl3ce laws. The Postmaster-General has duties to perform, which are of high importance to the nation and to all its people ; but thej' are public duties ex- clusivelj^, and he never becomes charged with obligatiofis to any particular person, so as to be liable to individual actions.-' It is difierent with a local postmaster. When mail matter is received at his office, directed to a particu- lar person, it becomes his dutj' to that person to deliver it on demand, and he is liable to a suit for damages in case of refusal.^ A like distinction exists between the - Lane v. Cotton, 1 Ld. Eaym. 646 ; s. c. 12 Mod. 472, and 1 Salk. 17; Smith v. Powditch, Cowp. 182 ; Rowningw. Goodchild,2 W. BL 906 ; Whitfield v. LeDespeneer, Cowp. 754, 765. 2 Teall V. Felton, 1 N. Y. 537 ; 8. c. in error, 12 How. 284. THE JUDICIAL DEPARTMENT. 129 duties of the Secretary of the Treasurj- and the collector of the customs at a port : the former is responsible only to the government for the faithful performance of duty ; but the latter owes duties to those whose imported goods pass through his hands, and he may become liable to private suits for oppressive conduct and illegal charges.^ So the duties of the United States marshal, which resemble those of the sheriff, are to a large extent duties to individuals, and may frequently subject him to suits. So any federal officer may become involved in private suits on allegations that, in the pretended discharge of dut}-, he has tres- passed on the rights of third parties. All these, and many others which might be named, are cases coming within the scope of the federal judicial power, and many of them are cases in which it might be exceedingly- impor- tant to the federal authority that thej' be referred to the federal courts for final adjudication. Accordingly it is provided by statute that causes may be removed from the state to the proper Circuit Courts of the United States in the following cases : ^ — Any suit of a civil nature at law or in equity arising under the Constitution or laws of the United States or treaties made under its authority, of which the Circuit Courts of the United States are given original jurisdiction bj' section one of the act, ' may be removed bj' the defend- ant or defendants. Anj' other suit of a civil nature at law or in equity, of which the Circuit Courts are given jurisdiction by section one of the act, brought in a state court, may be removed by the defendant or defendants, being non-residents of that State. 1 Barry v. Arnaud, 10 Ad. & EI. 646. 2 Proceedings to appropriate property to public uses under the eminent domain are cases removable to tlie federal courts, where the alienage or citizenship is such as to give the right. Warren v. Rail- road Co., 6 Biss. 425; Patterson v. Boom Co., 3 Dill. 465 ; Boom Co. V. Patterson, 98 U. S. 403. 3 The part of the section referred to is given, ante, p. 127. 9 130 CONSTITUTIONAL LAW. When in any suit mentioned in this section there is a controversy which is wholly between citizens of different States, and which can be fully determined as between them, either one or more of the defendants actually interested in such controversy may remove said suit. Where a suit is pending, in which there is-a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit, at any time before the trial thereof, when it shall be made to appear to the Circuit Court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which said defendant ma3- because of such prejudice and local influence have the right to remove said cause ; provided that if the cause is severable and can be justly determined in the state court as to the other defendants, it may be remanded as to such defendants. Where a suit involves the title to land, and it is made to appear that the parties claim title under grants from differ- ent States, the suit may also be removed.^ Also, when anj- civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against anj- person who is denied, or cannot enforce, in the judicial tribunals of the State, or in the part of the 1 Act of March 3, 1887, 24 Stat, af Large, 552. as amended by Act of August 11, 1888, 25 Stat, at Large, 4.34, §§ 1 and 2 The right to remove does not depend on the validity of the claim set up under the Constitution and laws. It is. enough if it involves a real controversy. Southern Pac. R. R. Co. v. California, 118 U. S. 109. A case is re- movable as arising under laws of United States where the validity of a land patent is involved. Mitchell v. Smale, 11 Sup. Ct. Rep. 819. See cases ante, pp. 113, 114. To authorize removal on the ground of local prejudice, $2,000 must be involved, and the proof must convince the court of the truth of the ground alleged. A perfunctory show- ing by a formal affidavit is not enough. In re Pennsylvania Co., 137 U. S. 451. As to what are separable controversies, see Graves v. Corbin, 132 U. S. 571 ; Louisville, &c. R. R. Co. v. Wangelin, 132 U. S. 599 ; Brown v. Trousdale, 138 U. S. 389. THE JUDICIAL DEPARTMENT. 131 State where such suit or prosecution is pending, anj- right secured to him bj' anj' law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States ; or against anj- officer, civil or military, or other person, for any arrest or imprisonment, or other trespasses or wrongs, made or committed bj' virtue of or under color of authority derived from anj- law providing for equal rights as aforesaid ; or for refusing to do any act on the ground that it would be Inconsistent with such law, — such suit or prosecution may, upon the petition of the defendant stating the facts and verified by oath, be removed for trial into the next Circuit Court to be held in the district.^ Also, when any suit or criminal prosecution is com- menced in anj' court of a State against anj' oflScer ap- pointed under or acting by authority of any revenue law of the United States ; or against any person acting under or by authority of such officer, on account of any act done under color of his oflSce or of any such law, or on account of any right, title, or authority claimed by such officer or person under any such law : or is commenced against any person holding property or estate by title derived from any such officer, and affects the vahdity of any such reve- nue law ; or is commenced against any officer of the United States, or other person, on account of any act done under the provisions of the laws of Congress respect- ing the elective franchise, or on account of any right, title, or authority claimed by such officer or other person under any of said provisions, — such suit or prosecution may be removed for trial into the Circuit Court of the United States for the district, upon the petition of the de- fendant setting forth the nature of the suit or prosecutton, and duly verified.^ 1 Rev. Stat. U. S § 641. See Texas v. Gaines, 2 Woods, 342 ; Strauder v. West Virginia, 100 U. S. 303 ; Neal v. Delaware, 103 U. S. 370 ; Bush v. Kentucky, 107 U. S. 110. 2 Rev. Stat. U. S. § 643. This section is a modification and en- 132 CONSTITUTIONAL LAW. Also, whenever a personal action is brought, in any state court, by an alien, against a citizen of a State who is, or when the action accrued was, a civil officer of the United States, being a non-resident of the State where suit is brought, the action may be removed into the Cir- cuit Court of the United States for the district, in the manner provided for the cases last above mentioned.^ In some of the cases in which removal of causes is pro- vided for, there is no act of Congress which would give to the federal courts original jurisdiction. Nevertheless, it is competent to give jurisdiction of cases removed, pro- vided they come within the grant of judicial power by the Constitution.^ The right of removal cannot be taken away or limited by state laws. Therefore, a right to recover damages for a personal injurj' arising under a state statute may be enforced in the federal court by a citizen of another State against a citizen of the State where suit is brought, not- withstanding the state statute undertakes to Hrait the remedy to suits in its own courts.^ And the right of a foreign corporation to do business in a State cannot be made conditional on its waiving the right to remove suits largement o£ section 3 of what was known as the "Force Bill " of March 2, 1833 (4 Stat, at Large, 632), which was passed to provide the means for defeating attempts being made by state legislation in South Carolina to nullify the federal revenue laws. The Force Bill also contained a provision under which the defendant, if in custody, might be brought before a federal court or judge on habeas corpus, to be dealt with according to the rules of law and the order of the court or judge. That act did not in terms apply to criminal cases, but to " suit or prosecution," and it was enlarged to embrace criminal cases by the act of Feb! 28, 1871 (16 Stat, at Large, 438). Criminal prose- cutions for alleged offences against State laws may be removed from the State to the federal court when the facts are such as to bring them within the terms of Rev. Stat. U. S. § 643, above cited. Ten- nessee V. Davis, 100 U. S. 257 ; Davis v. South Carolina, 107 U.S. 697. 1 Rev. Stat. U. S., § 644. 2 Gaines v. Fuentes, 92 U. S. 10. 8 Railway Co. v. Whitton, 13 Wall. 270. THE JUDICIAL DEPAKTMBNT. 133 against it to the federal courts, and the waiver itself, if made, would be void.* The right to transfer a cause to the federal court being statutory, the case shown by the petition roust come clearly within the statute, or it will be ineflfectual.^ While, in general, any proceeding before a court is a "suit" within the statute, one before an administrative board is not.' If the transfer is actually made on insufficient papers, the federal court will remand the case on its atten- tion being called to the defect ; * but if they are sufficient, the state court can take no further proceedings in the cause except such as are incident to the removal.'' Habeas Corpus. — The Supreme Court and the Circuit and District Courts have power to issue the writ of habeas corpus, and the several justices and judges thereof, within their respective jurisdictions, have also power to issue it, for the purposes of an inquiry into the cause of restraint 1 Insurance Co. v. Morse, 20 Wall. 445 ; Barron u. Burneide, 121 U. S. 186. 2 Insurance Co. v. Pechner, 95 U. S. 183; Gold Washing, &c. v. Keyes, 96 U. S. 199. But a state court is not bound to surrender jurisdiction until a case is made which shows on tlie face of the papers a right to remove. Stone v. South Carolina, 117 U. S. 430. An ap- plication may not he conditioned upon the decision of a motion to dis- miss pending in the state court. Manning v. Amy, 11 Sup. Ct. Rep. 707. 5 Upshur Co. V. Rich, 135 U. S. 467, and cases cited and discussed. 4 Gold Washing, &c. Co. v. Keyes, 96 U. S. 199. All disputed questions of fact raised upon petitions for removal are to be determined by the federal court. Kansas City, &c. R. R. Co. v. Daughtry, 138 U. S 298. Under the Act of 1875 error lay from an order remanding. This is otherwise under the Act of 1887, even in view of the Act of 1889, 25 Stat, at Large, 693, which allows a review in the Supreme Court of any judgment of the Circuit Court involving its jurisdiction. Richmond, &c. R. R. Co. v. Thouron, 134 U. S. 45. 5 Steamship Co. f. Tugman, 106 U. S. 118. Where a case has once been tried in the state court, and the rule of law settled for its deter- mination in the highest state court, if afterwards a new trial is granted, and the case then transferred to the federal court, the latter will ap- ply the same rule of law in disposing of it. Hazard v. Railroad Co., 4 Biss. 453. 134 CONSTITUTIONAL LAW. upon liberty. But in no case shall the writ extend to a prisoner in jail, unless where he is in custody' under or by color of the authority of the United States ; or is com- mitted for trial before some court thereof ; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; ^ or is in custody in violation of the Con- 1 This particular case was provided for by wliat was known as the " Force Bill," of March 2, 1833 (4 Stat, at Large, 632), passed to counteract South Carolina measures logking to the nullification of federal revenue laws. It was first called in requisition, however, to prevent the nullification of the Fugitive Slave Law. The United States marshal for the District of Ohio, disregarding an order by a state judge for the discharge from custody of a person held by him as a fugitive slave, was proceeded against as for a contempt of court. He was brought before Mr. Justice McLean at chambers, and dis charged. The proceedings showed on their face that the state judge had no jurisdiction, and the discharge of the marshal followed as of course. Eobinson, ex parte, 6 McLean, 365. See Ex parte Bridges, 2 Woods, 428. In United States v. The .Jailer of Fayette Co., Ky., 2 Abb. U. S. 265, the same law was applied to. a different case. The relator who sued out the writ was in the custody of the jailer under a regular commitment, made by a court of competent jurisdiction under the laws of Kentucky, charging him with murder. Nothing on the face of the papers Indicated that the case was any otherthan a common case of the crime charged. The relator, however; offered to show that the act with which he was charged was done by him Tinder the authority of the United States in the execution of its revenue laws. Judge Ballard, United States District Judge, entered upon an examination of the facts, and, reaching the conclusion that the prisoner was justified, ordered him discharged. See also Ex parte Jenkins, 2 Wall. Jr. C. C. 521. The principal question which the above cases present must be regarded as settled ^by In re Neagle, 135 U. S. 1, where a man who was attacking Justice Field, while he was travelling his circuit in the performance of his duties, was killed by a deputy United States marshal, and the latter, being charged with murder by the State of California, was released on habeas corpus by the United States Circuit Court. The Supreme Court, having reached the conclusion that the marshal's act was justifiable and was done in pursuance of a law of the United States, and that his imprisonment was in violation of the laws thereof, held that the case was within the statute, and that he was not answerable for his act to the State of California. THE JUDICIAL DEPARTMENT. 135 stitution, or of a law or treaty of the United States ; or, being a subject or citizen of a foreign state and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authorit3', privilege, protection, or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of na- tions ; ■'^ or unless it is necessary to bring the prisoner into court to testify.^ This last is a provision for facilitating the investigation of facts in federal tribunals, and all the other cases mentioned are cases in which the national au- thority is in some way involved.^ The Supreme Court has authority to issue the writ, but, except in cases affecting ambassadors, ministers, or consuls, or those in which a State is a party, it can only be done for a review of the judicial decisions of some inferior officer or court,* In the exercise of this revising power it may issue the writ ; ^ and it, also, has jurisdiction of appeals from rulings of the Circuit Courts on writs issued by them in certain cases provided for by statute." ' This provision was made by act of Aug. 29, 1842 (5 Stat, at Large, 529), and was enaoted in consequence of .the prosecution in New York of a British subject for an act which his government avowed. 2 Rev. Stat. U. S., §§ 751-753. 8 There is no jurisdiction, for example, to interfere with the cus- tody of children, even where tliere is diverse citizenship. In re Bur- rus, 136 U. S. 586. « Ex parte Hung Hang, 108. U. S. 552. 5 Ex parte Watlcins, 7 Pet. 568; Ex parte Milbum, 9 Pet. 704; Matter of Kaine, 14 How. 103 ; Ex parte Virginia, 100 U. S. 339. 6 Act of March 3, 1885, 23 Stat, at Large, 437, and Rev. Stat. U. S. § 763. The act applies to the case of persons held in alleged viola- tion of the Constitution, laws, or treaties of the United States, and of foreign citizens held for acts done under any rights claimed under any commission of a foreign nation, the effect of which depends on a treaty or the law of nations. On such appeals the Supreme Court must examine fully into the facts : In re Neagle, 135 U. S. 1 ; even into facts outside the record not inconsistent with those in it. Ex parte Mayfield, 11 Sup. Ct. Rep. 939. In view of this provision fqr 136 CONSTITUTIONAL LAW. The general authority to examine, by means of this writ, into unlawful restraints upon personal libertj', has not been conferred upon the United States, and therefore remains with the States.^ Subject to the paramount au- thority of the national government to determine whether persons held by its courts and officers are properly held, the States may inquire into the grounds upon which any person within their limits is held, and may discharge him if his restraint is illegal, even though the illegality arises from violation of the Constitution and laws of the United States.^ But if state tribunals issue the writ for a prisoner detained under federal authority, it must be dismissed when return is made showing the facts.° A prisoner held under state process for extradition to another State may have a habeas corpus from a federal court or judge; the process of extradition being provided for hy, and taken under, the Constitution of the United States.* The writ of habeas corpus cannot be used as a writ of error. If an inferior court or an officer has jurisdiction to act in the matter in question, the action will not be set aside for irregularities or errors of judgment.^ \ appeals, the Supreme Court will not ordinarily itself (issue writs of habeas corpus. Ex parte Mirzaii, 119 U. S. 584. ' Ex parte Dorr, 3 How. 103; Dekrafft w. Barney, 2 Black, 704. A federal court may, in advance of a trial in a state court for an offence against a state law, which is void under the federal Constitu- tion, discharge a defendant, but ordinarily, when bail is allowed, it will not. Ex parte Royall, 117 U. S. 241. See In re McCall, 139 U. S. 449. 2 Robb V. Connolly, 111 U. S. 024. 8 Ableman v. Booth, 21 How. 506 ; Tarble's Case, 13 Wall. 397. * Ex parte Smith, 3 McLean, 121. 6 In re Lane, 135 TJ. S. 443; Stevens v. Fuller, 136 U. S. 468, Wood V. Brush, 11 Sup. Ct. Rep. 738. So as to the ruling of an officer in extradition proceedings. In re Oteiza, 136 U. S. 330. A conviction of murder will not be set aside because too few grand jurors found the indictment. Ex parte Wilson, II Sup. Ct. Rep. 871 If, however, there is no jurisdiction to impose the restraint, the pris- oner will be discharged, as in case of punisliment for contempt of a THE JUDICIAL DEPARTMENT. 137 Appellate Jurisdiction. — In all cases to which the federal judicial power extends, except those in which ori- ginal jurisdiction is conferred upon it, the Supreme Court has appellate jurisdiction, both as to law and fact, with such exceptions and under such reservations as Congress shall make.-' What the cases are in which appeals may be, taken from the state courts has been shown ; and provi- sion has also been made by various statutes for the exer- cise of appellate jurisdiction in cases heard in the federal courts. But many cases are allowed to be finally deter- mined in the Circuit Court of Appeals,^ the Circuit and District Courts and the Court of Claims. General Principles. — The federal courts exercise the jurisdiction conferred upon them, and restrain their action within it, according to certain general principles, some of which are declared by statute, but the most of which arise from a consideration of the general nature of the consti- tutional structure, and from rules of eomit}' recognized and acted upon between independent jurisdictions, or be- tween jurisdictions having concurrent authority, according as the case maj' be. The principal of these may be here mentioned. The Law Administered. — It has been mentioned in another place that each of the several States has a com- mon law of its own, derived in the case of most of them void order of court : In re Ayers, 123 U. S. 443 ; or in case of a second sentence for the same offence, in contravention of an express consti- tutional immunity. Nielsen, Petitioner, 131 U. S. 176. 1 Const., Art. III. § 2, cl. 2. In most cases there can be no appeal from the Circuit Courts unless $5,000 is involved in the judgment. As to the mode of determining the amount involved where there are several parties in equity or in admiralty with distinct interests, or where judgment goes for defendant, see Smith Purifier Co. o. Mc- Groarty, 136 U. S. 2.37 ; Handley o. Stutz, 137 U. S. 366 ; Clay v. Field, 138 U. S. 464; Henderson u. Coal Co., 11 Sup. Ct. Rep. 691; Gor- man V. Havird, Id. 943. If a case is dismissed for want of jurisdiction, the jurisdictional point may be reviewed by the Supreme Court, irre- spective of the amount involved. , 25 Stat, at Large, 693. 2 Established by Act of March 31, 1891, 26 Stat, at Large, 826. 138 CONSTITUTIONAL LAW. from the common law of England, but modified more or less in adoption by circumstances, usage, or statutes. This common law determines to a large extent the civil rights of the people, and it also makes man^- acts punish- able as crimes. But the United States as such can have no common law. It derives its powers from the grant of the people made bj- the Constitution, and thej' are all to be found in the written law, and not elsewhere.^ It must therefore find its power to punish crimes in laws of Con- gress passed in pursuance of the Constitution, defining the oflTences and prescribing what courts shall have jurisdiction over them. No act can be a crime against the United States which is not made or recognized as such by federal constitution, law, or treatj'.^ But the federal courts sit- ting in the several States, where their jurisdiction depends upon the character or residence of the parties who sue or are sued, administer for the most part the local law, and they take notice of the state common law, usages, and statutes, and apply them as the state courts would apply them in like controversies.' In all such cases if the de- cisions of the state courts afford precedents for their guid- ance, the federal courts are to follow them for uniformity, and the state decisions will thus become the final rule and authority on questions of state law, for like reasons to those which require finality to federal decisions on ques- tions of federal law.^ And the federal courts will be particularly careful to follow state decisions on questions involving the title to land or other permanent property.* 1 Wheaton v. Peters, 8 Pet. 591, 658 ; Bucher v. Cheshire R. R. Co., 125 U. S. 555. 2 United States v. Hudson, 7 Cranch, 32. > Livingston's Lessee v. Morse, 7 Pet. 409 ; Tioga R. R. Co. v. Blossburg, &o. R. R. Co., 20 Wall. 137 ; Case v. Kelly, 1.33 U. S. 21. 1 Townsend v. Todd, 91 U. S. 452 ; Elmwood v. Marey, 92 U. J^. 289 ; Railroad Co. v. Georgia, 98 U. S. 359. ^ Irvine v. .Sim's Lessee, 3 Dall. 425 ; Walker v. Harbor Commis- sioners, 17 Wall. 648. A single judgment of sta|6 court on a ques- tion of local law, unless it has become a rule of property, is not 'HE JUDICIAL DEPARTMENT. 139 It is therefore a general rule, that, upon questions of the construction, operation, or force of anj- provision of the state constitution or laws, or of the validity of any state enactment, or any power, right, privilege, or exemption claimed under state authority, or of the force or applica- tion of the local common law or usages, the decisions of the state courts will furnish the rule of decision for the federal courts,-' and if the judgments of the state court of last resoi't are found to be in conflict, the federal courts ■will follow the last settled adjudications.'' But there are certain cases in which this rule cannot be applied, because the reasons on which it rests are inappli- cable. It cannot, for example, be applied in any case where the decision of the state court involved a question of national authority, or any right, title, privilege, or exemption derived from or claimed under the Constitution or any law or treaty of the United States.' Nor can it be applied to questions not dependent upon local statutes or usages ; such as the construction, operation, and nejiotia- bility of bills of exchange and other commercial contracts, contracts of insurance and bailment, and questions of in- jury dependent on principles which are of general recog- nition.* Nor are state decisions upon the validity or conclusive on a federal court, though entitled to respect. Gibson v. Lyon, 115 U. S. 439. 1 Slielby V. Guy, 11 Wheat. 361 ; Elmwood v. Marcy, 92 U. R. 289 ; Bucher v. Cheshire R. R. Co., 125 U. S. -555 ; Gormley v. Clark, 134 U. S. 338 ; Detroit v. Osborne, 185 U. S. 492 ; Leeper v. Texas, 139 U. S. 462. ' Green v. Neal's Lessee, 6 Pet. 291 ; Suydam v. Williamson, 24 How. 427. See Fairfield v. Gallatin, 100 U. S. 47. 8 State Bank v. Knoop, 16 How. 369 ; Jefferson Branch Bank v. Skelley, 1 Black, 436; New Orleans Water Works v. La. Sugar Co., 125 U. S. 18. The question in these cases was whether a state statute impaired the obligation of a contract based on a previous statute. See, also, Yick Wo v. Hopkins, 118 U. S. 356. * Chicago V. Bobbins, 2 Black, 418 ; Boyce v. Tabb, 18 Wall. 546 ; Venice v. Murdock, 92 U. S. 494 ; Pana v. Bowler, 107 U. S. 529 ; Myrick v. Mich, Cent. R. R. Co., 107 U. S. 102; Liverpool, &c. Nav. Co. V. Phenix Ins. Co., 129 U. S. 397. 140 CONSTITUTIONAL LAW. construction of a state statute binding when tlie statute is in tiie nature of a contract, and private rights have accrued under it, or when contracts have been made under it sanctioned by state decisions afterwards overruled.^ So, if when the contract is made the state courts have made no ruling upon the statute, or if their rulings are conflict- ing, the federal courts will determine for themselves, independently of state decisions, its construction and validitj-.^ The States cannot enlarge the federal jurisdiction, and confer authority over new cases upon the federal courts. But the federal laws, nevertheless, recognize such new rights as are given by state statutes, and administer rem- edies in respect to them when cases arise over which they have jurisdiction under the laws of Congress.* For example, where a state statute gives an action in its courts for the recovery of damages where death has been caused by wrongful act, neglect, or default, the part\' entitled to bring the action maj* at his option sue in the federal court, if, by reason of citizenship or alienage, he would be at liberty to enforce other rights in that court.^ On the other hand. Congress can confer no part of the federal judi- cial power on the State courts, or on any courts not estab- lished b}- its ovpn authority ; ° and a State cannot give to its own courts authority to enforce or assist in the enforce- ment of a law of Congress, such, for example, as the Fugi- tive Slave Law.° 1 Gelpcke v. Dubuque, 1 Wall. 175; Olcott w. Supervisors, 16 Wall. 678. 2 Burgess v. Seligraan, 107 U. S. 20 ; Pleasant T'p v. Ins. Co., 138 U. S, 67. See Enfield v. Jordan, 119 U. S. 680. 8 Ex parte McNiel, 13 Wall. 236; Clark v. Smith, 13 Pet. 195; Holland v. Challen, 110 U. S. 15 ; Ridings v. Jolinson, 128 U. S. 212; Whitehead v. Sliattuck, 138 U. S. 146. * Railway Co. v. Whitton, 13 Wall. 270. ° Martin v. Hunter's Lessee, 1 Wheat. 304; Stearns v. United States, 2 Paine, 300. ^ Prigg I'. Pennsylvania, 16 Pet. 539. Yet state courts, with their consent, may be invested with jurisdiction of some matters arising. THE JUDICIAL DEPAETMENT. 141 Conflict of Jurisdiction, — In strictness there can be no such thing as a conflict of laws between State and nation. The laws of both operate within the same territorj-, but if in anj' particular case their provisions are in conflict, one or the other is void. If a law of Congress is passed upon a subject which is within its constitutional powers, any state legislation opposed to it is a mere nullitj'. For tliis reason state statutes which in their operation would im- pede the execution of the Fugitive Slave Law were mere futile attempts to make laws, and were to be held void by the state judiciary as well as \>y the federal.' So are all state laws which tend to impede or obstruct the laws passed bj- Congress under its power to regulate commerce,^ all which undertake to lev}- taxes on the means selected by the general government for use in the exercise of its essen- tial powers,'' on its land,* on the franchises of corporations created b}' it,^ and so on. On the other hand, a federal enactment taxing a State or its municipal corporations is inoperative,^ and so is one undertaking to estabhsh regu- lations of local commerce within the States, as it cannot interfere with the operation of state laws on the same sub- ject.^ In these cases the federal and state courts, if the question came before them, would recognize the same rule, and each administer the same law. If they chanced to under the laws of the United States ; e. g., proceedings in eminent domain. United States v. Jones, 109 U. S. 513. > Sim's Case, 7 Cush. (Mass.) 285; Bushnell's Case, 8 Ohio St. 77. '^ State 0. Steamship Constitution, 42 Cal. 578; Council Bluffs «. Railroad Co., 45 Iowa, 338; Foster v. County Commissioners, 7 Minn. 140; State Treasurer v. Railroad Co., 4 Houst (Del.) 158, and cases cited ante, p. 68 e.t seq. 8 Palfrey v. Boston, 101 Mass, 329; Montgomery Co. v. Elston, 32 Ind. 27 ; and cases ante, p 60. * Van Brocklin v. Tennessee, 117 U S. 151 6 California v. Central Pac. R. R. Co., 127 U. S. 1. 6 United States v. Railroad Co., 17 Wall. 322. ' Unitea States v. De Witt, 9 Wall. 41 ; License Tax Cases, 5 Wall. 462. 142 CONSTITUTIONAL LAW. .differ in opinion, an appeal to the federal Supreme Court must determine the controversy. But questions of much delicacy sometimes arise, when the federal and state courts, under their concurrent au- thority, maj' find their respective jurisdictions invoked in the same controvers}'. This might lead to collisions, and to unseemly and perhaps dangerous controversies, if the action of the courts were not directed by certain rules of good sense and comity devised to preserve harmony and insure an orderlj' administration of justice. The most important of these rules is that the court which first obtains jurisdiction of a controversy by the service of process, will not be interfered with by the other in the exercise of that jurisdiction until final judgment and execution.' The federal courts will not therefore enjoin the proceedings m a suit in a state court, nor a state court those in a federal court. ^ In every respect except where the acts of Congress have made special provision, the courts of the State and of the United States are as distinct and independent in the exercise of their powers as the 1 Heidretterr Oil-Cloth Co., 112 U. S 294; Mallett v. Dexter, 1 Curt. 178 ; Tobey v. Bristol, 3 Story, 800 ; Wadleigh «. Veazie, 3 Sum. 165 ; Shoemaker v. French, Chase's Dec 305 ; The Celestine, 1 Biss. 1 j Ruggles V. Simonton, 3 Biss^ 325; Daly v. The Sheriff, 1 Woods, 175; Sharon v Sharon, 84 Cal. 424. Tliis remark will of course be under- stood as subject to the right to remove causes from the state to the federal courts in the cases provided by law. 2 Diggs V. Wolcott, 4 Cranch, 179 ; City Bank of New York v. Skelton, 2 Blatch 14; Ex parte Cabrera, 1 Wash. C. C. 232; Rorer's Inter-State Law, 12-14. But a prosecuting attorney may be enjoined from proceeding under a statute which the United States Supreme Court has held bad. Tuchman v. Welch, 42 Fed, Rep 548. While a state court cannot thus be directly compelled by a federal court to set aside an order, yet in a case where it has jurisdiction of the parties and subject-matter, a federal court may afford equitable relief against a state court's determination, where an impoBition has been practised upon that court, and the power conferred by it has been fraudulently exercised. Arrowsmith d. Gleason, 129 U. S. 86 ; Johnson o. Waters, 111 U. S. 640. THE JUDICIAL DEPARTMENT. 143 courts of two separate and independent nations.^ There- fore, where propert}- is in the official custody of the minis- terial officer of the courts of one jurisdiction, it cannot be taken from his custod}- on replevin or other process issued by the courts of the other,^ even though it be alleged that the officer holding it seized on process against one per- son the property of another.' The rule applies where the property and franchises of a corporation have been taken judicial control of by a state court and ordered sold : * and also where property is in the hands of a receiver ap- pointed by a court ; ^ and an}- attempt to disturb the pos- session of the receiver, except by permission of the court appointing him, will be a contempt of the authority of the court.* Tlie possession of the state courts, however, will not be allowed to defeat claims under the United States revenue laws, or under laws imposing forfeitures for offences.' Essential Powers. — The federal courts have all the powers which inhere in courts in general, and may exer- cise them for the full enforcement of their jurisdiction, until the judgments they render are performed or satis- 1 Rogers v Cincinnati, 5 McLean, 337, 339, Riggs v Johnson County, 6 Wall. 166. 2 Taylor v Carryl, 20 How. 583 Nor can the possession be dis- turbed by proceedings subsequently begun in a probate court after the death of the claimant. Rio Grande R. R. Co. v. Gomila, 132 U. S. 478. SFreenian c. Howe, 24 How. 450; Covell « Heyman, 111 U S 176; The Oliver Jordan, 2 Curt. 414. But the party claiming the property may. at his election sue the officer in trespass in such case, except where the officer has obeyed a writ which gave him no discre- tion, Buck V. Colbath, 3 Wall. 334 ; or he may sue his bond, Lam- mon V Feusier, 111 U. S. 17 ; or he may apply to the equity side of the federal court for the goods or the proceeds Krippendorf r. Hyde, 110 U S 276, Gumbel v Pitkin, 124 U. S 131 < Fox V Hempfield R. R Co., 2 Abb U S. 151. 6 Wiswall V Sampson, 14 How. 52. 6 De Visser v. Blackstone, 6 Blatch. 235 ; Wiswall v. Sampson, 14 How 52. ' United States v The Reindeer, 2 Cliff. 57. 144 CONSTITUTIONAL LAW. fled.' For this purpose they are authorized by law to issue all the customary writs.^ But they cannot exercise state powers, even though without doing so they are powerless to enforce their judgments. They may compel officers to levy taxes in proper cases, to satisfy judgments rendered by them against municipal corporations ; " but they cannot appoint officers to make the levies when there are none to act.^ Territorial Courts. — The provisions of the Constitution which define the limits of the judicial power have no appli- cation to the Territories. It is therefore competent for Congress to create courts for the Territories, and confer upon them such jurisdiction as may seem necessary or proper. And these courts are commonly empowered to exercise within the Territories 'all the powers which within the States are exercised by both the state and federal courts.^ They are created by Congress, but the practice, .pleadings, and forms and modes of proceeding, are left to be regulated by the territorial legislatures." Courts-Martial. — It is competent for Congress, by the rules and articles of war, to provide for the ordering of courts-martial for the trial of offences arising in the mili- tary and naval service ; ' and these courts, except as may be otherwise provided, will execute their duties and regu- late their mode of proceeding by the customary military law.* But a person not enrolled or liable to be enrolled 1 Bank of United States v. Halstead, 10 Wheat. 51. 2 Rev. Stat, of U. S., § 716. ^ Von Hoffman v. Quincy, 4 Wall. 535; Memphis w. Brown, 97 ■ U. S. 300. 1 Rees V. Watertown, 19 Wall. 107 ; Heine u. Commissioners, 19 Wall. 655. 6 American Ins. Co. v. Canter, 1 Pet. 511 ; Clinton «. Englebrecht, 13 Wall. 434; Gon-Shay-Ee, Petitioner, 130 U. S. 343. « HornbuckleK. Toombs, 18 Wall. 648; Cloughw. Curtis, 134 U. S. 361. '' Re Bogert, 2 Sawyer, 396, * Martin v. Mott, 12 Wheat. 19. THE JUDICIAL DEPARTMENT. 145 for service cannot be subjected to the jurisdiction of such courts ; ^ nor can the courts proceed against those who are liable without giving notice and an opportunity of defence to the accused.^ Where a court-martial proceeds without authority, and restrains a party of his libertj' or inflicts punishment, all the parties responsible for the action are liable to suits therefor in the common-law courts.' The jurisdiction of such courts raaj' alwaj-s be inquired into by civil courts, and a person held under their rules discharged if jurisdiction is wanting.* Military Courts or Commissions. — Offences against martial law and the laws of war, and all acts not justified by the laws of war, which are calculated to impede Or ob- struct the operations of the military authorities, or to ren- der abortive any attempt by the government to enforce its authority, may be punished by military courts or commis- sions organized by the President as commander-in-chief, or by the immediate militarj^ commander, or established. under the authority of Congress. But these tribunals cannot try offences against the general laws when the courts of the land are in the performance of their regular functions, and no impediment exists to a lawfil prosecu- tion there.* An impediment does exist, however, when martial law is lawfully declared ; ^ and this creates an exception to the general rule that the military in times of peace must be in strict subordination to the civil power, and in times of war also, except on the theatre of warlike movements.'' The military tribunals may also take cog- nizance of offences alleged to have been committed by soldiers upon citizens within the field of military opera- 1 Wise V. Withers, 3 Cranch, 331. 2 Meade v. Deputy Marshal, 2 Car. Law Kepos. 320. 8 Milligan v. Hovey, 8 Biss. 13. See Mostyn u. Fabrigas, Cowp. 161. 4 In re Grimley, 137 U. S. 147. 5 Milligan, ex parte, 4 Wall. 2. ' 8 Luther v. Borden, 7 How. 1. ' 1 Bl. Com., 413-415. 10 146 CONSTITUTIONAL LAW. tions agairist an armed rebellion, while the civil law is for the time suspended, and to the exclusion of the ordinary jurisdiction when restored.-' Political Questions. — Over political questions the courts have no authority, but must accept the determination of the political departments of the government as conclusive. Such are the questions of the existence of war, the restora- tion of peace, ^ the de facto or rightful government of an- other country,* the authority of foreign ambassadors and ministers,^ the admission of a State to the Union, ^ the restoration to constitutional relations of a State lately in rebellion, ° the extent of the jurisdiction of a foreign power,' the jurisdiction of the United States over an island in the high seas,* the right of Indians to recogni- tion as a tribe,' and so on. Final Authority in Construction. — The several de- partments of the government are equal in dignity and of co-ordinate authority, and neither can subject the other to its jurisdiction, or strip it of any portion of its constitu- tional powers. But the judiciary is the final authority in the construction of the Constitution and the laws, and its construction should be received and followed by the other departments. This results from the nature of its jurisdiction ; questions of construction arise in legal con- troversies, and are determined bj' the courts, and wlien determined the courts have power to give effect to their conclusions. Their judgments thus become the law of 1 Coleman!'. Tennessee, 97 U. S. 509. '' United States v. Anderson, 9 Wall. 56. 8 The Hornet, 2 Abb. U. S. 35; Gelston !'. Hoyt, 3 Wheat. 246. * Foster v. Neilson, 2 Pet. 253. ^ See Luther v. Borden, 7 How. 1 ; Marsh v. Burroughs, 1 Woods, 463. 6 Georgia v. Stanton, 6 Wall. 50. ' Williams v. Suffolk Ins. Co., 13 Pet. 415. 8 Jones V. United States, 137 U. S. 202. ' The Kansas Indians, 5 Wall. 737 ; United States v. Holliday. 8 WaJl. 407. THE JUDICIAL DEPARTMENT. 147 the land on the points covered by them, and a disregard of them, whether by private citizens or by officers of the government, could only result in new controversy, to be finally determined by the judiciary in the same way. But the courts have no authority to pass upon abstract ques- tions, or questions not presented by actual litigation, and have therefore nothing to do with questions which relate exclusively to executive or legislative authority' ; nor is there any method in which their opinions can be consti- tutionally expressed, so as to have binding force upon either the executive or the legislature, when the question presents itself, not as one of existing law, but as one of what it is proper or politic or competent to make law for the future. The judiciary, though the fl-nal judge of what the law is, is not the judge of what the law should be.^ It is verj^ proper, however, that the judiciary, in passing upon questions of law which have been considered and acted upon by the other departments, should give great weight to their opinions, especially if they have passed unchallenged for a considerable period.^ The judiciar}'- have often yielded to it when the correctness of a practical construction of the law by the executive departments, in the performance of their own duties, was in question ; ' but they cannot do this when, in the opinion of the court, the construction is plainly in violation of the Constitution.^ ^ Some few of the States make provision by their constitutions whereby the executive or the legislature may call upon the highest court of law of the State for its opinion upon important qilestions as a guide to their own action. 2 Stuart V. Laird, 1 Cranch, 299 ; Bank of Dnited States v. Hal- stead, 10 Wheat. 51, 63. * Edwards's Lessee v. Darby, 12 Wheat. 210 ; Surgett v. Lapice, 8 How. 48; Bissell u. Penrose, 8 How. 317; Union Ins. Co. v. Hoge, 21 How. 35, United States o. Gilmore, 8 Wall. 330; United States V Moore, 95 U. S. 760. « Story on Const., § 407 ; Cooley, Const. Lim., 6th ed., 8L 148 CONSTITUTIONAL LAW. CHAPTER VII. CHECKS AND BALANCES IN GOVERNMENT. What they are. — The American system of government is an elaborate system of checks and balances. As enu- merated by one of the early statesmen of the country, these are as follows : — First, the States are balanced against the' general government. Second, the House of Representa- tives is balanced against the Senate, and the Senate against the House. Third, the executive authority is m some degree balanced against the legislature. Fourth, the judiciar}' is balanced against the legislature, the executive, and the state governments. Fifth, the Senate is balanced against the President in all appointments to office, and in all treaties. Sixth, the people hold in their own hands the balance against their own representatives by periodical elections. Seventh, the legislatures of the several States are balanced against the Senate by sexennial elections. Eighth, the Electors are balanced against the people in the choice of President and Vice-President. And this, it is added, is a complication and refinement of balances which is an invention of .our own, and peculiar to this country.' The invention, nevertheless, was suggested by the Brit- ish constitution, in which a system almost equally elabo- rate was then in force. In its outward forms that system still remains ; but there has been for more than a century a gradual change in the direction of a concentration of- legislative and executive power in the popular House of Parliament, so that the government now is sometimes said, with no great departure from the fact, to be a government ' Letter of John Adams to John Taylor, Works, vi. 467. CHECKS AND BALANCES IN GOVERNMENT. 149 by the House of Commons. The judiciary, indeed, retains its independence and power, and these have been some- what strengthened as bills of attainder are discontinued, and as the judicial authority of the House of Lords is narrowed by legislation. Electors of President. — Of the checks in American government above enumerated, some have proved wholly illusory. This is emphatically true of the eighth. The theory of the Constitution is that there shall be chosen by each State a certain number of its citizens, enjoying the general confidence of the people, who shall independently cast their suffrages for President and Vice President of the United States, according to the dictates of their individual judgments. This theory was followed in the first three presidential elections, but from that time it fell into prac- tical disfavor, and now not only is the theory obsolete, but it would be thought in the highest degree dishonorable if an Elector were to act upon it. In practice, the per- sons to be voted for are selected by popular conventions, in advance of the choice of Electors, and these officers act as mere automata in registering the will of those who selected them. States and Nation. — The Constitution itself imposes very effectual checks on the powers of the States for. the protection of federal jurisdiction, by expressly restraining them from the exercise of some of the most important powers of sovereignty, and by subordinating others to the authority of Congress. These are all alluded to else- where. To maintain these unimpaired, the federal gov- ernment is made, as against the States, the final judge of its own powers. Nothing more need be said to show that encroachment upon tlie federal jurisdiction is efl!ectually provided against. On the other hand, there were various ways in which the States were expected to constitute a balance to the powers of the federal government. First, in the division of powers between States and nation, the larger portion, 150 CONSTITUTIONAL LAW. including nearly all that touched the interests of the peo- ple in their ordinary business relations and in their family and social life, were reserved to the States. All that related to the family and the domestic relations, the administration and distribution of estates, the forms of contract and conveyance, the maintenance of peace and order m the States, the punishment of common-law of- fences, the making provision for education, for public highways, for the protection of personal libertj- and lib- erty of worship, — all these powers were withheld from the jurisdiction of the federal government, and retained by the States, and their retention was calculated to give to the body of the people a larger Interest in a proper administration of state authorit}' than in that of the nation. Second, the States elected the representatives in Congress and chose the senators, and these would naturallj' be ex- pected to represent the opinions, feelings, and sentiments of their constituents, and to so act in their official posi- tions as to avoid all encroachments on the powers of the States. The President was also chosen by persons selected by the States for the purpose, who would naturally reflect the local views. Third, the States were given the privi- lege to originate amendments to the Constitution of the United States whenever they should be found necessary, and it was expected that they would make use of this privilege if at any time the federal government should be found relatively too strong, or should be thought to have unwarrantably extended its jurisdiction. From the nature of the case, however, it was impossible that the powers reserved to the States should constitute a restraint upon the increase of federal power, to the extent that was at first expected. The federal government was necessarily made the final judge of its own authority, and the executor of its own will, and any effectual check to the gradual am- pUfication of its jurisdiction must therefore be found in the construction put by those administering it upon the grants of the Constitution, and in their own sense of constitu- CHECKS AND BALANCES IN GOVERNMENT. 161 tional obligation. And as the true line of division between federal and state powers Las from the very beginning been the subject of contention, and of honest differences of opinion, it must often happen that to advance and occupy some disputed ground will seem to the party having the power to do so a mere matter of constitutional duty. The effectual checks upon the encroachment of federal apon state power must therefore be looked for, not in state power of resistance, but in the choice of representa- tives, senators, and presidents holding just constitutional views, and in a federal Supreme Court with competent power to restrain all departments and all officers within the limits of their just authority, so far as their acts may become the subjects of judicial cognizance. ^ Such amend- ments to the Constitution as have hitherto been made have originated with the Congress, and, with the single excep- tion of that which takes from the federal judiciary the power to take cognizance of suits by individuals against States, none of them has taken from the United States any real authority. Some other checks which are continuous and more effective are the following. ' Judicial Restraints on liegislative Encroachments^ — The business of the courts is, to apply the law of the land in such controversies as maj' arise and be brought before them. Their authority is co-ordinate with that of the legislature, neither superior nor inferior ; but each ivith equal dignity must move in its appointed sphere.^ But the judiciary, in seeking to ascertain what the law is which must be applied in any particular controversy, may pos- sibly find that the will of the legislature, as expressed in 1 It is no doubt true that, " in reference to all doubtful questions incident to our governmental system, the line of approach [should] be kept carefully in the foreground and any intrusion thereon most ■vigilantly avoided." — Rorer, Inter-State Law, p. 10. 2 Lindsay u. Commissioners 2 Bay (S C ), 61 ; Bates o. Kimball, 2 Chip (Vt.)77. 152 CONSTITUTIONAL LAW. statute form, and the will of the people, as expressed in the Constitution, are in conflict, and the two cannot stand together. In such a case, as the legislative power is con- ferred by the Constitution, it is manifest that the delegate has exceeded his authority ; the trustee has not kept within the limits of his trust. The excess is therefore inoperative, and it is the duty of the court to recognize and give efleet to the Constitution as the paramount law, and, by refusing to enforce the legislative enactment, practically nullify it. The obligation to perform this dutj', whenever the con- flict appears, is imperative ; but the diit^- is nevertheless a delicate one, because the court in declaring a statute in- valid must necessarily overrule the decision of the legis- lative department, made in the course of the performance of its peculiar duties, and where it must be assumed to have acted on its best judgment. The task, therefore, is one to be entered upon with caution, reluctance, and hesitation, and never until the duty becomes' manifestly imperative. The following general propositions will be found to state the obligations of duty and of forbearance for such cases which are generall)' reeognized. 1. The duty to pass upon a question of constitutional law ma}' devolve upon a court of any grade, and of either the federal or the state jurisdiction. Wherever the ques- tion can arise in court of the conformity of a statute to the Constitution, the court to whom the question is ad- dressed must in some manner dispose of it, and the power of the court to apply the law to the case necessarily em- braces the power to determine what law controls. In the absence of authoritative precedents, there can be no other test of this than the judgment of the court. The validity of a federal statute may therefore be a necessary question for consideration in a state court, and that of a state stat- ute in a federal court. Nevertheless, when the court to whom the question is addressed is not the court of last resort in respect thereto, it may well be expected to pro- ceed with more than ordinary caution and hesitation, and CHECKS AND BALANCES IN GOVERNMENT. 153 10 abstain altogether from declaring a statute invalid unless in the clearest cases, especially if, without serious detriment to justice, the decision can be delaj-ed until the superior court can have opportunity to pass upon it. There may be cases where, by inadvertence or accident, a bill which has gone through all the forms required for valid legislation is, nevertheless, clearly and without ques- tioii invalid ; but except in such cases the spectacle of an inferior magistrate, having merely police or other limited jurisdiction, assuming to pass judgment upon the legisla- tion of his State or countiy, and declare it invalid, can onl3' be ludicrous.'' 2. The judicial sense of propriety and of the importance of the occasion will generally incline the court to refuse a consideration of a constitutional question without the presence of a full bench of judges. With many courts this is a rule to which few exceptions are admitted, and those only Which seem to be imperative.^ 3. Neither, as a rule, will a court express an opinion adverse to the validity of a statute, unless it becomes abso- lutely necessary to the determination of a cause before it.' Therefore, in any case where a constitutional question is raised, if the record presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, the court will adopt that course, and the question of con- 1 Some courts have intimated that only the superior courts should assume to deny validity to a statute. Ortman r. Greenman, 4 Mich. 291. Compare May berry v Kelly, 1 Kans. 116. 2 Briscoe v. Bank of Kentucky, 8 Pet. 118. 8 Hoover y. Wood.9Ind 286, Smith i'. Speed, 50 Ala 277; Board of Education u. Mayor, 72 Ga. 353. Where the constitutional ques- tion was not raised until after denial of rehearing in a state supreme court, the United States Supreme Court will not consider it. Butler V. Gage, 1.38 U. S 52. The validity of a law ought not to be deter- mined in advance of its actual operation. So held on application to restrain the publishing of returns of the vote under an alleged invalid local option statute. Clayton « Calhoun, 76 Ga. 270. 154 CONSTITUTIONAL LAW. stitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable.^ This course has not alwa3s been followed ; but it has seldom occurred that a constitutional question has been considered settled, or been allowed to remain without further dispute and question where the opinion given upon it was rendered in a case not neces- sarily requiring it. Want of jurisdiction of the particular case is always reason wh}- the court should abstain from expressing opinions on other questions which parties may attempt to raise. 4. The court will not listen to an objection made to the constitutionality of an act hy one whose rights are not affected by it, and who consequently can have no interest in defeating it.'^ For example, one who has received com- pensation for property appropriated by statute to a public use will not be suffered afterwards to dispute the constitu- tional validity of the statute.' The statute is assumed to be valid until some one complains of it whose rights it invades. The power of the court can be invoked only when it is found necessar}- to secure and protect a partj' before it against an unwarranted exercise of legislative power to his prejudice.* 5. Nor can a court declare a statute unconstitutional and void vrhen the objection to it is merelj' that it is unjust and oppressive, and violates rights and privileges of the citizen, unless it can be shown that such injustice is pro- hibited, or such rights and privileges guaranteed by the Constitution. The proprietj' or justice or policy of legisla- tion, witliin ,the limits of the Constitution, is exclusively for 1 Ex parte Randolph, 2 Brock. 447 ; Freer v. Ford, 6 N. Y. 177. 2 Marshall v. Donovan, 10 Busli (Ky.), 681 ; Mobile, &c. R. R. Co. V State, 29 Ala. C86 ; Clough ». Curtis, J 34 U. S. 361. 3 Embury a. Connor, 3 N. Y. 511 ; Haskell v. New Bedford, 108 Mass 208. ■* Wellington, Petitioner, 16 Pick. (Mass.) 96; State i'. Rich, 20 Ma 393 ,■ Burnside v. Lincoln Co. Ct., 86 Ky. 423. CHECKS AND BALANCES IN GOVEENMENT. 155 the legislative department to determine ; and the moment a court ventures t6 substitute its own judgment for that of the legislature, it passes beyond its legitimate authority, and enters a field where it would be impossible to set limits to its interference, except as should be prescribed in its own discretion.'' The protection against unwise or oppres- sive legislation, within constitutional bounds, is by an ap- peal to the justice and patriotism of the repi'esentatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but courts cannot assume their rights.^ The judiciarj- can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of riglit, reason, and expedient'}- with the law-making power.' The question of the validity of a statute" must always be one of legisla- tive competency- to enact it ; not one of policy, propriety, or strict justice. 6. Nor can a statute be declared unconstitutional merely because in the opinion of the court it violates one or more of the fundamental principles of republican lib- erty, unless it shall be found that those principles are 1 It has been well said by one judge; "If the legislature should pass a law, in plain and unequiv9cal language, within the general scope of their constitutional powers, I know of no authority in this government to pronounce such an act void, merely because in the opinion of the judicial tribunals it was contrary to the principles of natural justice , for this would be vesting in the court a latitudmarian authority which might be abused, and would necessarily lead to col- lisions between the legislative and judicial departments, dangerous to the well-being of society, or at least not in harmony with the structure of our ideas of natural government." Commonwealth v. McCloskey, 2 Rawle (Pa ), 374. See Bebee v. State, 6 Ind. 515, 528. Many judges think laws laying protective duties are contrary to nat- ural justice ; but if they were at liberty to decide the validity of legislation on such grounds, the ordinary legislation could not be carried on except with their assent. 2 Bennett v. Bull, Baldw. 74 ; Pennsylvania R. R. Co. v. Riblet, 66 Penn. St. 164. 3 Madison, &c. R. R. Co. v. Whiteneck, 8 Ind. 217 ; Bull v. Read. 13 Grat. (Va.) 98. 156 CONSTITUTIONAL LAW. placed beyond legislative encroacliment by the provisions of the Constitution itself. The principles of republican government are not a set of inflexible rules, vital and active in the Constitution even when unexpressed ; but they are subject to variation and modification from motives of policy and public necessity, and it is only in those par- ticulars in which experience has demonstrated that any departure from the settled course must work injustice and confusion, that it is customary to incorporate them in the Constitution in such a way as to make them definite rules of action and decision. The following are illustrations. The principle that taxation and representation go together is important and valuable, and should never be lost sight of in legislation ; but, as commonly understood, it can never l)e applied universally without admitting every per- son to the elective franchise ; for taxes in some form fall upon all, — the rich and the poor, the infant and the adult, the male and the female, — and federal taxes reach the unrepresented Territories as well as the represented States. So the principle that local affairs shall be man- aged in local districts, and that these shall choose their own local officers, constitutes one of the chief excellencies of our system of government,; but in applying it the dif- ficulty is at once encountered of determining what are local concerns and what general ; and it may perhaps be found in a given case that the concerns that are set apart as local, if neglected or imperfectly performed, subject the whole State to embarrassment, so that state intervention becomes necessary. And it is obvious that, wherever a recognized principle of free government requires legisla- tion for its practical application and enforcement, the body that passes laws for the purpose must determine, in its discretion, what are the needs of legislation and what its proper limits. The courts cannot take such principles as abstract rules of law, and give them practical force.' 1 People >; Draper, 15 N. Y. 532; Baltimore v State, 15 Md 576/ People V. Mahaney, IS Mich. 498. CHECKS AND BALANCES IN GOVERNMENT. 157 7. When a question of federal constitutional law is involved, the purpose of the Constitution, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent ; and the debates m the Constitutional Convention, the dis- cussions in the Federalist and in the conventions of the States, are often referred to as throwing important light on clauses in the Constitution which seem blind or of am- biguous import. We may discover from these what the general drift of opinion was as to the division line between federal and state power on many subjects, and we can sometimes judge from that whether a particular authority lies on one side of the line or on the other. But we shall be misled if we attempt in this manner to judge of state legislative power when the limitations of the federal Con- stitution are not in question. We cannot test the vaUdity of any state statute by a general spirit which is supposed to pervade the state constitution, but is not expressed in words. Presumptively, when the people of the State, by their constitution, call into existence a legislative depart- ment, and endow it with the function of making laws, they confer upon it the full and complete legislative power, — as full and complete as the people, in the exercise of sover- eignty, could themselves have wielded it, — subject only to such restrictions as were by the same instrument imposed. "The law-making power of the State recognizes no re- straints, and is bound by none except such as are imposed b)' the Constitution. That instrument has been aptly termed a legislative act by the people themselves, in their sovereign capacity, and is therefore the paramount law. Its object is, not to grant legislative power, but confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute. These limi- tations are created and imposed by express words, or arise by necessary implication. The leading feature of the Constitution is the separation and distribution of the powers of the government. It takes care to separate the 158 CONSTITUTIONAL LAW. executive, legislative, and judicial powers, and to define their limits. The executive can do no legislative act, nor the legislature anj- executive act, and neither can exercise judicial authontj-." ^ Presumptive!}', therefore, if an act of the legislative department is not an encroachment upon executive or judicial power, it is valid. To show Its in- validitj', it is necessary to point out some particular in which, either in form or substance, it is inconsistent with the Constitution. The inconsistenc}' may consist, either, (1) in the failure to observe some constitutional form which is made essential to a valid enactment, such as the taking of the final vote thereon by yeas and najs when the Constitution requires it; or (2) in the disregard of an ex- press prohibition, as where it consists in a special charter of incorporation when the Constitution forbids incorpora- tion except under general laws ; or (3) in the disregard of some fundamental right declared in the bill of rights, as would be a statute compelling support of sectarian wor- ship or schools when the Constitution proclaims religious liberty. And in all these cases it is not the spirit of the Constitution that must be the test of validit)', but the written requirements, prohibitions, and guaranties of the Constitution itself.^ 8. A statute may sometimes be valid in part and invalid in other particulars. This often happens under state con- stitutions that require an act to contain but one object which shall be expressed in the title. If in such a case the act embraces two objects while the title expresses but one, the act will be unconstitutional and void as to the one not so expressed. So in the absence of such a re- quirement the act might be void as to one object because the legislation attempted was expressl}' forbidden by the constitution, while in other particulars it was plainly within the legislative cora|)etency. The general rule there- i Sill i: Corning, 15 N. Y. 297 ; Sears v. Cottrell, 6 Mich. 251 ; Dan- ville V Pace, 25 Grat. (Va ) 1. « Cooley, Const. Lim., 6tli ed., 204-209. CHECKS AND BALANCES IN GOVERNMENT. 159 fore is, that the fact that part of a statute is unconstitu- tional does not justify the remainder being declared invalid also, unless all the provisions are connected in subject- matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the act otherwise than as a wiiole. It is im- material how closely the valid and invalid provisions are associated in the act ; they may even be contained in the same section, and yet be perfectly distinct and separable, so that the one may stand though the other fall.' If, when the unconstitutional portion is stridden out, that which re- mains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sus- tained. But if the intent of the act is to accomplish a single purpose only, and some provisions are void, the whole must fail unless sufficient remains to effect the object without the invalid portion. And if they are so mutually connected with and dependent on each other as conditions, considerations, or compensations, as to warrant. the belief that the legislature intended them as a whole, and, that, if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions that are thus depend- ent, conditional, or connected must fall with them.^ 9. A doubt of the constitutional validity of a statute is never sufficient to warrant its being set aside. " It is not on slight implication and vague conjecture that the legis- lature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition 1 Commonwealth v. Hitchings, 5 Gray (Mass.), 482 ; Hagerstown V. Dechert, 32 Md. 369; State v. Clarke, 54 Mo. 17. ^ State V. Commissioners, 6 Ohio St. 497 ; State v. Dousman, 28 Wis. 541 ; Campau v. Detroit, 14 Midi. 276; Willard v. People, 5 111. 461 J Commonwealth u. Potts, 79 Penn. St. 164; Baker v. Braman, 6 Hill (N. Y.), 47. 160 CONSTITUTIONAL LAW. between the Constitution and the law should be such that the judge feels a clear and strong conviction of their in- compatibility with each other."' "It is but a decent respect due to the wisdom, the integrity, and the patriot- ism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved bej'ond all reasonable doubt." '' To be in doubt, therefore. Is to be resolved, and the resolution must support the law. This course is the opposite to that which is required of the legislature in considering the question of passing a proposed law. Legislators have their authority meas- ured by the Constitution ; they are chosen to do what it permits, and nothing more, and they take solemn oath to obey and support it. When they disregard its provisions, they usurp authoritj', abuse their trust, and violate the promise they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution, is to ti'eat as of nq force the most imperative obligations an)' person can assume. A business agent who would deal in that manner with his principal's business would be treated as untrustwoljthy ; a witness in court who would treat his oath thus lightly, and affirm things con- cerning which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applied the judg- ment of its members to the question of its authority to pass the proposed law, arid has only passed it after being satisfied of the adthority,'''\hat the judiciary waive their own doubts, and give it their support.^ 10. The validity of legislation can never be made to ^ Fletcher ;•. Peek, 6 Cranch, 87, 128. 2 Ogden V. Saunders, 12 Wheat. 213, 270. A court ought to adopt such a construction of a statute as will, without doing violence to the fair meaning of the words, harmonize it with the Constitution. Gren- ada Co. Supervisors v. Brogden, 112 U. S. 261- ' Osburn v. Stanley, 5 W. Va. 86 ; Kellogg v. State Treasurer, 44 Vt. 356. CHECKS AND BALANCES IN GOVERNMENT. 161 depend on the motives which have secured its adoption, whether these be public or personal, honest or corrupt. There is ample reason for this in the fact that the people have set no authoritj- over the legislators with jurisdiction to inquire into their conduct, and to judge what have been their purposes in the pretended discharge of the legislative trust. This is a jurisdiction which thej have reserved to themselves exclusively, and thej- have appointed frequent elections as the occasions and the means for bringing these agents to account. A further reason is, that to make legislation depend upon motives would render all statute law uncertain, and the rule which should allow it could not logicall.y stop short of permitting a similar inquirj- into the motives of those wlio passed judgment. Therefore the courts do not permit a question of improper legislative motives to be raised, but thej' will in every instance assume that the motives were public and befitting the station.* They will also" assume that the legislature had before it any evidence necessarj' to enable it to take the action it did take.^ 11. When a legislative enactment proves to be invalid, It is for all legal purposes as if it had never been.* It can support no contract, it can create no right, it can give pro- tection to no one who has acted under it, it can make no one an offender who has refused obedience to it. And this is true of anj' particular provision of a statute which 1 Ex parte McCardle, 7 Wall 506, 514 , Doyle v. Insurance Co., 94 U S. 535. Courts cannot inquire into legislative motives except as they may be disclosed on the face of the acts, or be inferrible from their operation considered with reference to the condition of the coun- try and existing legislation. Soon Hing v. Crowley, 113 U. S. 70.3. This i'ule applies to legislation of municipalities. Brown v Cape Girardeau, 90 Mo 377. 2 Johnson v. Railroad Co., 23 111. 202 j Lusher v. Scites, 4 W. Va. 11. Expert evidence is inadmissible to show that in providing for the infliction of the death penalty by electricity the legislature im- posed a cruel and unconstitutional punishment. People v. Durston, 119 N Y. 569. ' 3 Sumner v Beeler, 50 Ind. 341. 11 162 CONSTITUTIONAL LAW. proves invalid, while the remainder is sustained.^ It is true that one who assumes to disobej' a statute as invalid does so at the risk of being punished for his disobedience If the law is sustained ; but this is a risk which every one takes when he acts in any matter in respect to which the law is in dou,bt. /Suits against Officers. — The exemption of legislators from inquiry into motives would of itself protect them against suits by private individuals who may suffer dam- age from their action ; but they are also exempt on the further ground that the duties thej- perform are of a public nature exclusively, and they are therefore under responsi- bility only to the public. There is a like exemption in favor of inferior bodies who exercise a quasi legislative autliority,^ though it may be otherwise in respect to par- ticular duties with which such bodies are sometimes charged for the benefit of individuals, and which each member is expressly required to recognize and perform. The case of inferior officers exercising severallj' a discre- tionary duty to individuals is different. They are pro- tected while they act in good faith, but they are generally held responsible if they take advantage of their position to injure another maliciously and without cause.' This is the rule which is applied to election officers who are found guilty of having wrongfully refused to register voters or to receive their ballots.* Mere ministerial officers must 1 Cooley, Const. Lim., 6th ed., 222. 2 Baker v. State, 27 Ind. 485 ; Freeport v. Marks, 59 Penn St. 253 8 Bennett v. Fulmer, 49 Penn. St. 155; Billings v. Lafferty, 31 111. 318 ; Slioemaker v. Nesbit, 2 Rawle, 201 ; Parmelee v. Baldwin, 1 Conn 313. * Lincoln «. Hapgood, 11 Mass 350 ; Jeffries v. Ankeny, 11 Ohio, 322 ; Bevard v. Hoffman, 18 Md. 479 ; Goetcheus v Mathewson, 61 N. Y. 420 ; VVeckerly w. Geyer, US & R. 35 ; Miller v. Rucker, 1 Bush (Ky ), 135 ; Carter w. Harrison,5 Blackf. (Ind.) 138; Gnrdnnp Farrar, 2 Doug. (Mich.) 411 ; ' Dwight v. Rice, 5 La. An. 580 ; State v. Porter, 4 Harr. (Del.) 556; Wheeler k. Patterson, 1 N. H. 88 ; Fansler V. Parsons, 6 W Va. 486; Peavey v. Robbins, 3 Jones (N, C), 839; Rail V. Potts, 8 Humph. (Tenn.) 225; Sanders v. Getchell, 76 Me. 158; CHECKS AND BALANCES IN GOVERNMENT. 163 alwaj's at their peril keep within the limits of the law, for their duties are not discretionary, and the law is supposed to make plain for them what their duty is. Nor will the immunity of the legislative department cover the acts of its ministerial agents with a like shield of protection. And this is an important check which the judiciary holds upon the law-making departments : if the members are not directly responsible for exceeding their constitutional au- thority', the ministerial agents and officers through whom the legislature acts will always be so.'' Check on the Treaty-making J'ower. — The full treatj'- making power is in the President and Senate ; but the House of Representatives has a restraining power upon it in that it maj- in its discretion at any time refuse to give assent to legislation necessary to give a treaty effect. Many treaties need no such legislation ; but when moneys are to be paid by the United States, they can be appropri- ated by Congress alone ; and in some other cases laws are needful. An unconstitutionai or manifestly unwise treaty the House of Representatives may possibly refuse to aid ; and this, when legislation is needful, would be equivalent to a refusal of the government, through one of its branches, to carry the treaty into effect. This would be an extreme measure, but it is conceivable that a case might arise in which a resort to it would be justified.^ Judiciary and Executive. — From the foregoing it will appear that the judiciary has no control whatever over legislation, and no power whatever to question its pur- pose or animus, provided always that legislation is kept I within the limits of the constitutional grant. The remark i is equally true when applied to executive power. Within the sphere of his authority under the Constitution the Ex- Long V. Long, 57 Iowa, 497. See Murphy v. Ramsej', 114 U. S. 15. The Massachusetts, Ohio, and Iowa cases hold the officers responsible for refusing a legal ballot, even when they err in good faith. 1 Stockdale v. Hansard, 9 Ad. & El. 1 ; Milligan v. Hovey, 3 Bias, la 2 See ante, p. 106. 164 CONSTITUTIONAL LAW. ecutive is inclependent, and judicial process cannot reach him.^ But when he exceeds his authority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one, and his agents be- come personally responsible for their acts. The check of the courts, therefore, consists in their ability to keep the Executive within the sphere of his authority by refu^g to give the sanction of law to whatever he maj- do beyond it, and by holding the agents and instruments of his un- lawful action to strict accountability.^ The Executive can have no corresponding authority to pass upon the validity of either legislative or judicial ac- tion. His judgment of proposed legislation may be ex- pressed in his veto, but if that is overruled the Executive is as much bound as is any private citizen. He is also equally concluded b3- the judgment of a competent court, and it may become his duty as Executive to assist in en- forcing a judgment he believes erroneous, should enforce- ment bj- the ordinary proc»i& of the court and by its own oflficers become impossible. ^Nevertheless it is conceivable that the Executive may refuse to obey either a statute or the judgment of a court. Indeed, such cases have occurred in the history of the federal government, notably in the case of the Georgia Indians,' and in cases arising under the proclamation of President Lincoln purporting to sus- pend the habeas corpus.^ It can be said of such cases 1 Marbury v Madison, 1 Cranch, 137; Hawkins v Goverror, 1 Ark. 570 ; State v. Governor, 25 N. J. 331 ; People v. Governor, 29 Mich 3'20 ; Mauran v. Smith, 8 R. I. 192 ; State v. Warmouth, 22 La. An. 1 ; Rice v. Austin, 19 Minn. 103; Smith f. Myers, 109 Ind. 1; Bates V. Taylor, 87 Tenn. 319 ; and see ante, p. 110. ■i Milligan v. Hovey, 3 Biss. 13 ; Kendall v. United States, 12 Pet. 524; Little v. Barreme, 2 Cranch, 170. 3 Worcester v. Georgia, 6 Pet. 515 ; Webster's Works, 1. 268. The papers and documents are collected in Niles's Register, vols, xxxix.- xliv. * Merry man's Case, Taney's Dec. 246 ; s. c. 9 Am. Law Reg. 524; 14 Law Rep. ur. 8, 78. CHECKS AND BALANCES IN GTDVBENMENT. 165 only this, that the responsibility of the President for a refusal to regard the judicial mandate is on the one hand to the people and on the other to the process of impeachment. Impeachments. — The two verj' effective restraints which the legislature may interpose to the abuse of executive and judicial authority are, first, that which consists in its \ control over their jurisdiction, and, second, the proceeding , by impeachment. Much of executive authority comes, not from the Constitution, but from statute, and what is thus given may at anj' time be taken away The same is true of the courts. Some of them are purely statutorj- courts, and may be modified or abolished ; all of them derive the most of their jurisdiction from statutes, and whenever this is abused it can be restricted or taken away.* But it maj' also be modified or taken away on grounds of expediency or policy merely. Impeachment is for the purpose of punishing misconduct. By the Consti- tution of the United States the House of Representatives has the sole power of impeachment,^ and the Senate the sole pow^er to try its presentments. When the President is tried, the Chief Justice shall preside, and no person shall be convicted without the concurrence of two thirds of the members.' Judgment in case of impeachment shall not extend further than to removal from office and dis- qualification to hold and enjoy anj' office of honor, trust, or profit under the United States ; but the partj' convicted shall nevertheless be liable, and subject to indictment, trial, judgment, and punishment aiccording to law, pro- vided the impeachable offence is also an indictable of- fence.* The President's power to grant reprieves and pardons does not extend to impeachments.^ The oflfences for which the President or any other officer may be impeached are anj' such as in the opinion of the 1 Ex parte McArdle, 7 Wall. 506. 2 Const., Art. I. § 2, cl. 5. ' Const., Art. I. § 3, cl. 6. * Const., Art. I. § 3, cl. 7. ^ Const., Art. II. § 2, cl. 1. 166 CONSTITUTIONAL LAW. House are deserving of punishment under that process. They are not necessarily offences against the general lawss. In the history of England, where the like proceeding ob- tains, the offences have often been political, and in some cases for gross betrayal of public interests punishment has very justly been inflicted on cabinet officers. It is often found that offences of a very serious nature by high officers are not offences against the criminal code, but consist in abuses or betraj'als of trust, or inexcusable neglects of duty, which are dangerous and criminal be- cause of the immense interests involved and the greatness of the trust which has not been kept. Such cases must be left to be dealt with on their own facts, and judged ac- cording to their apparent deserts.^ The Veto Power. — The view most commonly taken of the veto power is perhaps that of Mr. Webster, that it is " an extraordinary power, to be exercised only in peculiar and marked cases : '' that " it was vested in the President, doubtless as a guard against hasty and inconsiderate legis- lation, and against any act, inadvertently' passed, which might seem to encroach on the just authority of other branches of the government," ^ or, it may be added, on the rights of the States or of individuals. The first six Presidents made use of it very sparingly, — some of them not at all ; but for this an important reason is found in the fact that the legislature and the President were generally in accord on important measures. It was used more freely by President Jackson, and still more freely by Presidents Tyler, Johnson, and Hayes. This might well occur, even with the same views of the proper functions of the veto, since the Presidents last named were confronted with Con- gresses of opposing political views, and had occasion to consider and pass upon a large amount of legislation that 1 The law and the precedents on the subject were largely exam- ined on the impeachment trial of President Johnson, and on the pre' vious trials of Judges Chase and Peck. 2 Webster's Works, i. 267. CHECKS AND BALANCES IN GOVERNMENT. 167 was not in accord with their own opinions of what was right in policy or sound in constitutional law. The rea- sons assigned for the vetoes have seldom been unimportant, and have often been the unconstitutionality of the legisla- tion to which assent was withheld. In some cases thera has been a species of silent veto, through a neglect of the President to return a bill transmitted to him within the last ten days of the session, whereby it would fail to become a law. It was not contemplated by the Constitution that the President should purposel}' defeat legislation in that mode ; and no doubt it has sometimes occurred through the im- possibility of giving careful examination to the provisions of bills referred to him, during the last days of the session, in the limited time allowed. To what extent the veto shall be resorted to must, always be matter of discretion with the President. The ' writer in the Federalist evidently imagined that its chief use would be the protection of the executive department against attempted encroachments. He speaks of "the propensity of the legislative department to intrude upon the rights and to absorb the powers of the other depart- ments." "the insufflcieney of a mere parchment delinea- tion of the boundaries of each," and " the necessity of furnishing each with constitutional arms for its own de- fence," and says : " From these clear and indubitable principles results the propriety of a negative, either abso- lute or qualified, in the executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might grad- ually be stripped of his authorities by successive resolu- tions, or annihilated by a single vote. And in the one mode or the other the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legis- lative body to invade the rights of the executive, the rules of just reasoning and theoretic propriety would of them- 168 CONSTITUTIONAL LAW. selves teach us that the one ought not to be left at the mercy of the other, but ought to possess a constitutional and effectual power of self-defence." It is added, however, that " the power in question has a further use. It not only serves as a shield to the execu- tive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body." ' Occasions for frequent differences between the legisla- ture and the executive, on questions of constitutional right or power, seem not to have been anticipated ; but it is in these that the use of the veto has been most important. No one has ever questioned the right and duty of the President to make use of his negative when it was believed the proposed law was subject to objection on constitu- tional grounds. It has been claimed, however, that when the point of constitutional law which the case presents is one which has previously received judicial examination and decision, he may not rightfully disregard this decision and base his negative on his own opinion opposed to that of the judiciary. That the President has a discretionary power to veto a bill, for any reason that appears to him sufficient, is un- doubted. The Constitution gives the power, and makes no exceptions. That it' is proper he should pay great def- erence to the judicial authority on such questions as have already been authoritatively determined, may also be con- ceded. But that he is guilty of any violation of duty, or is disrespectful to the judiciary, or disregards any just principle of government, when he acts upon his own judg- ment of constitutional right, power, or obligation involved 1 No. 73, by Hamilton. And see Madison's Works, iv. 369, letter to Edward Coles. CHECKS AND BALANCES IN GOVERNMENT. 169 in any proposed law, is not aduaitted. Wlien be does not approve a bill, he is to withhold his approval ; and when he may do so on grounds of mere expediencj-, it would be remarkable if he were not at liberty to do so when his objection goes to the very right of the legislature to pass the bill at all. The act making treasury notes a legal tender was authori- tatively passed upon, and finall3- sustained, by the federal Supreme Court. The decision settled the law as to that act, and was binding upon the President as much as upon an}- private citizen. But should any great emergency hereafter seem to present to Congress a sufficient reason for passing a similar act, what possible reason could exist for the President withholding his approval which would be more forcible than that in his opinion the Constitution did not warrant it? He has deferred to the judgment of the court as to what the law was ; must he now defer to it in deciding what the law shall be? The court itself, in a new case, might overrule its own decision, and it would be the plain dut)' of the court to do so if the justices should reach the conclusion that so great an error had been com- mitted as the sanction of a violation of the charter of government. But the President overrules no decision in such a case : he simply acts upon his own judgment as a legislator. And it can never be disrespectful to the judi- ciarj' that any branch of the legislature differs with it in opinion when acting within the sphere of its iDOwers. 170 CONSTITDTIONAL LAW. CHAPTER VIII. THE GOVERNMENT OF THE TERRITORIES. The Constitution. — By Article IV. of the Constitution it is declared that Congress shall have power " to make all needful rules and regulations respecting the territorj- or other property belonging to the United States." ^ The Purposes. — Rules and regulations for the territory of the United States may be of two kinds : JFirst, those having regard to it as property merely, and intended to guard and improve it as such, and perhaps to prepare it for sale and sell it ; ^ and, second, those which concern the government of the people who may reside within the terri- tory before it is formed into States. This provision of the Constitution differs from most others contained in that instrument in this : that by it the States concede nothing, at least so far as the territory outside their own limits is concerned, since over this they had no power whatever to make rules themselves. Indeed, as to such territory the provision would be needless, for the United States as a sovereignty would have inherent power to govern at dis- cretion such territory as it possessed beyond state limits. The States could not restrict the right, and no restrictions could come from any other authority. Control by Congress. — The peculiar wording of the provision has led some persons to suppose that it was intended Congress should exercise in respect to the ter- ritory the rights only of a proprietor of property, and 1 Const., Art. IV. § 3, cl. 2. 2 United States o. Gratiot, 14 Pet. 526. GOVERNMENT OF THE TERKITORIES. 171 that the people of the Territories were to be left at liberty to institute governments for themselves. It is no doubt most consistent with the general theory of republican in- stitutions that the people everywhere should be allowed self-government ; but it has never been deemed a matter of right that a local community should be suffered to lay the foundation of institutions, and erect a structure of gov- ernment thereon, without tlie guidance and restraint of a superior authoritj'. Even in the older States, where society is most homogeneous and has fewest of the elements of disquiet and disorder, the State reserves to itself the riglit to shape municipal institutions ; and towns and cities are only formed under its direction, and according to the rules and within the limits the State prescribes. With still less reason could the settlers in new territories be suffered to exercise sovereign powers. The practice of the govern- ment, originating before the adoption of the Constitu- tion, has been for Congress to establish governments for the Territories ; and whether the jurisdiction over the district has been acquired by grant from the States, or by treaty with a foreign power, Congress has unquestion- ably full power to govern it, and the people, except as Congress shall provide therefor, are not of right entitled to participate in political authoritj', until the territory becomes a State.^ Meantime the}' are in a condition of temporary pupilage and dependence ; and while Congress will be expected to recognize the principle of self-gov- ernment to such extent as may seem wise, its discretion alone can constitute the measure by which the partici- pation of the people can be determined. If territory' is 1 American Ins. Co. v. Canter, 1 Pet. 511, 542; Territory v. Lee, 2 Montana, 124 ; Reynolds y. People, 1 Colorado, 179; Carpenter u. Rogers, 1 Montana, 90; National Bank v. Yankton, 101 U. S. 129; Mormon Church v. United States. 136 U. S. 1. In this last case, in discussing the plenary power of Congress over the Territories, it is suggested that it would doubtless be impliedly subject to those funda- mental limitations in favor of personal rights which are formulated in the Constitution and Amendments. 172 CONSTITUTIONAL LAW. acquired from a foreign country with a de facto govern- ment in full operation, this government will continue with the presumed consent of the people, until Congress shall provide for them a territorial government. "The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact, that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessit}- of submitting to the dominion of the strongest." The limitation to the power of this de facto government is, that it shall " exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land." ^ , Forms of Territorial Governments. — Two general forms of territorial government have from time to time been established by Congress for different Territories. The first of these is a government with an executive and judges appointed by the President with the advice and consent»of the Senate, who together constitute the legislature for the Territory. The second is a government in which, while the executive and judiciary will be of national appointment, the legislature is composed of representatives chosen by the people of the Territory. Some of the Territories have had both forms, and also between the two a third, which was a modification of both. By the Ordinance of 1787, for the government of the Northwest Territorj-, the governor and judges, or a majorit}' of them, were empowered to adopt for the Territor3' such laws of the original States, criminal and civil, as might be necessary and best suited to the circumstances of the district, and report them to Congress from time to time, which laws were to be in force until the organization of the General Assembl}- therein, unless disapproved by Congress ; but afterwards the legis- 1 Cross V. Harrison, 16 How. 164, 184. GOVERNMENT OE THE TEKEITORIES. 173 lature was to Lave authorit}' to alter them as it should think fit. And the people were to have the right to elect representatives to a General Assemblj' so soon as there should be five thousand free male inhabitants of full age in the Territory. The legislative power of the governor and judges, it is seen, was limited to a selection of Iaws from the States ; but when a territorial legislature has been provided for, the authority conferred upon it has ex- tended to all rightful subjects of legislation,^ and it migiit therefore grant charters of incorporation,^ endow institu- tions of learning,' provide for the exercise of the right of eminent domain,^ allow illegitimate children to inherit,* grant a legislative divorce," and so on. Congress may at any time control the legislation of the Territories, or fegis- late independently for them,' but the territorial laws not in conflict with the Constitution or any act of Congress would stand, unless disapproved.' The absence, however, of action by Congress is not to be construed as a recognition of the power of the territorial legislature to pass acts in' conflict with the congressional act under which the terri- tory was organized." The Public Domain. — Of that portion of the Territo- 1 Miners' Bank v. Iowa, 12 How. 1 ; Vincennes University v. In- diana, 14 How. 268 ; Wisconsin v. Doty, 1 Pinney (Wis.), 396 ; State u. Young, .S Kans. 445. 2 Miners' Bank v. Iowa, 12 How, 1. 8 Vincennes University v. Indiana, 14 How. 268, 273. * Swan V. Williams, 2 Mich. 427 ; Carson Biver, &c. Co. u. Barrett, 2 Nev. 249 ; Lewis Co. r. Hayes, 1 Wash. Ter. 128. 6 Cope V. Cope, 137 U. S. 682. e Maynard v. Hill, 125 U. S. 190. Or empower a probate court to grant divorces. Whitmore v. Harden, 3 Utah, 121. 7 Reynolds v. United States, 98 U. S. 145, As by disfranchising polygamists. Murphy v. Ramsey, 114 U. S. 15. 8 Clinton v. Englebrecht, 13 Wall. 434. This case reviews and explains the territorial legislation. And see Ferris v. Higley, 20 Wall. 375; Moore v. Koubly, 1 Idaho, 55; Smith v. Odell, 1 Pinney (Wis), 449 ; Morton v. Sharkey, McCahon (Kans.), 113. » Clayton v. Utah, 132 U. S. 632. 174 CONSTITUTIONAL LAW. ries which belongs to the public domain, and of which, therefore, the United States has proprietary title, Congress provides for the disposition and sale, under such regula- tions as are deemed important. In respect to this, the government occupies the two positions of proprietor and ■of sovereign of the country, and may deal with it at dis- cretion, and pass title to it in any manner it may choose. The proviso that " nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State," had in view claims, some of which were recognized and some disputed, but all of which were subsequently adjusted amicabl3^ The "other property belonging to the United States" of which Congress is empowered to dispose, might be any which was then, or in the course of time might become, their propert}', whether acquired as a government, or as an individual or corporation might acquire it. Judiciary of the Territories. — While the territorial "condition remains, the courts of the Territory exercise the customary jurisdiction of both state and federal courts under congressional and territorial legislation.^ Their powers cease as soon as the Territory is admitted to the Union, and judicial acts afterwards performed are void for want of jurisdiction.^ Congress will provide, bj- appropri- ate legislation, for the transfer of cases begun in the terri- torial courts to the proper courts for further proceedings.' 1 American Ins. Co. v. Canter, 1 Pet. 511. 2 Benner v. Porter, 9 How. 235 ; Forsyth v. United States, 9 How. 571 ; United States v. Simpson, 9 How. 578. ^ Express Co. «. Kountze, 8 Wall. 342. The judges of territorial courts are not judges of " courts of the United States." The whole matter of the formation of those courts and the tenure of the judges thereof is left with Congress. It may, therefore, empower the Presi- dent at his discretion to suspend territorial judges before the end of their terms of office. McAllister w. United States, 11 Sup. Ct. Rep' 949. ADMISSION OF NEW STATES. 175 CHAPTER IS. THE ADMISSION OF NEW STATES. Original States. — The Constitution provided that the ratification by the conventions of nine iStates should be sufficient for the establisBment of the Constitution between the States so ratif3-ing the same ; ^ but it contemplated the accession of all the thirteen States, if all should ratify, even though some might delay until after the government should have been put into operation. New States. — The Constitution also provided that new States may be admitted hy Congress into the Union ; ^ but whether they should be formed of territory at that time belonging to the States, or from territory that might there- after be acquired, or taken in as existing States previously independent, was not expresslj- determined bj- that in- strument. Bj' the Ordinance of 1787, however, which the Constitution left in force,' it had been agreed that States not exceeding five might be formed from the Northwest Territory, and received into the Union ; and it may be assumed as unquestionable that the constitutional pro- vision contemplated that the territory then under the dominion of the United States, but not within the limits of any one of them, was in due time to be formed and organized into States and admitted into the Union, as has since in manj' cases been done. Indeed, it could never have been understood that any territory which by pur- chase, cession, or conquest should at uny time come under 1 Const., Art. VII. 2 Const., Art. IV. § 3. = Spooner v. McConnell, 1 McLean, 337. 176 CONSTITUTIONAL LAW. the control of the United States, should permanently be held in a territorial condition, and the new States, which have been formed of territory acquired b}- treaty, must be supposed to have been received into the Union in strict compliance with the Constitution.^ So must Texas, which as an independent State was annexed to the Union. It is true that nothing in the express terms of the Con- stitution indicates that it was contemplated, by those who framed and adopted it, that the bounds of the Union should be extended bj' the acquisition of territory, either bj' purchase or annexation. Nevertheless, the power in any sovereignt}' to acquire territory is indisputable, and of right pertains to the power to declare war and form treaties. It therefore belongs to the United States, and is denied to the States, which are forbidden to enter into treaties.^ And when territory is acquired, the right to suffer States to be formed therefrom, and to receive them into the Union, must follow of course, not only because the Constitution confers the power to admit new States without restriction, but also because it would be incon- sistent with institutions founded on the fundamental idea of self-government that the federal government should retain territory under its own imperial rule, and deny the people the customarj' local institutions. The power to admit to the Union existing States, as in the case of Texas, may be questioned with more reason ; ^ but the dealings of one sovereignty with another must always be under subjection to the great law of necessitj-, and what the requirements of that law may be in any particular case only the sovereigntj' itself can judge when the emer- 1 Compare Scott v. Sandford, 19 How. 39.3, 447. 2 Const., Art. I. § 10. 8 The debates which took place in Congress while the subject ot the annexation of Texas was unJer discussion, and the contempora- neous political discussions elsewhere, ^ive the opposing views on tliis subject. Most of the discussions, however, involved policy rather than constitutional power. ADMISSION OF NEW STATES. 177 gency is upon it. If, therefore, an independent State is received into the Union, it must be supposed to have been accepted on sufficient and conclusive reasons. Preliminary Steps. — The Constitution does not point out what steps shall be taken for the admission of a State to the Union, but, the power having been conferred upon Congress without limitation, it is left to the discretion of that body to determine the circumstances under which the admission shall be allowed, and the steps that shall be taken to obtain it. Nevertheless, certain requisities are necessarily implied. There must be a State to admit ) and a State must have a government and laws ; and the government must be republican in form because States with such a government can alone be members of the Union. But how the State shall come into existence ; who shall be its electors and form its government and establish its laws i how many of the electors there shall be ; what shall be the extent of territor)' incorporated within the limits of their State ; and whether any constitution the people may have formed shall be received as satisfactory or shall be required to be amended, — these and many other questions must be determined under the discretion- ary power conferred upon Congress. States have been admitted, — (1) where the people of a Territory of suitable size have, either by spontaneous action or in accordance with some territorial statute or executive proclamation, formed a constitution and elected officers to administer it, and presented the constitution to Congress and applied for admission under it ; (2) where Congress has first passed an enabling act, authorizing the people to form a constitution, prescribing rules of suffrage and other conditions, and providing for the admission of the State when the constitution shall be adopted and the conditions complied with ; (3) when a constitution, formed with or without previous congressional authority, has been presented to Congress, and that body has ac- cepted it conditionally, requiring the consent of the people, 12 178 CONSTITUTIOKAL LAW. evidenced in some form indicated, to some condition precedent to the admission, such as the consent to yield some portion of the territory claimed, or some rule of suffrage established by the state constitution, &c. Besides these there have been other peculiarities of admission, but this statement is sufficient to show that the control of Congress is exercised according to the circumstances. In one instance, admission has been refused, though the pop- ulation was ample, because of objection to local laws and usages.' With full discretionary power over the admission of States, it must be expected that the action of Congress will not always be governed by uniform sentiments and uniform rules, and it has at times confessedly been con- trolled by party or sectional considerations. The Consti- tution neither does nor can establish effectual safeguards against the control of such influences. Seceded States. — Those States whose people undertook to sever them from the Union, under claim of a right to secede, were nevertheless not released from their constitu- tional relations.'^ Until the rebellion was overthrown their position was peculiar ; they had disloyal governments exercising all the ordinary powers of sovereignty, with courts administering justice between man and man, and legislatures passing laws of general, but also of purely local concern. When resistance to the federal government ceased, regard to the best interests of all concerned re- quired that such governmental acts as had no connection with the disloyal resistance to government, and upon the basis of which the people had acted and had acquired rights, should be suffered to remain undisturbed.' But all 1 The case of Utah. The facts concerning the admission of States to the Union are all collected, and the principles discussed, in Jame- son on Constitutional Conventions. 2 White V Cannon, 6 Wall. 443; Texas v. White, 7 Wall. 700j Shortridge v. Macon, Chase's Dec. 136 ; Keith v. Clark, 97 U S. 454. 2 Keppel 6. Railroad Co., Chasers-Dec. 167 , Cook v. Oliver, 1 ADMISSION OF NEW STATES. 179 acts done in furtherance of the rebellion were absolutely void, and private rights could not be built up under, or in reliance upon them.' To restore the States to their former place in the Union, no new admission was required, but they were restored to their full constitutional powers as rightful members of the Union, when the fact was rec- ognized by the political departments of the government, and their senators and representatives were admitted to seats in Congress.'* States from other States. — The Constitution further provides that "no new State shall be formed or erected within the jurisdiction of any other State, nor anj- State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress." ^ The political departments of the government practically decided in the case of Virginia that, when a State goes into rebel- lion, any part of it, however small, which remains loyal, may with the consent of Congress maintain a loyal state government for the whole State, and that this government may give consent to the erection of a new State within the ^ limits of the old, and the legislatures of the old and new States may agree upon conditions. It is competent in such a case to make the annexing of a certain part of the old State to the new depend upon a favorable vote of the electors within such territory ; and when that is done, and the governor is given power to certify the result, his cer- tificate that the vote was favorable, especially if accepted and acted, upon by the new State by the extension of Woods, 437; Hatch v. Burroughs, 1 Woods, 439; Thorington o. Smith, 8 Wall. 1 , Horn v. Lockhart, 17 Wall. 570 , Sprott v. United States, 20 Wall. 459 ; Ford v. Surget, 97 U. S. 594 1 Hanauer v. Doane, 12 Wall. 342 ; Hanauer v. Woodnrff, 15 WalL 439 ; Sprott v. United States, 20 Wall. 459, Ford u. Surget, 97 U. S, 594. 2 Texas v. White, 7 Wall, 700 ; Keith u. Clark, 97 U. S. 454. N « Const., Art. IV. § 3, cl. 1. 180 CONSTITUTIONAL LAW. jurisdiction over the territory, is conclusive.^ It is not necessary that the consent of Congress to the formation of the new State should be given in express terms, but it may be implied from its legislation recognizing such State.2 Territorial Laws. — A State coming into the Union brings with it the pre-existing law, except so far as ex- pressly or by necessary implication it is changed by the Constitution, or by the passage from a territorial to a state ■ condition. All those laws which relate to the territorial condition and circumstances exclusively become of neces- sity inoperative. . Conditions to Admission. — In several instances Con- gress has prescribed conditions to the admission of States to the Union. When Missouri applied for admission, the constitution which was presented contained a clause re- quiring the legislature to pass such laws as might be found necessary " to prevent free negroes and mulattoes from coming to and settling in this State, under any pretext whatsoever." The State was received into the Union on condition that a solemn pledge should be given by its legis- lature that the constitution should never be construed to authorize the passage of any act, and that no act should be passed, by which any of the citizens of other States should be excluded from the enjoyment of any of the privi- leges and immunities to which they are entitled under the Constitution of the United States. Presumably this would cover the privilege of colored citizens of other States to emigrate into Missouri, if they should see flt.^ The State of Michigan was admitted to the Union upon the express condition that she should surrender to the State ' Virginia v. West Virginia, 11 Wall. 89 ; Kanawha Coal Co. v Kanawha, &c. Coal Co., 7 Blatch. 391. ^Virginia v. West Virginia, 11 Wall. 39. There is a provision in the joint resolution for the annexation of Texas for the formation of four other States from its territory, with the consent of the State J but no action to that end was ever taken. ' Benton's Thirty Years' View, ch. 2. ADMISSION OF NEW STATES. 181 of Ohio certain territor}' which had been the subject of dis- pute between them, and her assent thereto was required to be given by a convention of delegates chosen by the people for the sole purpose of giving such assent.^ The State of Arkansas was admitted to representation in Congress, June 22, 1868, on the fundamental condi- tion " that the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote, who are entitled to vote by the constitution [then pre- sented by the State], except as a punishment for such crimes as are now felonies at common iaw, whereof thej^ shall have been duly convicted, under laws equally appli- cable to all the inhabitants of said State." The purpose was to protect colored citizens in the enjoj-ment of the elective franchise. The States of North Carolina, South Carolina, Louisiana, Alabama, and Florida were admitted to representation, the same month, on a similar condition. On the State of Georgia the same condition was imposed ; also the further conditions, that the fourteenth amendment to the federal Constitution should be ratified, that certain, provisions in her own constitution, not important to be here repeated, should be "null and void," and that the General Assembly of the State should by solemn public act declare the assent of the State to the condition. The State of Virginia was admitted to representation in Con- gress, January 28, 1870, on the same condition with the others mentioned, in respect to suffrage, and on the fur- ther conditions, " that it shall never be lawful for the said State to deprive any citizen of the United States, on account of his race, color, or previous condition of servi- tude, of the right to hold office under the constitution and laws of said State, or upon any such ground to require of him any other qualification for office than such as are re- quired of all other citizens ; " and " that the constitution 1 Campbell's Hist, of Mich., ch. 14. 182 CONSTITUTIONAL LAW. of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitu- tion of said State." The States of Mississippi and Texas were admitted to representation in the following month, on the like conditions to those imposed on Virginia. The State of Nebraska was admitted to the Union in 1868, with a proviso in the act of admission that it should not take effect "except upon the fundamental condition that within the State of Nebraska there shall be no denial of the elective franchise, or of any other right, to any per- son by reason of race or color, except Indians not taxed, and upon the further fundamental condition that the legis- lature of said State, by a solemn public act, shall declare the assent of said State to the said fundamental condition, and shall transmit to the President of the United States an authentic copy of said act. Upon receipt whereof the President by proclamation shall forthwith announce the fact ; whereupon said fundamental condition shall be held as a part of the organic law of the State ; and thereupon, and without any further proceeding on the part of Con- gress, the admission of said State into the Union shall be considered as complete." The proclamation of the President announcing the passage of such an act, and the receipt of an authentic copy thereof, was issued on March 1, 1868.1 Other conditions have been imposed ; and a common requirement on the admission of a State is, that it shall waive all right to impose taxes on the lands of the United States. Some of these conditions are beyond question irrevocable bj- the States. Such, for example, are those last mentioned, which are irrevocable because they con- stitute articles of compact between the State and the nation, which would render the taxation void. Such also would be a condition respecting boundary, as in the case 1 See Butler v. People, 2 Nebraska, 198. ADMISSION OF NEW STATES. 183 of Michigan. The condition in the case of Missouri merely ' required the State to observe one of the stipulations in the federal Constitution, which was as much obligatory upon the State without the condition as with it. Whether the legislature can give binding effect to a condition which changes the constitution established by the people, is at least doubtful. But when a State comes into the Union, it is received on an equal footing .with the original States, and with all their rights and privileges.^ It must there- fore have the same power to amend its constitution which is possessed by the other States, and a condition which should undertake to limit its power in this regard must, in a legal sense, be wholly inoperative. It is to be observed of those which have been imposed, and which would limit the power of amendment, that thej' have since been ren- dered unimportant by amendments to the federal Consti- tution. ' Pollard's Lessee u. Hagan, 3 How. 212 ; Strader v. Graham, 10 How. 82 ; Weber v. Harbor Commissioners, 18 Wall. 67 ; Willamette Bridge Co. v. Hatch, 125 U. S. 1. 184 CONSTITUTIONAL LAW. CHAPTER X. CONSTITUTIONAL RULES OF STATE COMITY. Conflict of Lwws. — It often happens that a right as- serted or privilege claimed in one State will depend for its validity upon something done by the parties concerned, or by one of them, in some other State, whereby the right or privilege became initiate, or perhaps perfected. In such case the laws of both States are to be considered in order to determine how they respectively affect the claims made. In these cases the questions which arise are questions of interstate comity, and, except as the provisions of the federal constitution affect and modify them, they are to be governed by the rules of private international law, as they would be if the two States had been to each other foreign nations. The rules of private international law are taken notice of and enforced bj' the courts just as are the general prin- ciples of the common law ; and the federal courts, like those of the States, when administering justice within a State between suitors entitled to bring suits therein, will recog- nize and be governed by them. But, like other rules of law, the}' are subject to be varied and controlled by state legislation, and there may be and often is a general state policy upon some particular subject before which the rules of private international law which are opposed to it must give waj'. A familiar instance of these rules is that which concerns the title and transmission of personal property. The doc- trine universally accepted is that chattels have no situs. CONSTITUTIONAL RULES OP STATE COMITY. 185 but in contemplation of law adhere to the person of the owner, wherever he may be.'' If actually in one State while the owner has his domicile in another, the latter may dispose of them according to the law of the domicile, and his contracts or conveyances which are suflflcient under the law there will be held sufflcient ever^'where.^ So his will, valid according to the laws of his domicile, will be sufflcient to dispose of them, and, if he dies intestate, they will be distributed as they would be if actually with him in fact, as they were in contemplation of law.' But while this case illustrates the general law, it also enables us to appre- ciate and Understand some important exceptions. One of these is that no sovereigntj- is bound to recognize and give effect to a transfer of property which at the time is within its jurisdiction, unless all just claims which it maj' have, or which an}' of its citizens maj- have, in respect to such prop- erty, are first satisfied. Therefore, in a case of intestacj', if the State where the property is has unsatisfied claims upon it for taxes, or if an}- of its citizens have demands against the estate, it ma}- justly provide that all such claims and demands shall be satisfied before the property will he handed over to an administrator for distribution at the 1 Harvey v. Richards, 1 Mason, 381 ; Oakey v. Bennett, 11 How. 3.3; Story, Confl. L., §§ 376-382. 2 The State wliere the chattels are may, however, exercise such control over them as to invalidate transfers of them made without conformity to its laws ; for example, its laws as to liens or the record- ing of chattel mortgages. Green v. "Van Buskirk, 7 Wall. 139 ; Wal- worth V. Harris, 129 U. S. 355; Ames Iron Works v. Warren, 76 Ind. 512. 3 Sill V. Worswick, 1 H. Black. 665 ; Bank of Augusta v. Earle, 13 Pet. 519; Ennis v. Smith, 14 How. 400; Despard v. Churchill, 53 N. Y. 192 ; Fuller v. Steiglitz, 27 Oliio St. 355 ; Cade v. Davis, 96 N. C. 139; Estate of Apple, 66 Oal. 432; 4 Kent, 513; Whart, Confl. L., § 585; Story, Confl. L., §464. The validity of charitable devises as against the heirs of the testator is determined by the law of the place where the land is; the validity of charitable bequests as against the next of kin, by the law of the testator's domicile. Jones v. Haber- sham, 107 U. S. 174. 186 CONSTITUTIONAL LAW. forum of the domicile.'' Another is that a transfer actu- ally made abroad, in which both parties contemplate some use of the property in contravention of the laws of the State where it has its situs, and participate in a purpose to violate those laws, will not be recognized and supported in the last-mentioned State.^ In neither of these cases can there be any ground of interstate comity that could require the one sovereignty to surrender its own claims or those of its citizens, in favor of claims abroad which could be no more substantial or equitable, or that could call upon it to waive its local laws in favor of those who might choose a foreign territory as the theatre of their operations, for the express purpose of evading and defeating them. Nor is a State bound to enforce a wager contract made in another State and valid there, if regarded as void under its own view of public policy.' But the general rule is, that, when made m good faith, the validity and interpretation of contracts are to be governed bj' the law of the State where they are made, unless they are to be performed in another State, and the parties clearly intended them to be governed by the law of that State, in which case they will be governed by the law of the State of performance.* And under these ' Swearingen v. Morris, 14 Ohio St. 424 ; Grattan u. Appleton, 3 Story, 755; Hill v. Townsend, 24 Tex. 575. 2 Waymell v. Reed, 5 T. R. 599; Armstrong v. Toler, 11 Wheat. 258; Webster v. Munger, 8 Gray (Mass.), 584 ; Smith v. Godfrey, 28 N. H. 379 ; Wilson v. Stratton, 47 Me. 120 , Jones v. Surprise, 64 N. H. 243; Rorer, Inter-State Law, 198 ; Story, Confl, L., § 246 et seq. As to what action is not within this rule, see Feineraan v. Sachs, 33 Kans. 621. In Cliambers v. Church, 14 R. I. 398, the court refused to en- force a contract to be executed in another State which violated the laws of tliat State. » Flagg V. Baldwin, 38 N. J. Eq. 219. ■• Bank of United States v. Donnally, 8 Pet 361 ; Andrews v. Pond, 13 Pet. 65 ; De Wolf d. Johnson, 10 Wheat. 367 ; Pritchard v. Norton, 106 U. S. 124 ; Liverpool Nav. Co. v. Phenix Ins. Co., 129 U S. S97j Equitable Life Ass. Soc. v. Pettus, 11 Sup. Ct. Rep. 822; Wooley w. Lyon, 117 111. 244 ; Shoe & L. Bank v. Wood, 142 Mass. 563 , Story, Confl L., § 242. CONSTITUTIONAL RULES OF STATE COMITY. 187 rules all States will furnish suitable remedies for the en- forcement of contracts within their own limits, as it may become necessary. The remedies in any case, however, will be such only as are provided by its own laws.^ The cases of marriage and divorce raise frequent ques- tions growing out of differences in the law where a mar- riage or a divorce may take place, and the law where the parties may afterwards be found domiciled, The rule of law with respect to marriages is, that, if they are valid where entered into, thej' are valid everywhere ; ^ but this is subject to exceptions in the case of polygamous marriages, and marriages which would be incestuous according to the laws of nature as commonly understood, by which we must perhaps understand only marriages between brothers and sisters, and marriages in the direct lineal line of consan- guinity.' The importance of this relation is so great, and the mischiefs that would flow from its being held invalid where the parties have intended that it should exist, are so serious, that marriages are sustained even where par- ties, who are not allowed to marry by the laws of the State of their domicile, have gone abroad and been mar- ried, subsequently returning to reside.* In respect to divorce a like rule prevails, that a divorce valid where granted is valid everywhere ; but every State will pro- tect any of its own citizens against being defrauded by a divorce obtained abroad by fraud, or granted without jurisdiction.' 1 Bank of United States v. Donnally, 8 Pet. 361 ; Wilcox v. Hunt, 1.3 Pet. 378; Scudder v. National Bank, 91 U. S. 406, 413; Story, Confl. L., § 556. 2 Medway v. Needliam, 16 Mass. 157 ; Ponsford v. Johnson, 2 Blatch. 51 ; Whart., Confl. L., § 127. 3 Sutton V. Warren, 10 Met. (Mass.) 451 ; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343. * Sutton V. Warren, 10 Met. (Mass.) 451 ; State v. Ross, 76 N. C. 242; Commonwealth v. Lane, 113 Mass. 458; Van Voorhis o. Brint- nall, 86 N. Y. 18 ; Bishop, Mar. and Div. ch. 21. 6 Rorer, Inter-State Law, 181, 182. See Cooley, Const. Lini., 6th ed., 494, and cases. 188 CONSTITUTIONAL LAW. Penal Actions. — In some cases rights of action are given by a sovereignty which others are not expected to recognize, and which therefore can only be enforced within the territorial limits of the sovereignty creating or giving the right. Of these is the right to recover a statutory penalty. Bemg given by statute, this is recoverable only where the statute is law.' So where by statute an action is given against one who, by wrongful act, neglect, or de- fault, shall cause the death of another, a recovery in such a case not being allowed at the common law, the courts of other states and countries will not recognize and en- force the right.^ Local and Transitory Actions. — There are also some cases of common-law actions in which the remedy was always held to be local, and which consequently must be brought within the jurisdiction where the mjury com- plained of was committed. From the necessity of the case, actions for the recovery of lands must belong to this class, since process to enforce the right when it should be established could be served only where the land was sit- uated. But all actions for injuries to real estate are in the same category, and, even when they may be instituted in the federal courts, they must be brought in the district , within which the land lies. ^ On the other hand, all actions 1 First National Bank v. Price, 3.3 Md. 487 ; Barnes v. Whittaker, 22 111. 606 ; Graham v. Monseigh, 22 Vt. 543 ; Richardson v. Burling- ton, 33 N. J. 190. See Wisconsin <;. Pelican Ins. Co., 127 U. S. 265, referreil to ante, p. 122. 2 Selma, &c R. R. Co. c. Lacy, 43 Ga. 461 ; Whitford v Panama R. R. Co., 23 N. Y. 465; McCarthy i\ Railroad Co., 18 Kaiis. 16. Richardson v. Railroad Co., 98 Mass. 85 ; Davis v. Railroad Or , 143 Mass. 301 ; Ash v. Baltimore, &c. R. R. Co.. 72 Md. 144. But the present tendency seems to be against this rule, and many courts aliow recovery to be had upon foreign statutes, if they are substantially similar to their own. See Dennick v. Railroad Co., 103 U S II, Bruce u. Railroad Co , 83 Ky. 174, and cases collected in Cooley Dn Torts, 2ded., pp. 311-313. 5 Livingston v. Jefferson, 1 Brock. 203 : McKenna u Fiske, 1 How. 241 ; Rundle u. Del. & Rar Canal, 1 Wall. C. C. 275 , Worster o. Lake CONSTITUTIONAL RULES OP STATE COMITY. 189 for merely personal injuries, or for injuries to personal estate, and all actions upon contract, may be brought wherever personal service may be obtained,' and it is immaterial to the remedy in what jurisdiction the cause of action arose, though the local law must be looked to in order to determine the validity and construction of the contract, and the liabilitj' of the party sued in respect to that which is complained of. In cases of contract the remedies which other States give are not usually limited to those in which a personal service is obtained, but attach- ment and garnishment process are allowed to reach prop- erty and debts where personal service cannot be had ; though in cases of tort process for attaching property and demands when the defendant himself cannot be found is not commonly allowed. Corporations. — In strict law the corporations chartered by one sovereignty have no authority to exercise their franchises in another, except as the latter shall permit ; ^ but by comity they are suffered to do so, where it would not contravene any principle ot local policy, or any gen- eral statute, but subject to such restrictions as the State may see fit to impose.' The power to impose restrictions, however, must be subordinate to the Constitution and laws of the United States. A State could not, for example, interpose a restriction that would in effect constitute a Co , 25 N. H. 525. If brought elsewhere, the court entertains them by comity only. Morris o. Miss. Pac. Ry. Co., 14 S. W. Kep. 228 (Tex.). ' A court of general jurisdiction has jurisdiction of an action brought between non-residents by consent, if the subject-matter, for example, a contract, is withm its cognizance. Cofrode v. Circuit Judge, 79 Mich. 332. '■' Lafayette Ins. Co. v. French, 18 How. 404 ; Bank of Augusta v. Earle, 13 Pet. 519 ; Paul o. Virginia, 8 Wall. 168 , Ducat v Chicago, 10 Wall. 410 ; Whart., Confl L , § 48. » Paul u. Virginia, 8 Wall. 168; Ducat v Chicago, 10 Wall. 410; Re Comstock, 3 Sawyer, 218 ; Moses o. State, 65 Miss 56 ; 2 Kent, 284, 285. But a court will not, in general, take jurisdiction of the 190 CONSTITUTIONAL LAW. regulation of interstate commerce,' or tliat would restrain tlie corporation from resorting to the federal jurisdiction in cases witliin the laws of Congress.'' But no corpora- tion can of right hold real property in a State except by permission of the State ; and though the permission will be implied wherever there appears no state statute or policy to the contrary/ yet, as against an express inhibi- tion to give lands by will to any but natural persons, not even the United States can receive a valid devise.^ The Constitution. — There are some cases which it was deemed wise, in framing the Constitution, not to leave to comity merely, because they concerned so intimately the relations of the people of the several States to each other that any differences in legislation in respect to them, or any divergencj' in judicial decision, might lead to infinite contentions and mischiefs. One of these concerned the use in the States respectively of the statutes, records, and judicial proceedings of other States, whether as matters of evidence or as muniments of title. The common law had rules under which these might be proved, but these rules were subject to legislative modification at discretion, and it was not improbable that, if the States were left to them- selves to establish independent regulations, those made by them would not onlj' be wanting in uniformity, but they would tend to breed discord, instead of preserving frater- nal feeling, among the States. It is easy to understand purely internal affairs of a foreign corporation doing business within the State, even at the suit of a resident stocltholder. North State M. Co. c. Field, 64 Md. 151. 1 Pgnsacola Tel. Co. a. West Un. Tel. Co., 96 U. S. 1. 2 Insurance Co. v. Morse, 20 Wall. 445 j Barron v. Burnside, 121 U. S 186. " Runyan u. Coster, 14 Pet. 122 ; Thompson v. Waters, 25 Mich. 214. If such corporation is forbidden to hold land, only the State can raise the question of the validity of title acquired in contraven- tion of its law Barnes Suddard, 117 111. 237 ; Carlow u. Aultman, 44 N. W. Rep. 873 (Neb). « United States i- Fox, 94 U S 315. CONSTITUTIONAL RULES OF STATE COMITY. 191 how a State, from temporary prejudices or adverse inter- ests, or even from more reprehensible reasons, might legis- late to prevent the reception in evidence of the records, and especially the judicial proceedings, of other States. It is conceivable, for example, that, in a time of great financial distress in a new State, legislation might be obtained to protect people emigrating to and settling within the State even as against the just judgments ren- dered against them in the States from which thej^ came, and still remaining unsatisfied. This would not onlj' be unjust in itself and disgraceful to the State, but it would almost certainly lead to retaliatory legislation. State Acts, Records, dtc. — Among the preventive measures of the Constitution is the provision that " Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may bj' general laws prescribe the man- ner in which such acts, records, and proceedings shall be proved, and the effect thereof" ' By this provision a rule of comity becomes a rule of constitutional obligation. It also becomes a uniform rule, and the common authority is empowered to pass laws whereby the courts may govern their action in receiving or rejecting the evidences presented to them of the pubhc acts, records, and judicial proceedings of other States. Nor is this of more importance to the States as such, than to those whose individual interests may be involved or affected ; and indeed the interests involved are usually private and individual, rather than public. The full faith and credit to which the public acts, records, and proceedings are entitled in other States is the same faith and credit to which they are entitled in the State whose acts, records, and judicial proceedings they are.^ When, therefore, suit is brought in one State upon i Const , Art. IV § 1. 2 Armstrong v. Carson, 2 Dall. 302 ; Mills v. Duryea, 7 Cranch, 481 ; Hampton v. McConnell, 3 Wheat. 234 ; Field .;. Gibbs, Pet. C. C 192 CONSTITUTIONAL LAW. a judgment rendered by a court of another State, and it appears that by the law of the last-mentioned State it is conclusive upon the defendant, it must be held equally conclusive in the court in which suit upon it is brought.^ Whatever pleas would be good to it in the State where it was pronounced, and none others, might be pleaded to it in any other court within the United States.'' But the judgment can have no greater or, other force abroad than at home, and therefore it is always compe- tent to show that it is invalid for want of jurisdiction in the court rendering it.^ To preclude inquirj- into it in another State, the judgment must not only be rendered by a court having jurisdiction of the subject-matter and the parties, but, if the defendant does not appear at the trial, it must be responsive to the pleadings.^ So anything that goes in release or discharge of the judgment may be shown ; ^ and the statute of limitations of the State where suit is brought will be available, if the case comes within 155 ; Bryant v. Hunters, 3 Wash. C. C- 48 ; Nations v. Johnson, 24 How. 195, 20.3. 1 Mills V. Duryea, 7 Cranch, 481. If a judgment, when entered on a joint debt after personal service on only one debtor, is good where rendered against the debtor served, it is good in another State, though there such service would not sustain a judgment. Renaud v. Abbott, 116 U. S. 277 ; Hanley «. Donoghue, 116 U. S. 1. 2 Hampton v. McConnell, 3 Wheat. 234 ; Green v Van Buskirk, 7 Wall. 139. Judgments in one State when proved in another differ from judgments of another country in this alone, that they are not impeachable for fraud nor open to question upon the merits. Hanley V. Donoghue, 116 U. S. 1. / 3 Harris v Hardeman, 14/How. '334; Cheever «. Wilson, 9 Wall. 108; Galpin v. Page, 18 Wall. 350; Thompson v. Whitman, 18 Wall. 457 ; Grover & B. M. Co. ... Radeliflfe, 1.37 U. S. 287 ; Arnott v. Webb, 1 Dillon, 362, Whart., Confl L.,_§§ 811, 819. * Reynolds v. Stockton, 11 Sup. Ct. Rep. 773. A court may pass upon a question possibly, but not necessarily, involved in a consent decree entered^ ,^ the court of another State. Texas & P. Ry. Co. V. Sou. Pac. Ry. Co., 137 U S. 48. 6 McElmoyle v. Petqrs, 13 Pet. 312; D'Arey v. Ketchum, 11 How. 165. CONSTITUTIONAL RULES OF STATE COMITY. 193 it.'' But it is not competent for anj- State to pass an act of limitations whicli would in effect nuUif}' judgments ren- dered in other States, and allow no remedj- upon them whatever. Reasonable opportunity to enforce a demand must alwaj's be afforded.'' The grant of letters of administration is not such a " proceeding " as to give authority to an executor to sue as such in another State, nor fs the proof of claim against an ancillary administrator a judgment on which the claim- ant can sue the principal administrator in the State where he is appointed.' And this last principle applies to the case of principal and ancillary receivers.^ The provisions of the clause under consideration are not infringed if a court enjoins a citizen of the State from suing in another State under the laws of the latter to collect a debt from a citizen of the former, when its own insolvent laws will be evaded bj' the prosecution of said suit.' Constructive service of process by publication or attach- ment of property is sufficient to enable the courts of a State to subject property within it to their jurisdiction, in such cases as the statutes of the State ma}' provide there- for ; but such a service cannot be the foundation of a per- sonal judgment.^ Process from the tribunals of one State 1 Jacquette v. Hugunon, 2 McLean, 129. 2 Christmas v. Russell, 5 Wall. 290. 3 Johnson v. Powers, 139 U. S. 156. As a judgment in personam such proof binds only the ancillary administrator ; as one in rem, only the assets within the State. But if a judgment is obtained against an administrator, it will bind him in another State if subsequently appointed as ancillary administrator in that State. Carpenter v. Strange, 11 Sup. Ct. Rep. 960. 4 Reynolds v. Stockton, 11 Sup. Ct. Rep. 773. 6 Cole V. Cunningham, 13.3 U. S. 107. But if a citizen of New Hampshire prosecutes in Louisiana a suit against a citizen of Massa chusetts, the Louisiana court need not dismiss the suit because it in- terferes with insolvency proceedings in Massachusetts. Reynolds v. Adden, 1,36 U. S. 348. 6 Boswell's Lessee v Otis, 9 How. 336; Cooper v. Reynolds, 10 Wall. 308. 13 194 CONSTITUTIONAL LAW. cannot run into another State and summon parties there domiciled to leave its territory and respond to proceedings against them. Pubhcation of process or notice within the State where the tribunal sits cannot create an}' greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equallj' unavailable in proceedings to establish his per- sonal liability.' But in respect to the res, a judgment in rem, rendered with competent jurisdiction, is conclusive everywhere.^ Leciislation. — Congress has legislated upon this subject by providing that "The acts of the legislature of any State or Territory, or of any country subject to the juris- diction of the United States, shall be authenticated by having the seal of such Territory-, State, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted, in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with the certificate of the judge, chief justice, or presiding magis- trate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."' This law provides what shall be sufficient in all cases, but it does not preclude the States making other regulations, not in conflict with these, for themselves, nor does it pre- vent making proof of records in common-law modes.* These provisions do not prescribe how the effect of such ■ Pennoyer v. Neff, 95 U. S. 714, 727. 2 D'Arey v. Ketchum, 11 How. 166; Williams u. Armroyd, 7 Cranch,42.3. » Rev. Stat. U. S. § 905. 4 Gaines o. Relf, 12 How. 472 , White v. Burnley, 20 How. 235 CONSTITUTIONAL KXJLES OF STATE COMITY. 195 judgments in the State where rendered shall be shown. Hence the effect must be proved as a fact.^ Privileges and Immunities of Citizens. — The next suc- ceeding provision is that " the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." " The privileges and immunities here in question are those only which belong to state citizenship, and which, but for this provision, might be within the reach of unfriendly state legislation. A complete enumeration of them has never been attempted. Mr. Justice Washington thought they might be " all comprehended under the following gen- eral heads : protection bj' the government, the enjoyment of life and liberty, witli the right to acquire and possess property of every kind, and to pursue and obtain hap- piness and safetj', subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus, to institute and maintain actions of every kind in the courts of the State, to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impo- sitions than are paid bj' the citizens of other States, may be mentioned as some of the principal privileges and im- munities of citizens which are clearly embraced b^' the general description of privileges deemed to be funda- mental."^ Other judges, while approving of this general enumeration, have been careful to say that they deem it 1 Hanley v. Donoghue, 116 U. S. 1. 2 Const., Art. IV, § 2, cl. 1. » Corfield v. Coryell, 4 Wash. C. C. 371, 380 And see Smith v. Maryland, 18 How. 71 , Conner b. Elliott, 18 How. 591 ; Ward v. Mary- land, 12 Wall. 418. The object of the clause is to give non-residents not higher privileges than residents possess, but equal privileges with them Kimmish u. Ball, 129 U. S 217. 196 CONSTITUTIOKAL LAW. safer and more in accordance with the duty of a judicial tribunal to leave the meaning " to be determined in each case upon a view of the particular rights asserted and denied therein. And especialh' is this true when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are of such a character that any merely abstract definition could scarcely be correct ; and a failure to make it so would cer- tainly produce mischief." ^ This much it is safe to say, that, " according to the ex- press words and clear meaning of this clause, no privileges are secured by it but those which pertain to citizenship." ^ And the term " citizens," as here' used, applies only to nat | ural persons, members of the body politic, owing allegiance to the State, and aotjo corporations, which are artificial persons created by the legislature, and possessing only the attributes which the legislature has prescribed. It is true that corporations are permitted to sue in the federal courts on an assumption that their members are citizens of the State in which they have corporate being ; but it has never been held that they are citizens in the sense here intended.' It is not a privilege of a citizen of Mississippi that he shall have in Louisiana such rights in property under and bj' virtue of the marriage relation as are given by the laws of the latter State to those who are married or reside therein. Every State regulates these rights for its own people according to its own views of right and pohcy.* Neither is it a privilege of state citizenship to take fish in the public waters of other States. Fisheries in public waters belong to the State in which they are, and the 1 Conner v. Elliott, 18 How. 591, 593 ; McCready o. Virginia, 94 U. S. 391, 395. 2 Conner v. Elliott, 18 How. 591, 593. 3 Paul V. Virginia, 8 Wall. 168, 177, 178 ; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181. » Conner o Elliott, 18 How 591 CONSTITUTIONAL RULES OP STATE COMITY. 197 State maj' provide how they may be made available for the advantage of its people. Therefore a state enact- ment by which others than citizens of the State are for- bidden to plant oysters in the soil covered by tide waters, is not unconstitutional. The people of the State, and they alone, own the property ; and they own it, not by virtue of citizenship merel}', but of citizenship and domicile united ; that is to say, by virtue of a citizenship confined to that particular locality.^ That the taxation of a State which discriminates against the citizens of other States is repugnant to the provision ; under consideration, has been generally conceded. A stat- 1 ute imposing license fees on those carrying on mercantile,' business, but discriminating against those not permanent residents of the State, is therefore invalid.'^ The right to bring suit in those courts of a State which have jurisdiction of the subject-matter, is the privilege of every citizen pf the State, and, therefore, is the privilege of the citizen of another State, even though the defendant is a non-resident also." JSxtradition of Offenders. — The Constitution further provides that " a person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of tbe crime." * 1 McCready v. Virginia, 94 U. S. 391, 396 ; Cliambers v. Churcli, 14 U. I, 398; State v. Medbury, 3 R. I. 138; Crandall v. State, 10 Conn. 340; Slaughter v. Commonwealth, 13 Grat. 767; People o, Coleman, 4 Cal. 46. Before slavery was abolished, it was not one of the privileges of state citizenship for a master to take his slaves with him in passing through a free State, and liold them there in servitude. Lemmon v. People, 20 N. Y. 562. 2 Ward . Ruggles. 8 Johns. (N. Y.) 290; Commonwealth v. Knee- land, 20 Piok. (Mass.) 206 ; State v. Chandler, 2 Harr. (Del.) 563. '' Commonwealth v. Wolf, 3 S. & R. (Penn.) 48; Frolickstein i. Mobile, 40 Ala. 725. 3 Spear, Religion and the State, 315-318. « People V. Ruggles, 8 Johns, (N. Y. ) 290, 293. ^ But such exemptions are mere favors ; they are to be strictly construed. Matter of Mayor, &c. of New York, 11 Johns. (N. Y.) 77 ; Broadway Baptist Church v. McAtee, 8 Bush (Ky.), 508. And they, may be repealed. Christ Church «. Philadelphia, 24 How. 300. CIVIL EIGHTS. 21T Section II. — ■ Security of the Dwelling, and op Person and Papers. Quartering Soldiers, <&c. — The third article of the amendments provides that " no soldier shall, in time of peace, be quartered in any house without the consent of the owner ; nor in time of war but in a manner to be pre- scribed by law." The evil at which this is aimed has been so long unpractised in this country, that it is difficult to suggest to the mind the possibility that security against it may be necessary in a country governed by settled princi- ples of law. Nevertheless, a declaration of the indefeasi- ble right of the citizen can never be wholly needless. Soldiers will be quartered upon the people, if at all, under the orders of a superior, and either because of some supposed imperious necessity, or in order to annoy and injure those who are compelled to receive them. The plea will always be that of necessity ; but this can never be a truthful plea in time of peace, and if the necessity is likely to arise in time of war, the first principles of justice demand that it should be provided for by law, and limita- tions and restraints imposed. At best it is an arbitrary proceeding : it breaks up the quiet of home ; it appropri- ates the property of the citizen to the public use without previous compensation, and without assurance of compen- sation in the future, unless the law shall have promised it. It is difficult to imagine a more terrible means of op- pression than would be the power in the executive, or in a military commander, to fill the house of an obnoxious person with a company of soldiers, who shall be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of discretionary authority within the limits of his command, and in whose presence the ordinar}' laws of courtesy, not less than the rules of law which protect person and property, may be made to bend to whim or caprice.' Such oppressions were fresh 1 Cooley, Const. Lira., 6th ed., 373. 218 CONSTITUTIONAL LAW. in the minds of the people when the Declaration of Inde- pendence was raade, and they then denounced what they prohibited by this amendment. It is proper to add that this protection has no application in time of war to the enemies of the country. Unreasonable Searches and Seizures, — The fourth article of the amendments has in view invasions of right which are more frequent, and of which others may be guilty besides those who command the military force of the State. Most commonly, perhaps, they consist in a disregard of that maxim of constitutional law which finds expression in the common saying that every man's house is his castle. The meaning of this is that every man under the protection of the laws maj close the door of his habi- tation, and defend his privacy in it, not against private individuals merely, but against the officers of the law and the state itself. The amendment declares that " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The latter clause of the amendment suflScientty indicates the circumstances under which a reasonable search and seizure may be made. First, a warrant must issue ; and this implies, (a) a law which shall point out the circum- stances and conditions under which the warrant may be granted; {b) a court or magistrate empowered by the law to grant it ; (c) an officer to whom it may be issued for service. Second, a showing of probable cause ; by which is meant the production of satisfactory evidence to the court or magistrate, (a) showing that a case exists m which the issue of a warrant would be justified by the la*; (b) pointing out the place to be searched, and the persons or things to be seized if they shall be found there. Third, a particular description, in the warrant, of place, personi CIVIL EIGHTS. 219 or things sufficient to guide the officer in executing it. Nothing less than this can be sufficient' The law providing for search-warrants should be limited to cases of actual crime, in which the thing which was the subject or the instrument of the crime, or the supposed criminal, is concealed, or supposed to be concealed, on in- dividual premises. Tlie following are the most frequent cases: for property stolen, and the supposed thief; for propert}' brought into the country in violation of the revenue laws, and the supposed smuggler ; for imple- ments of gaming unlawfully kept ; and for liquors unlaw- fully stored for sale. No doubt the right of search may be extended by statute to other offences ; but an}- search to obtain evidence of an intent to commit a crime can never be legalized.^ The warrant must be executed by a search in the very place described, and not elsewhere ; the service should be made in the day-time, and without the presence of a crowd of people ; ' and the subject of the search must be brought before the court or magistrate, to be disposed of according to law."" If the officer obeys the command of ins warrant, and is guilty of no excess or departure, he is protected, even though the search proves to be fruitless and the showing of cause unfounded. "Without a search-warrant the doors of a man's dwelling may be forced for the purpose of arresting a person known to be therein, for treason, felonj-, or "breach of the peace, or in order to dispossess the occupant when another, by the judgment of a competent court, has been awarded the possession. In extreme cases this may also be done for the enforcement of sanitary and other police regulations ; 1 Bishop, Crim. Procerliire, §§ 240-246. 2 Wilkes's Case, 2 Wils. 151, and 19 State Tri.als, 1405, Broom, Const. Law, 613, De Lolme, Const of England, cli. 18. 3 2 Hale, P. C. 150 ; Arch. Cr. Law, 7tli ed., 145. 4 Fisher v. McGirr, 1 Gray (Mass.), 1 ; Green v. Briggs, 1 Curt. 311.' Hey Sing Jecl£ v. Anderson, 57 Cal. 251. 220 CONSTITUTIONAL LAW. but, in general, the owner ma}- close the outer door against anj' unlicensed entry, and defend it even to the taking of life if that should become necessarj'.' The protection of the Constitution is not, however, con- fined to the dwelling-house, but it extends to one's person and papers, wherever they may be. It is justly assumed that every man may have secrets pertaining to his busi- ness, or his family or social relations, to which his books, papers, letters, or journals may bear testimony, but with which the public, or any individuals of the public who may have controversies with him, can have no legitimate con- cern ; and if they happen to be disgraceful to him, they are nevertheless his secrets, and are not without justifiable occasion to be exposed.^ Moreover, it is as easy to abuse a search for the purpose of destroying evidence that might aid an accused party, as it is for obtaining evidence that would injure him, and the citizen'needs protection on the one ground as much as on the other. Even a search- warrant to seize private papers, letters, and memoranda, must be whoUj' unwarranted, except possibly in cases of frauds upon the revenue, where the papers to be searched for have been the agencies or instruments by means of which the frauds have been accomplished or aided.' 1 Bohannon v. Commonwealth, 8 Bush (Ky.), 481 ; s. c. 8 Am. Rep. 474 ; Pond «. People, 8 Mich. 150. 2 Cooley on Torts, 2nd ed. 346. ^ The seizure of the papers of Algernon Sidney, which were made use of as the means of convicting him of treason, and of those of Wilkes about the time that the controversy between Great Britain and the American Colonies was assuming threatening proportions, was probably the immediate occasion for this constitutional pro- vision. See Leach v. Money, Burr. 1742 ; s. c. 1 W. Bl. 555, 19 State Trials, 1001 and Broom, Const. Law, 525 ; Entlck u. Carrington, 2 Wils. 275; s. c. 19 State Trials, 1030, and Broom, Const. Law, 558 ; May, Const. Hist., ch. 10 ; Trial of Algernon Sidney, 9 State Trials, 817. This whole matter is learnedly and elaborately discussed in United States v. Boyd, 116 U. S. 616, where the question arose upon a revenue statute providing that in case of an action against an im- porter a certain paper should on notice be produced by him, or its CIVIL EIGHTS. 221 General Warrants. — A general warrant is one which either, (1) describes or names no offender, but leaves the ministerial officer to discover and apprehend at discretion ; or (2) describes no place to be searched, but gives the officer unlimited authority to mvade the privacy of indi- viduals without restraint. Such warrants were not un- common m England previous to the decision m Wilkes's case, which forever determined their illegality ; ' and there were instances in the Colonies also which were among the grievances complained of when the Revolution was inaugurated.^ Arrests without Warrant. — There are a few cases in which arrests may be made without warrant ; but the law gives little countenance to such arrests, and whoever makes one must show that the exceptional case existed which would justify it. Any one may arrest another whom he sees committing or attempting to commit a felonj' or forcible breach of the peace ; and a peace officer may arrest, on reasonable grounds of suspicion of felony ; but the person arrested must be at once taken before some court or magistrate of competent jurisdiction to take cog- nizance of the offence. A peace officer may also make arrests without warrant when municipal by-laws are being violated in his presence;^ but he will be a trespasser. if contents as stated by the district attorney should be taken as true. The court considered the statute bad as violating the spirit of the prohibition of the fifth amendment against compeUing a person to be a witness against himself, as well as that of the fourth against un- reasonable searches and seizures. It held that a compulsory pro- duction of papers to establish a criminal charge as a forfeiture of property was illegal whenever a search and seizure would be ; that such compulsory production or search and seizure to get evidence of a crime is unreasonable, and differs utterly from a search for stolen property. ^ See last note. 2 Quincy's Mass. Rep. 51 and 395. A form for a writ of assist- ance, prepared by Governor Hutchinson, is given in these Reports, on p. 418. 8 Mitchell V. Lemon, 34 Md. 176. See Ross v. Leggett, 61 Mich 445k 222 CONSTITUTIONAL LAW. he handcuffs or confines without necessity' a person so arrested.' Section III. — The Pkohibition of Slaveey. Historical. — When the Constitution was adopted slav- ery existed in every State save one. The exception was the State of Massachusetts, in which it had been judicially held, that a provision in the Constitution which declared that " all men are born free and equal, and have certain natural, essential, and unalienable rights ; among which may be reckoned the right of enjoying and defending their lives and liberties ; that of acquiring, possessing, and pro- tecting property : in fine, that of seeking and obtaining their safetj- and happiness," — was inconsistent with the status of slavery, and therefore entitled every man to his freedom.^ It is not certain that this provision was delib- erately adopted in this sense, and it is probable that in other States it would not have been construed as confer- ring freedom upon slaves ; but neither the clause itself, nor the fact that a few slaves obtained their liberty under it, attracted general attention at the time, and the relation of slaverj' elsewhere was not sensibly affected. But although slavery prevailed in twelve of the original States, the interest in and feeling towards it in the north- ern and southern portions of the country were so radically different, that it became exceedingly difficult to agree upon the method in which it should be dealt with by the Con- stitution. Its very existence seemed to some persons a reproach to those who had just emerged from a successful struggle for their own liberties, and were now framing a government for their further protection ; and the com- promises upon the subject which were finally agreed upon, 1 Griffin v. Coleman, 4 H. & K. 265. ^ Draper Civil War in America, vol. i p. 317 ; Bancroft's Hist, of U. S., vol. X. p. 365. Slavery thus disappeared in Massachusetts very much as it did in England under the decision in Sommersett's Case, 20 State Trials, 1 ; Lofft's Reports, 18 ; Broom, Cons*^ Law, 105. CIVIL EIGHTS. 22^3 after much difficulty, would perhaps have been impossible, had it not been believed hy many people in all sections that the institution could have but a temporary existence, and must before many years be wholly done away with.' And it is a significant fact that the word " slave '' or " slavery " does not appear in the Constitution, but servitude and the slave-trade are vaguely referred to under otlier designa- tions, as if they were things not to be more plainly men- tioned in a free constitution.'^ The foreign slave-trade was abolished in ] 808, — as soon as the compromise in the Constitution on that subject would permit, — and the existence of slavery in the States did not become the subject of serious national controversy and disturbance until the application made in 1819 by the Ter- ritory of Missouri for admission to the Union' as a State. The immediate occasions for excitement at that time were ■ the provisions in the constitution which was offered for acceptance, which not only recognized the existence of slavery, but excluded from the legislature the power to abolish it, and, in order to give additional security to the institution, required tlie adoption of legislation to prohibit the admission of free negroes within the State. The con- troversj', which for a time seemed to threaten the exist- ence of the Union, was quieted by the admission of the State upon the fundamental condition that no law should .be passed "by which any citizen of either of the States in the Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States," and by providing that " in all that territory ceded by France to the United States under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north lati- tude, excepting only such parts thereof as are included 1 It was prohibited by common consent in the Northwest Terri- tory in 1787. 2 Kverett's Orations, vol iv. p. 390; Madison's Works, vol. iii p. 150 ; Frothingham, Rise of the Republic, 602. 224 CONSTITUTIONAL LAW. ■within the limits [of Missouri], slaverj- and involuntarj^ ser- vitude, otherwise than in the punishment of crime whereof the party shall have been duly convicted, shall be and is hereby expressly prohibited." ^ This compromise proved eventually unsatisfactory to both sections ; the one insist- ing that citizens of any of the States were of right entitled to settle in the Territories with every species of property recognized by the state laws, and to be protected therein, ■while in the other the sentiment grew and became domi- nant that the fedei'al government ought to prohibit slavery in any territorj- subject to its jurisdiction, and to discoun- tenance it in every way. A new and further compYomise became necessary in 1850, but this was followed, two j-ears later, by the repeal of the prohibition of slavery north of the Missouri Compromise line, and in the rapidly settling Territory of Kansas armed conflicts took place between those who proposed to introduce slaver}' and those who determined to exclude it. During the decade beginning with 1850 the animositj^ and estrangement between the sections increased, until in 1860 a President was chosen as an avowed opponent of any further extension of slave territory ; and, taking this as conclusive evidence of a determination to make unconstitutional war upon their interests, all the slaveholding States, ■vT^ith the exception of Delaware, Maryland, Kentuckj', and Missouri, announced their withdrawal from the Union, and in the two States last named there were also proceedings which assumed to do the same. It had never been claimed bj' any considerable number of persons that, as matter of constitutional law, the United States could interfere with slavery within the States. The whole subject of the domestic relations was left exclusivelj' b}'^ the Constitution to the States.^ Only when slaves es- 1 Benton, Thirty Years' View, ch. 2 ; Writings of Madison, iii. 156-199 ; Stephens, War between the States, ii. 131-175. 2 Barry i". Meroein, 5 How. 103 ; Ex rel. Hohbs & Johnson, 1 Woods, 537. CIVIL EIGHTS. 225 caped from service and fled into other States did the power of the United States attach, and then it had exclu- sive jurisdiction to legislate for their return to their mas- ters.^ The point chieflj' in dispute as a proposition of law was that Congress might prohibit or abolish slavery in the Territories and in the District of Columbia. This was de- nied, as being opposed to the spirit of the constitutional compromises, and as establishing differences in right and privilege as between the citizens of the several States de- siring to remove into such Territories or District with their property, or having occasion to visit or pass through them and take their servants. Some of the subjects of dispute were less mooted ; and among these were the right of the United States to regulate and prohibit the traffic in slaves as between the States, and the right of colored per- sons to the privileges of citizenship in the States. Thei latter was denied by the federal Supreme Court in a case decided in 1857, and the court, though that particular point disposed of the case, took occasion to go further, and to denj' the power of Congress to prohibit slavery- in the Territories.^ By those who disputed this last position the opinion of the court was denounced as an unwarrant- able attempt of the court to settle a political controversy by an ex cathedra and extrajudicial opinion, and a new bitterness was brought into the existing excitement, much to the detriment of the proper influence and authority of the court. The war ended in the practical destruction of slavery in all the States which had been in rebellion. The President had declared emancipation by proclamation, and the armies had accomplished it as they advanced.' The provisional governments all recognized it, and when the reorganized States came with new constitutions for admission to repre- sentation in Congress, these contained an express prohibi- 1 Prigg V. Pennsylvania, 16 Pet. 539. 2 Scott V. Sandford, 19 How. 393. 8 Story on Const., 4th ed, § 1923. 15 226 CbNSTITUTIONAL LAW. tion of slavery. Still slavery existed' in the border States, and in order to abolish it there, as well as to give consti- tutional formality to the national antislavery proceedings, the thirteenth amendment to the Constitution was proposed and adopted. The Constitution. — This amendment declares, adopting the language of the Ordinance of 1787, that "neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." The word " slavery " in this country has acquired a somewhat technical meaning, and is limited to that sort of servitude which has prevailed under the state laws, namely, to servitude for life. The prohibition of slavery merely might therefore seem to be limited to this sort of service, leaving the legislative authorities at liberty to establish compulsory service for terms of years at discretion. Indeed, such servitude had existed in the early historj- of the country in cases of immigrants known as redemptioners, and of some others, and it would be easy to suggest exceptional cases in which excuses might exist to enact laws for compulsory service, were the legis- lature so disposed. It was deemed important, therefore, that the prohibition should include, not slavery merely, but all classes of involuntary servitude not imposed as a punishment. Involuntary Servitude. — The prohibition was not unim- portant. Immediately following emancipation, laws were passed in some of the late slaveholding States for the compulsorj' apprenticeship of colored persons, on terms which were made applicable to them alone ; and the pro- visions of the indenture were such as evidentlj- assumed the inferior and degraded condition of this class of per- sons, and had a strong tendency to perpetuate it. In some States, also, colored persons were forbidden to en- gage in certain ordinary employments except on payment of a large license-fee, or on producing to the authorities CIVIL EIGHTS. 227 satisfactory proof of good moral character. It was soon decided tiiat compulsory apprenticeship under these partial and invidious laws was involuntary servitude within the meaning of this amendment, and was therefore forbidden.' It can scarcely be doubted that exclusion from emploj-- ment may as effectually establish involuntary servitude as any use of physical force. In so far as one is excluded from entering upon common vocations, the sphere of his choice is narrowed ; and if the prohibition may be made applicable to one or two employments, it may be extended to all but one, and at last the class discriminated against maj' be forced to serve in a menial employment, and the nominal freedom then becomes degrading slavery. It is therefore a just conclusion, that any discrimination which narrows to one class, while leaving unrestricted to others, the freedom of choice in employments, must be regarded as the establishment of involuntarj' servitude, and there- fore forbidden. But the amendment is not designed to interfere with such regulations of service in the domestic relations as were formerly admissible, including the service of minors in apprenticeship under general laws. The involuntary servitude forbidden was such as would not be tolerated by the free principles of the common law, and not such as that code permitted in the case of dependent relations. Enforcement Laws. ■ — The same amendment also pro- vides that "Congress shall have power to enforce this article bj' appropriate legislation." Whether this provi- sion has any importance must depend upon whether the prohibitory clause itself falls short of furnishing a com- plete and sufficient protection. A constitutional provision is sometimes, of itself, a complete law for the accomplish- ment of the purpose for which it was established, and 1 Matter of Turner, 1 Abb. U. S 84. It is beld that the legisla- ture may make the breach of particular kind of contract, for example, a contract to labor, an indictable offence, without violating the 13th Amendment. State v. Williams, 10 S. E. Eep 876 (S. C). 228 CONSTITUTIONAL LAW. sometimes it merely declares a principle which will be dormant until legislation is had to give it effect. When the former is the case, the provision is sometimes spoken of as self-executing. Nearly all the provisions of the federal Constitution which confer legislative or judicial power, are inoperative for the practical purposes intended until legislation under them has given the means, and pointed out the methods, by which the powers shall be exercised. The case of the judicial power is an apt illustration : it extends to contro' versies between citizens of different States, but, before it can be applied in actual suits, there must be legislation which prescribes what classes of these controversies the federal courts shall be permitted to take cognizance of. In like manner, the courts do not take cognizance of cases of bankruptcj- until the jurisdiction is expressly conferred by law, though the judicial power is extended to those cases by the Constitution itself. With some provisions of the Constitution, however, and especially the prohibitory clauses, it is different. A pro- hibition of a power in the federal Constitution defeats any attempt at its exercise, and an}' court, state or federal, that may have cognizance of a case in which the power can come in controversy, whether directlj' or incidentallj', must take notice of, and act upon, the prohibition. Thus the mere declaration that " no bill of attainder shall be passed " has been found ample to protect all the people against legislative punishment, in eases not within their proper cognizance, though no legislation has ever been had looking to its enforcement. The case of the prohibi- tion of laws impairing the obligation of contracts is a still more striking illustration of the force of certain provisions standing independently. In a multitude of forms laws have appeared which were supposed to violate this provis- ion, and in no case has a court, either state or national, had any difficulty in dealing with it, or in declaring the law null if it was believed to be within the prohibition. CIVIL EIGHTS. 229 Such a provision may well be declared self-executing : it is a complete and perfect law in itself, which all courts must take notice of and . enforce whenever a disregard of it comes to their judicial notice, without an}' statute requiring or expressly permitting it. The prohibition of slavery and involuntary servitude is self-executing in this sense. All state laws then in exist- ence which were inconsistent with it were bj- its inherent force nullified, and all state legislation which should^ thereafter be attempted inconsistent with it was rendered null in its incipiency. And while courts shall be in exist- ence competent to issue the writ of habeas corpus, and to administer common-law remedies, it seems difficult to imagine a case of attempt at a violation or evasion of this declaration of universal liberty that shall be wanting in appropriate redress.-' Section IV. — The Guaranties of Life, Libeett, and Equality. The Oonstitution. — It is declared by the fourteenth arti- cle of the amendments, that " no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." This provision is directed at state action only, not at the action of individuals ; ^ but, since the State must act through some of its departments or officers, under the term " state action " will be included the action of any department or instrumentality representing 1 The Thirteenth Amendment of its own force abolished slavery, and unlike the Fourteenth, permits Congress primarily and directly to legislate so as to meet all cases affected by it. But it relates only to slavery and servitude, not to unequal class legislation. The denial to negroes of equal admission into inns, cars, theatres, &c., with whites is not a form of servitude. It is a civil injury. This amend- ment, therefore, gives Congress no power to pass an act forbidding such denial. Civil Rights Cases, 109 U. S. 3. 2 Virginia v. Eives, 100 U. S. 313 ; Civil Eights Cases, 109 U. S. 3. 230 CONSTITUTIONAL IaA."W. the State. A ^tate officer may therefore be punished for excluding persons from jury service because of their race.^ Congress has power to enforce these provisions. Its action, however, must be bj' way of correcting and overriding action taken by the State, and not by primary, direct legislation as to the subject-matter.^ Due Process of Law. — To a proper appreciation of this guaranty it is important, first, to have correct under- standing of the terms made use of. The terms are gen- eral, and can only be understood when their known and customary application is explained. This is especially the case with the phrase "due process of law." It has long been in use, among law writers and in judicial decisions, as implying correct and -orderly proceedings, which are due because they observe all the securities for private right which are applicable in the particular case. In this sense it is synon^-mous with "law of the land," as used in the famous twentj'-ninth chapter of Magna Charta, which declared that " no freeman shall be taken, or imprisoned, or disseized, or outlawed, or banished, or anjways de- stroj'cd, nor will the king pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land." The identity of the two in meaning and purpose is now well settled.' Admitting the identity of meaning, however, does not of itself bring us to an understanding of the purpose and effect of this guaranty. " What is the law of the land? It cannot be the common law merely. Statute law is in the highest sense the law of the land ; and the legis- lative department, created for the very purpose of de- 1 Ex parte Virginia, 100 U. S. 339. If, however, the legislative department of the State has furnished a proper remedy, the .error o£ the judicial department in applying the law is not regarded as State action, and the State does not thereby deprive of property without due process of law. Arrowsmith v. Harmoning, 118 U. S. 194 ; In re Converse, 137 U. S. 624. See Davis v. Texas, 139 U. S. 651. 2 Civil Rights Cases, 109 U. S. 3. 3 Murray's Lessee v. Hoboken Land Co., 18 How. 272, 276. CIVIL EIGHTS. 231 daring from time to time what shall be the law, possesses ample powers to make, modifj', and repeal, as public policy or the public need shall demand. Such being the case, the question presents itself whether anything may be made the law of the land, or may become due process of law, which the legislature under proper forms may see fit to enact? To solve this question we have only to con- sider for a moment the purpose of the clause under ex- amination. That purpose, as is apparent, was individual protection by limitation upon power ; and an}- construc- tion which would leave with the legislature this unbridled authority, as has been well said bj' an eminent jurist, ' would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to sav to the two Houses, You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of the rights or privileges of a citizen unless you pass a statute for that purpose. In other words, you shall not do the wrong unless you choose to do it.'^ " To quote the words of an eminent advocate and states- man, ' Everything which may pass under the forms of an enactment is not to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly' transferring one man's estate to another, legisla- tive judgments, decrees, and forfeitures in all possible , forms, would be the law of the land. Such a strange construction would render constitutional pro\'isions of the highest importance completely inoperative and void. It would tend directly to establish the union of all the powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The 1 Taylor v. Porter, 4 Hill (N. Y.), 140, 143. See Hoke v. Hender- son, 4 Dev. (N. C.) 1 ; Kinney v. Beverley, 1 Hen. & M. ( Va.) 531 ; Norman v. Heist, 5 W. & S. (Penn.) 171 ; Janes v. Reynolds, 2 Tex. 250. See also Davidson v. New Orleans, 96 U. S. 97. 232 CONSTITUTIONAL JjAW. administration of justice would be an emptj^ form, an idle ceremony. Judges would sit to execute legislative judg- ments and decrees, not to declare the law or administer the justice of the country.' And he gives us a definition of his own, in the concise and comprehensive language of which he was so eminent^ the master : ' Bj' the law of the land is most clearly intended the general law, — a law which hears before it condemns, which proceeds upon in- quiry, and renders judgment only after trial. The mean- ing is that. every citizen shall hold his life, libertj-, prop- erty, and immunities under the protection of tlie general rules which govern society.' '■ ' As to the words from Magna Charta,' says another eminent jurist, ' after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this : that they were intended to secure the individual from the arbitrary exercise of the powers of government, unre- strained by the established principles of private right and distributive justice.' ^ " Such have been the views of able jurists and states- men ; and the deduction is that life, liberty, and property are placed under the protection of known and established principles which cannot be dispensed with either gen- erally or specially ; either by courts or executive officers, or by legislators themselves. Different principles are applicable in different cases, and require different forms and proceedings ; in some they must be judicial ; in others the government may interfere directlj', and ex parte ; but due process of law in each particular case means such an exertion of the powers of government as the settled max- ims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims pre- 1 Webster in Dartmouth College v. Woodward, 4 Wheat. 518 ; Webster's Works, v. 487. ^ Bank of Columbia ». Okely, 4 Wheat. 235. See also discussion of the matter in Hagar v. Reclamation Dist.. Ill U. S. 701 ; Dent u, West- Virginia, 129 U. S. 114. CIVIL RIGHTS. 233 gcribe for the class of cases to which the one being dealt with belongs. , "When life and libertj' are in question, there must in every instance be judicial proceedings ; and that require- ment implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted." ^ In general, whatever the State establishes will be due process of law, so that it be general and impartial in operation, and disregard no provision of federal or state constitution. Usually, however, an accused person will be entitled to the judgment of his peers, unless that mode of trial is ex- pressly dispensed with by law. There may be military tri- bunals for the trial of military offences, but these must keep strictly within the limits of tlieir legal authority. The common law is over and above all tribunals admin- istering any other code, and is watchful and vigilant to keep them within the limits of their jurisdiction, and to punish their members if they usurp authority not belong- ing to them.^ Whether a mode of procedure is due process depends not upon considerations of form but upon the principles underlying the process. " Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen."' The states, therefore, maj' prescribe their own modes of proceeding and trial ; the accusation may be by grand jury or without one ; ■• the trial by jury 1 Story on Const., 4th ed., §§ 194.3-1946. 2 Story on Const., § 1947 ; Cooley, Const. Lim., ch. 11 ; Milligan, ex parte, 4 Wall. 2. 2 Cooley, Const. Lim., 6th ed., 334 ; Hurtado v. California, 110 U.,S. 516. \* Hurtado v. California, 110 U. S. 516, where Matthews, J., u,»es this language: "It follows that any legal proceeding enforced by public authority whether sanctioned by age and custom or newly de- \ vised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves those principles of liberty and justice, must be held to be due process."" 234 CONSTITUTIONAL LAW. or bj' court.^ Proceedings to condemn land ma}- be be- fore special tribunals, and notice of the proceedings may be given by publication and not personally.^ In tax pro- ceedings the general system established in this country for assessment and collection is due process.'' If a tax is specific, there is no need of notice and a hearing. If it is not, there must be notice and an opportunity for hear- ing, but an administrative board is a proper tribunal to conduct the hearing, and the law prescribing the time of its meetings is sufficient as notice. So it is due process if the tax is laid without notice, provided in judicial pro- ceedings for its collection the tax-payers have an oppor- tunity to be heard.* Life and Liberty. — These words are used in constitu- tional law as standing for and representing all personal rights whatsoever, except those which are embraced in the idea of property. The comprehensive word is " liberty ; " and bj- this is meant, not merely freedom to move about unrestrained, but such liberty of conduct, choice, and action as the law gives and protects. Liberty is sometimes clas- sified as natural liberty, civil liberty, and political liberty. The first term is commonly employed in a somewhat vague and indeterminate sense. One man will perhaps under- stand by it a liberty to enjoy all those rights which are usu- ally regarded as fundamental, and which all governments should concede to all their subjects ; but as it would be necessary to agree what these are, and the agreement could only be expressed in the form of law, the natural liberty, 1 Walker ti. Sauvinet, 92 U. S. 90. Summary proceedings are due process in disbarring an attorney. Ex parte Wall, 107 U. S. 265. Liquor selling may be punished as a contempt. Eilenbecker V. Dist. Ct., 134 TJ. S. 31. 2 Pearson u. Yewdall, 95 U. S. 294; Ruling v. Railway Co., 130 U. S. 559. 8 Kelly V. Pittsburgh, 104 U. S. 78. * McMillan u. Anderson, 95 U. S. 37; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation Dist., Ill U. S. 701; Kentucky R. R. Tax Cases, 115 U. S. 321 ; Lent v. Tillson, 11 Sup. Ct. Repi 825. CIVIL EIGHTS. 236 SO far as the law could take notice of it, would be found at last to resolve itself into such libert}' as the govei'nment of every civilized people would be expected b^' law to de- fine and protect. Another bj' natural liberty may under- stand that freedom from restraint which exists before an}' government has imposed its limitations. But as without government only a savage state could exist, and any lib- erty would be only that of the wild beast, in which every man would have an equal right to take or hold whatever his agilitj', courage, strength, or cunning could secure, but no available right to more, it is obvious that a natural liberty of the sort would be inconsistent with anj- valuable right whatever. A right in any valuable sense can onl}- be that which the law secures to its possessor, by requiring others to respect it, and to abstain from its violation. Rights, then, are the offspring of law ; thej- are born of legal restraints ; by these restraints every man raaj' be protected in their enjo3'ment within the prescribed limits ; without them possessions must be obtained and defended by cunning or force. Civil Liberty and Political Liberty. — Civil libertj' maj- be defined as that condition in which rights are estab- lished and protected, b}' means of such limitations and restraints upon the action of individual members of the political societj-, as are needed to prevent what would be injurious to other individuals, or prejudicial to the general welfare. -This condition maj' exist in any country, but its extent and securities must depend largely upon the degree of political libertj' which accompanies it. Political liberty may be defined as consisting in an effectual participation of the people in the making of the laws.^ Equality. — The theory of our institutions is, that every man's civil libertj' is the same with that of others, — that all men are equal before the law in rights, privileges, and legal capacities. Every person, however low, or degraded, 1 As to what is property, see post, Ch. XVI. sec. 2. 236 CONSTITUTIONAL LAW. or poor, is entitled to have his rights tested b}' the same general laws which govern others. A supposed pauper is as much entitled to a hearing before he can be consigned to the workhouse, as is anj^ other person whose libei-tj- is threatened.^ A supposed insane person cannot be com- mitted to an asylum against his will without a judicial investigation ; '■' nor can a man's property be seized and destroj-ed, or moved off as a nuisance, at the mere discre- tion or on tlie judgment of a ministerial officer.' A State, therefore, has no business to bestow favors or to establish unjust discriminations. It nevertheless becomes impor- tant to the general welfare that special privileges should be granted in some cases, because from the nature of the case there cannot be a general participation. If a national bank is essential, everybody cannot be a corporator ; if a railroad is to be built, the franchise must necessarilj' be given into the hands of a few persons. In these and other cases falling within similar reasons, special charters may be granted without giving cause for complaint. But it is a just rule of construction that all grants of franchise and privilege are to be strictly construed ; the State will be presumed to have granted in plain terms all it intended to grant at all.* This theory of equal protection of the laws is expressed and emphasized in the fourteenth amendment. That amendment was designed primarilj- to protect the emanci-' pated slave in his rights as a free man, and to prevent dis- crimination against him on account of his color. ^ For instance, no State can entirely exclude negroes from jury 1 Portland u. Bangor, 65 Me. 120. 2 Van Deusen v. Newcomer, 40 Mich. 90. 8 Fisher v. McGirr, 1 Gray (Mass.), 1 ; Darst v. People, 51 111. 286; State V. Paul, 5 R. I. 185 ; Miller v. Burch, 32 Tex. 208. * Charles River Bridge v. Warren Bridge, 1 1 Pet. 420, 544 ; Perrine V. Canal Co., 9 How. 172; Wheeling, &c. Bridge Co. u. Wheeling Bridge Co., 138 U. S. 287. 5 Slaughter House Cases, 16 Wall. 86; Strauder v. West Virginia, 100 U. S. 303. CIVIL EIGHTS. 237 service because of their color, for such exclusion is a denial of the equal protection of the laws.' But the amendment is not limited in its effect to colored persons. All persons in the United States are protected by its pro- visions, and the word '• person " is held to embrace resident aliens ^ and corporations.^ The guarantee of equal protection is not to be under- ' stood, however, as requiring that every person in the land shall possess preciselj' the same rights and privileges as every other person. The amendment contemplates classes of persons, and the protection given bj' the law is to be deemed equal, if all persons in the same class are treated alike under like circumstances and conditions both as to privileges conferred and liabilities imposed.^ Therefore there may be different courts of appeal for the hearing of the same kinds of causes tried in different parts of the same States.^ Local assessments upon propertj- specially benefited are valid, if equal within the class benefited.* Railroads may be made a special class for taxation ' and 1 Strauder v. West Virginia, 100 U. S. 303 ; Ex parte Virginia, Id. 339 ; Bush v. Kentucky, 107 U. S. 110. But a colored man is not entitled to a trial jury composed in part of negroes. Virginia v. Rives, 100 U. S. 313. See Wood v. Brush, 11 Sup. Ct. Rep. 738. 2 Tick Wo V. Hopkins, 118 U. S. 356. 8 Pembina Mining Co. v. Pennsylvania, 125 U. S. 181. * Soon Hing v. Crovfley, 113 U. S. 703 ; Hayes v. Missouri, 120 U. S. 68; Home Ins. Co. v. New York, 1-34 U. S. 594; Pemhina Min- ' ing Co. V. Pennsylvania, 125 U. S. 181 ; fCrowley v. Christeiisen, 137 U. S. 86. " Class legislation discriminating against some and favor- ing others is prohibited ; but legislation which, in carrying out ^a public purpose, is limited in its application " is not within the prohi- bition of the amendment, "if within the sphere of its operations it affects alike all persons similarly situated."^ Barbier v. Connolly, 113 , U. S. 27. * Lewis U.Missouri, 101 U. S. 22. So in murder trials more chal- lenges may be given to the State in cities than in country districts. Hayes v. Missouri, 120 U. S. 68. 6 Walston V. Nevin, 128 U. S. 678; Wurts v. Hoagland, 114 U. S 606. ' Kentucky R. R. Tax Cases, 115 U. S. 321. 238 CONSTITUTIONAL LAW". other purposes.' The California Chinese Laundry cases afford good illustrations of the limits of the principle. An, ordinance forbidding washing between certain hours in all public laundries within certain limits of a city is good, " but one forbidding the carrying on the laundry business within the city at all without the consent of certain officers is invalid, if the consent is arbitrarily withheld from all Chinamen and granted to other persons.' The Police Power. — The authority to establish, for the intercourse of the several members of the body politic with each other, those rules of good conduct and good neigh- borhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjo^^ment of his own, so far as is reasonably consistent with a correspond- ing enjoyment by others, is usually spoken of as the au- thority or power of police. This is a most comprehensive branch of sovereignty, extending as it does to every per- son, every public and private right, everything in the na- ture of propertj^, everj- relation in the State, in society, and in private life.* The use of the public highways is regulated under it ; so are the public fisheries and mines, if any, and so are all the occupations of life. The domes- tic relations are formed, regulated, sustained, and dissolved under the rules it prescribes : the age at which a child be- comes emancipated, the terms under which he may be allowed to apprentice himself or be forced bj' the public authorities to do so, and the measure of independent action in the marriage relation, are all determined by its rules. These rules seldom raise any question of constitu- 1 Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512 ; Same v. Mackey, 127 U. S. 205. 2 Barbier u. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703. 8 Yick Wo V. Hopkins, 118 U. S. 356. An ordinance requiring all Chinese who remain in a city to live within a certain district is void. In re Lee Sing, 43 Fed. Rep. 369. * Commonwealth v. Alger, 7 Cush. (Mass.) 53 ; Thorpe v. Railroad Co., 27 Vt. 140. CIVIL EIGHTS. 239 tional authoritj-, but it is possible for them to be pushed to an extreme that shall deny just liberty. ( The fourteenth 'amendment is held not to have taken from the States the police power reserved to them at the time of the adoption of the Constitution.^ Marriage. — This is a relation formed by the consent of two persons of opposite sexes under natural laws, and in a general sense the right to form it is universal. But, as with every other conventional right, circumstances create exceptions, and general rules become necessarj- by means of which the exceptions may be determined. The relation is the most important that can exist in the state ; the well- being of societj- depends on its preservation in its purity, and it is of the highest importance that those marriages should be prohibited that would be unflt, and that would tend to demoralize the communitj-, or in their progenj' to give to society a debased offspring. On these grounds the marriages of immature persons are proiiibitcd, and also those of persons unsound in mind. No doubt these reg- ulations might go much farther than they do ; and they are supplemented by others which require certain forms, in order to publicity and certainty of evidence, and to guard against frauds. The legal right may therefore be ex- pressed thus : every one has lawful right to marry, who possesses the capacity and qualifications required by law, with a person of the opposite sex having the like capacity and qualifications, whose consent is obtained, and with whom the legal conditions to marriage are observed. If the regulations apply universally and impartially, a question of constitutional law can scarcely arise upon them, for every independent State must be at liberty to regulate the domestic institutions of its people as shall seem most 'for the general welfare. A regulation, how- ever, that should apply to one class exclusively, and which 1 Slaughter House Cases, 16 Wall. 36; Barbier i>, Connolly, 113 U. S. 27 ; Mugler v. Kansas, 123 U. S. 623. 240 CONSTITUTIONAL LAW. should not be based upon any distinction between that class and others which could be important to the relation, must be wholly unwarranted and illegal. This principle is conceded, but it is not easy to determine what regulation would come within it. Many States prohibit the inter- marriage of white persons and negroes ; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an un- reasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against the other: it merely forbids marriages between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede or prevent it. Race prejudice no doubt has had something to do with establish- ing it, but it cannot be said to be so entirely without rea- son in its support as to be pureh- arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege, or exemption.' Divorce. — As with marriage, so with divorce ; every State will establish such rules as seem best for the asso- ciated people. The following rules of law maj' be con- sidered settled: — 1. That the legislature ra&y lay down general rules of divorce, or it may prescribe a particular rule for a particular case ; in other words, may grant spe- cial divorces at will. This is the rule in the absence of constitutional provisions on the subject, but in a major- ity of the States legislative divorces are now prohibited. 2. That the idea of vested rights, as it applies to property, has no application to the domestic relations. Therefore, one cannot complain that he is deprived of a vested right though the rule prescribed under which his marriage is dis- 1 State V. Jackson, 80 Mo. 175 ; State v. Gibson, 36 Ind. 389 ; State V. Hairston, 63 N. C. 451; Lonas v. State, 3 Heisk. (Tenn.) 287 ; Ex parte Hobbs and Johnson, 1 Woods, 537 ; State v. Tutty, 41 Fed. Rep. 763. CIVIL EIGHTS. 241 solved seems to him unreasonable or unjust.* 3. That a mere legislative act, where legislative divorces are not pro- hibited, is due process of law for this purpose, and, as in the case of the passage of an^- other law, its justice cannot become the subject of judicial inquiry. 4. That, when divorce is by law made a judicial proceeding, the right to a hearing is the same that exists in controversies over prop- erty rights, and is indefeasible. 5. No State can establish rules for divorce for any but its own people, nor grant divorces to those not domiciled within its own limits. It is under this principle that questions of constitutional right are likelj' to arise. The principle is clear, but attempts are often made to avoid it b^' going from one jurisdiction, and obtaining a merelj' colorable residence in another, for the purposes of divorce. A divorce obtained under such cir- cumstances is wholly unauthorized and void for want of authority in the State whose courts assume to grant it.^ Nor can the constitutional provision that full faith and credit shall be given in each State to the judicial proceed- ings, &c., of ever}' other State require such a divorce to be respected elsewhere, because it is not entitled to respect in the State in which it takes place.' Education. — That civil liberty- would be exceedingly imperfect that did not permit the citizen to educate himself in such proper ways as might be open to him, and to such extent as he should choose. The State, however, usually makes provision for public education, establishing schools and laying down rules respecting those who shall be received into them. Formerly it was held that such a provision was in the nature of state bountj', and that the State might limit the bounty at discretion. Therefore 1 Starr ». Pease, 8 Conn. 541 ; Crane v. Meginnis, 1 Gill & J. (Md.) 463. 2 Hanover v. Turner, 14 Mass. 227 ; Leith v. Leith, 39 N. H. 20 ; People V. Dawell, 25 Mich. 247; Hoffman v. Hoffman, 46 N. Y. 30; Reel V. Elder, 62 Penn. St. 308. ' Chase V. Chase, 6 Gray (Mass.), 157. 16 242 CONSTITUTIONAL LAW. colored children might be excluded from the public schools.^ But since the adoption of the foui-teenth amend- ment this is unlawful,^ though it seems to be admissible to require colored persons to attend separate schools, provided the schools are equal in advantages, and the same measure of privilege and opportunity is afforded in each.^ Employment. — The general rule is that everj' person sui juris has a right to choose his own emploj-ment, and to devote his labor to' any calling, or at his option to hire it out in the service of others. This is one of the first and highest of all ci^il rights, and any restrictions that dis- criminate against persons or classes are inadmissible. The right to reside in a countrj- Implies the right to labor there, and therefore if by treaty with a foreign country its people are given the liberty to reside in this, no State can have the right to forbid their employment, as this would be in conflict with the rights given by the treatj'.^ Employments are nevertheless subject to control under the state power of police, and maj" be regulated in various waj's, and to some extent restricted.^ 1. The State maj- forbid certain classes of persons being eraploj-ed in occupations which their age, sex, or health renders unsuitable for them ; as women and young children are sometimes forbidden to be emploj'ed in mines and certain kinds of manufacture. 2. The State maj- require special training for some em- ploj'ments, and forbid persons engaging in them who have 1 Roberts v. Boston, 5 Cusli. (Mass.) 198. 2 Ward V. Flood, 48 Cal. 36. 8 Cory V. Carter, 48 Ind. 327 ; State v. McCann, 21 Ohio St. 198 j County Court u. Robinson, 27 Ala. 116; People v. Gallagher, 93 N. Y. 438. - ^ Baker v. Portland, 5 Sawy. 566 ; Chapman v. Toy Long, 4 Sawy. 36; Soon King v. Crowley, 113 U. S. 703. ^ An ordinance making it a penal offence for a city contractor to demand more tlian eight hours labor per day of his employees is Toid. Ex parte Kuback, 85 Cal. 274. CIVIL RIGHTS. 243 not proved their fitness on examination, and been duly licensed. Such are the cases of practitioners of law and of medicine.^ Similar regulations cannot be extended to members of the clerical profession, since it is a part of the religious freedom of the people that they should be left at liberty to listen to such ministrations as they please, and to select their own teachers, whether learned or un- learned, wise or foolish. Where an employment is in the nature of a privilege, as is the practice of the law, it maj- be restricted, as suf- frage is, to persons of the male sex.^ 3. An occupation opposed to public policy, like that of gaming, may be prohibited altogether. And where one is peculiarly liable to abuses, it may be surrounded by all such securities as may seem calculated to prevent them. The case of the sale of intoxicating drinks is an illustra- tion. Sometimes this is prohibited altogether,^ because the evils are supposed to exceed any possible benefits ; and the prohibition invades no principle of constitutional liberty.^ If by such laws existing brewery property is ren- dered valueless or is abated as a nuisance without com- pensation, the owner cannot complain of a lack of due process of law.^ Sometimes the business is only subjected to stringent regulations ; such as that the dealer shall give evidence of good moral character, be approved by some local board, give securitj' not to sell to minors or habitual drunkards, &c. Recently statutes have gone much fur- ^ If by such regulation one, who has practised such profession for a time, is prevented from continuing its pursuit, he is not deprived of property without due process of law. Dent v. West Virginia, 129 U. S. 114. 2 Bradwell v. State, 16 Wall. 130 ; Matter of Goodell, 39 Wis. 232 ; Ex parte Spinney, 10 Nev. 323; Robinson's Case, 131 Mass. 376. ^ Beer Company v. Massachusetts, 97 U. S. Rep. 25 ; License Tax Cases, 5 Wall. 462. * License Cases, 5 How. 504 ; Lincoln v. Smith, 27 Vt. 328 ; Rey nolds V. Geary, 26 Conn. 179. 6 Mugler V. Kansas, 123 U. S. 673 ; Kidd v. Pearson, 128 U. S. 1 244 CONSTITUTIONAL LAW. ther, and made dealers responsible for all injuries, direct and indirect, that maj- result .from their sales, to the wifci child, parent, or emploj-er of the purchaser ; and it is held competent for the State to impose this severe responsibil- itj-.^ Some statutes even make the owners of property on which liquors are sold by others responsible for the result- ing injury. And upon the principle that the State may restrain or forbid the use of whatever articles it deems prejudicial to the public health or morals, statutes prohibit- ing the manufacture or sale of oleomargarine have been sustained in spite of the fourteenth amendment.'* Innkeepers and Common Oarriers. — In general every person may make rules for the regulation of his own busi- ness, and may deal with whomsoever he pleases, and refuse to deal with others. Exceptional rules have grown up at the common law in respect to certain occupations, on ac- count of their public nature. One of these is that of an innkeeper, whose obligation at the common law is to re- ceive all who come, and entertain them impartiallj', pro- vided he has sufficient accommodations, and they come in an orderly and decent manner, not intoxicated or subject to a contagious or infectious disease.' A common carrier is under similar obligations, and has similar rights. But he ma}' discriminate in the accommodation he affords, so long as the distinctions are not wholh* unreasonable ; as some railroad companies do in furnishing different car- riages for male and female passengers ; * and it has been decided in some eases that the carrier may discriminate in the same way between persons of different races, provided the accommodations afforded to all are equal.* No doubt 1 Wilkerson v. Rust, 57 Ind. 172 ; State v. Ltidington, 33 Wis. 107. '^ Powell V. Pennsylvania, 127 U. S. 678. 8 Howell V. Jackson, 6 C. & P. 723 ; Markham v. Brown, 8 N. H. 523. * Chicago, &o. R. R. Co. v. Williams, 55 111. 185 ; Hutchinson on Carriers, § 542. 5 Westchester, &c. R. R. Co. v. Miles, 55 Penn. St. 209; Green v. Bridgeton (U. S. Dist. Ct. Georgia), 9 Cent. Law Jour. 206. CIVIL EIGHTS. 245 state legislation might lawfully forbid such discriminations,^ and Congress might do the same, so far as concerns the commerce that falls within its conti'ol ; " but Congress can have no power within the State to legislate for equal and impartial accommodations in public inns, theatres, &c.' Where the common carrier is a railroad company, ex- isting and operating its road under a grant of important state franchises, among which is that of exercising the right of eminent domain for the acquisition of right of way, &c., and especially if b3' the charter the State has reserved the right of alteration and repeal, the State maj' extend its regulations so far as to fix the rates of trans- portation, and to compel submission to the constant super- vision of commissioners, whose duty it shall be to see that the laws are obeyed, and that absolute impartiality is observed/ Regulation of Prices. — Formerly it was common by legislation to regulate wages, and the prices of merchan- dise, or whatever any one person might have to dispose of to another. To some extent this was done in this coun- try in colonial daj's, but never generally ; and the old laws on the subject were unquestionably innovations on common right, and usurpations of authority. In some cases, how- ever, the right to regulate charges is still exercised, and in the following cases may be justified on principle : — 1. Where the business is one the following of which is not a matter of right, but is permitted by the State as a privilege or franchise. Under this head may be classed the business of setting up lotteries, of giving shows, &c., of keeping billiard-tables for hire, of selling intoxicating drinljs, and of keeping a ferry or toll bridge. 1 De Cuir v. Benson, 27 La. Ann. 1. 2 See Hall v. De Cuir, 95 U. S. 485. 3 Civil Rights Cases, 109 U. S. 3, m which the purpose and force of the new amendments to the Constitution are considered. * Chicago, &c. R. R. Co. v. Iowa, 94 U. S. 155 ; Peik «. Chic'ago, &c. R. R. Co., 94 U. S. 164. See, furtlier, cases cited Ch. XVI. sec. 1, under " Regulation of Charter Contracts." 246 CONSTITUTIONAL LAW. 2. When the State on public grounds renders to the business special assistance b3- taxation, or under the emi- nent domain, as is done in the case of railroads. 3. When, for the accommodation of the business, special privileges are given in the public streets, or exceptional use allowed of public property or public easements, as is the ease with hackmen, draymen, &c. 4. When exclusive privileges are granted in considera- tion of some special return to the public, or in order to secure something to the public not otherwise attainable.' To these may be added : — 5. Those employments which are quasi public, and es- sential to the business of the country, but of which the circumstances give to a few persons a virtual monopolj- at each important commercial centre, — such as those who own elevators for- the storage of grain have in the city of Chicago.^ 6. The case of money loans. This last is an exception difficult to defend on principle ; but the power to regulate the rate of interest has been employed from, the earliest days, and has been too long acquiesced in to be questioned now. Monopolies. — Every exclusive privilege is to some ex- tent an infringement upon equal rights, and therefore ought to be capable of being defended on some ground that un- der the circumstances justifies it. But monopohes are undoubtedly' admissible in some cases. An illustration is had in the case of a patent, and another in the case of a copyright of a book or print. Monopolies in all kinds of business were at one time common in England ; but they were held to be illegal at length, the court declaring that "the sole trade of anj- mechanical artifice, or any other monopoly, is not only a damage and prejudice to those who exercise the same trade, but also to all other subjects ; 1 Slaughter-House Cases, 16 Wall. 36 j Water Works v. Schottler, 110 U. S. 347. 2 Munn V. People, 69 111 80; Munn v Illinois, 94 U. S. 113. CIVIL RIGHTS. 24:7 for the end of all these monopolies is for the private gain of the patentees." ^ It is certain that they cannot be granted in such ordinary vocations as can be left open to all to the common benefit ; but they sometimes maj- be given as a matter of regulation, where the business is such that the public interest can be best subserved and protected by confiding it to one person, or association of persons who shall manage it exclusively. For example, the exclusive right to supply water or gas-light in a city or part of a city is sometimes granted,'^ or the exclusive right to lay railway tracks in its streets ; and it has been held that a corporation may be given the exclusive right to slaughter cattle for the markets of a citj', it being required to do so impartially for all who apply, and at reasonable rates.' This obligation to serve the public impartially would seem to be an essential incident to any grant of a monopoly, since without it it would be impossible to justify the grant on public grounds. Combinations to effect monopolies are opposed to the public interest, and may be forbidden and punished. So combinations to prevent men being employed by others, through force or threats or any other means beyond the employment of reason or solicitation, are illegal, and if successful will be actionable at the common law.^ ' Sumptuary Lav)s. — Montesquieu thought sumptuary laws essential to prevent extravagance in a republic,* but the notion has long been exploded. They are plain inva- ' Darcy v. Allain, 11 Rep. 84; Broom, Const. Law, 500. See the act of Congress to protect commerce "against unlawful restraints and monopolies." 26 Stat, at Large 209 (July 2, 1890), and "anti- trust " legislation of the States. 2 State )•• Milwaukee Gas Co., 29 Wis. 454 ; New Orleans Gas Co. V. La. Light Co., 115 U. S. 650 , New Orleans Water Works v. Rivers, Id. 674. 3 Slanghter-House Cases, 16 Wall. 36. * Carew /•. Rutherford, 106 Mass. 1 ; Old Dom. SS. Co. v. McKenna, 30 Fed. Rep. 48. See Hornby v. Close, L. R. 2 Q. B. 153. * Spirit of the Laws, b. 7. 248 CONSTITUTIONAL LAW. sions of individual liberty, and therefore are forbidden. Every person must be allowed to judge of his own table, and to dress as he pleases, subject to such police regula- tions as may be established for the preservation of public order and public morals. Women, for example, may be forbidden to go about in the ordinary garb of men, as a necessary regulation against immorality and indecency. ISo every person must be allowed to deal with his prop- ertj' as he pleases, subject to reasonable regulations for the protection of others. He cannot, for example, be compelled against his will to improve his real estate.' Suffrage. — Participation in the suffrage is not of right, but it is granted by the State on a consideration of what is most for the interest of the State. Nevertheless, the grant makes it a legal right until it is recalled, and it is protected by the law as property is. In the following chapter the conditions of suffrage and of the holding of office will be noticed. Section V. — Jdkt Trial in Civil Cases. The Constitution. — The seventh' amendment provides that "in suits at common law, where the value in contro- versy shall exceed twentj' dollars, the right of trial by jury shall be preserved ; and no fact tried by a jury shall be otherwise I'e-examined in any court of the United States than according to the rules of the common law." The right of persons accused of crimes to be tried by jury is secured by another provision, and will be examined in another place. " The trial by jury," it has been said, " is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy." ^ The privilege 1 Gaines v. Buford, 1 Dana (Ky.), 479; Violett v. Violett, 2 Dana (Ky.), 323. 2 Parsons i-. Bedford, 3 g^t. 433, 446. CIVIL BIGHTS. 249 In criminal cases lias been looked upon as a necessary part of the liberties of the people, and a sentiment at- taches to it which will scarcely suffer its value to be ques- tioned. Everj' state constitution preserves it for suits in the state courts, and every new or revised constitution repeats a guaranty of it. Even the common-law require- ment of unanimity in the verdict, which is of more than doubtful value, is retained without inquiry or question, because it has existed from time immemorial. The tribunal was almost peculiar to the common-law courts, and issues joined in other courts went to a jury- only under peculiar circumstances and in exceptional cases. It is important to know, however, that the form of the proceeding will not'determine the right of the party to this method of trial. By the common law in this amendment " is meant what the Constitution denominated in the third article ' law ' ; not merely suits which the com- mon law recognized among its old and settled proceedings, but suits in which legal rights were to be ascej'tained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered ; or where, as in the admiralty, a mixture of public law and of maritime law and equity was often found in the same suit." ^ It is immaterial, therefore, what changes may be made in the forms of action or pleadings, since the nature of the controvesy and the right in dispute must determine the privilege, and not the form of remedy provided.^ But as the amendment only pre- serves the right, and does not extend it, the privilege is demandable of right only in those cases in which the law gave it before.' ' Parsona v. Bedford, 3 Pet. 43.3, 447. 2 Backus V. Lebanon, 11 N. H. 9 ; Tabor v. Cnok, 15 Mich. 322. 8 Rhines v. Clark, 51 Penn. St. 96. As the government has the right to prescribe conditions attending the importation of goods, an importer has no right to have the dutiable value of imports deter- mined by a jury. Auflmordt v. Hedden, 137 U. S. 310. 250 CONSTITUTIONAL LAW- Wixiver. — In criminal cases — at least in cases of felony — the accused cannot waive this privilege, the jury being a necessary part of the tribunal that tries him ; ■^ nor can it be made to depend on any condition, as, for example, upon an appeal from a court that sits without a jury to a court which allows one.^ But civil rights in general may be waived, and a provision for civil cases that trial by jury should be deemed waived unless demanded would seem unobjectionable. It has been held, also, that it suf- ficiently preserves the privilege to make provision by law for jury trial in an appellate court.' Incidents. — The peculiar characteristic of jury trial is this : that the jurj' sit with the judge to try the facts of the controversy, receiving from him the law, and applying it, according as they find the facts to be, in a verdict which embodies both fact and law in a general conclusion. Or, at their option, the jury maj' find the facts speciallj', and report them to the court, who will then determine what judgment the facts require. The court is thus the trier of the law, and the jury are the triers of the facts ; but the judge may nevertheless rightfuUj- express his opinion upon the facts to the jury, who will be at libertj' to accept his conclusions, or to disregard them, as their judgment shall dictate.* The jury have also the legal power to disregard the instructions in matter of lav7, and to render a verdict which the instructions would not warrant ; but their doing so would be misconduct, which the judge should correct by granting a new trial.^ But the judge will not grant a new trial merely because his opinion upon disputed or uncertain facts difl'ers from that of the jury ; ^ though, if there were 1 Cancemi v. People, 18 N. Y. 128. See cases post, Ch. XV. sec. 6; Cooley, Const. Lim., 6th ed., 390-1. 2 Matter of Dana, 7 Benedict, 1 ; Callan v. Wilson, 127 U. S. 540. 2 Many cases are collected in Cooley, Const. Lira., 6th ed., 506, note. Compare Green v. Briggs, 1 Curt. C. C. 311. * Consequa v. Willings, Pet. C. C. 225. '6 Wilkinson v. Greely, 1 Curt. C. C. 63. 6 Stanley f. Whipple, 2 McLean, 35 ; Carr v. Gale, 3 Wood. & M. 38. CIVIL EIGHTS. 251 no evidence fairly tending to support their verdict, it will be erroneous not in point of fact merely-, but in law, and it will be the duty of tlie judge to set it aside, and, if he shall refuse to do so, then for a court of error to reverse it on that ground.^ Rehearings. — The rule that the facts shall not be other- wise re-examined than according to the rules of the com- mon law, is essential to a preservation of the right. It could be of no importance that one should have a jury trial in the first instance, if his adversarj- might then re- move the case to another court to be tried by the judge himself. The finding of the jury upon the facts when no error has intervened to influence it, and no fraud or sur- prise, must be taken as conclusive. When it becomes necessary to re-examine the facts tried bj- a jurj', it must be done by another jury on a new trial. An appellate court examines the facts only so far as may be necessary to ascertain whether any error of law has been committed to the prejudice of the party complaining of the verdict ; " but the trial court maj', in its discretion, grant a new trial where for any reason it is believed justice was not done bj- the first verdict. The seventh amendment applies not only to cases tried by jury in the federal courts, but also to such as are tried bj' jury in the state courts and afterwards removed to the federal Supreme Court for review under its appellate juris- diction.* 1 Insurance Co. v. Rodel, 95 U. S. 232. 2 Hickman v. Jones, 9 Wall. 197. » The Justices v. Murray, 9 Wall. 274. 252 CONSTITUTIONAL LAW. CHAPTER XIV. POLITICAL PRIVILEGES AND THEIR PROTECTIONS. Political Privileges in General. — In the main, political privileges arise under state constitutions and laws, and are left to their protection. The few exceptions will be specified in the pages which follow. Section I. — Citizenship. The Fourteenth Amendment. — The fourteenth article of the amendments declares that "all persons born and naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside." The importance of this provision connects itself with the earnest and violent con- troversy which for more than ten years previous to its adoption had agitated the country respecting the status of colored persons. Such persons, when not enslaved, had been considered citizens in one section of the Union ; and whether they were or were not citizens in the other States had been the subject of very little discussion or considera- tion previous to the disturbing and- exciting events of which the repeal of the restriction upon the extension of slavery, imposed bj- the legislation known as the Missouri Compromise, was most important. In the case in which the federal Supreme Court expressed the opinion that that restriction was unconstitutional, it was decided that a colored person of the African race, whose ancestors were imported into this country and sold as slaves, could not become a member of the political community- brought into existence by the Constitution of the United States, and POLITICAL PRIVILEGES. 263 as such entitled to the rights, privileges, and immunities guaranteed by that instrument to citizens, and that he could not, therefore, as a citizen, bring suits in the courts of the United States.^ To this extent the opinion of the court was authoritative, and was entitled to respect and observance as such so long as it stood unreversed. A verj' large party in the countr}-, however, was not satisfied with ^he reasoning of the court, but protested against it ; and when the government of the country, bj' the election of 1860, passed into the hands of this party, the decision was wholly ignored by the political departments of the govern- ment. It maj' perhaps be said that it was ignored by the judicial department also, since persons of African descent were admitted to practice in the federal courts on the same terms with others.^ But a mere tacit recognition of rights which are still disputed cannot be the most satisfactory settlement of a question so important. A ruling of the executive department under one administration may be set aside under the next. Even an act of Congress might be repealed when another part}' succeeded to power ; or it might be adjudged unconstitutional by the courts, as had been done with the Missouri Compromise. But as the solemn adjudication already had was still standing unre- versed, it obviously constituted a most serious and dan- gerous impediment to the peaceful and full enjojment of rights which it denied. Under these circumstances the propriety and importance of having the controversy set- tled in the most authoritative and conclusive mode are apparent. How Citizenship is acquired. — The fourteenth amend- ment indicates the two methods in which one may become a citizen : first, by birth in the United States ; ' and, second, 1 Scott V. Sanford, 19 How. 393. 2 This was without objection or discussion. 8 This would include, also, birth abroad of children of American citizens temporarily residing or travelling in other countries. Rev. Stat. U. S., § 1993. 254 CONSTITUTIONAL LA"W. by naturalization therein. But a citizen bj' birth must not only be born within the United States, but he must also be subject to the jurisdiction thereof ; and by this is meant that full and complete jurisdiction to which citizens gener- ally are subject, and not any qualified and partial jurisdic- tion, such as -may consist with allegiance to some other government. The aboriginal inhabitants of the country may be said to be in this anomalous condition, so long as the}' preserve their tribal relations and recognize the headship of their chiefs, even when they reside within a State or an organized Territorj-, and owe a qualified alle- giance to the government of the United States. It would obviously be inconsistent with the semi-independent char- acter of such a tribe, and with the obedience yielded b}- them to their tribal head, that they should be vested with the complete rights, or, on the other hand, charged with the full responsibilities of citizens.^ But when the tribal re- lations are dissolved, or when any individual withdraws and makes himself a member of the civilized communitj-, adopting the habits of its people and subjecting himself fully to the jurisdiction, his right to protection in per- son, property, and privilege might well be held to become as complete as that of any other native-born inhabitant.^ The ruling of the Supreme Court, however, is that unless he is naturalized he is not a citizen nor entitled to vote." Naturalization. — Naturalization may be effected , ,/??-s«, by special laws which confer the privilege upon individuals named ; second, by proceedings under general laws, where- by individuals severally renounce any foreign allegiance, and take upon themselves the obligations of citizenship ; third, by the acquisition by the United States of foreign 1 Goodell V. Jackson, 20 Jo]ins (N. Y.) 693, 710 ; McKay v. Camp- bell, 2 Sawy. 118; Ex parte Reynolds, 5 Dill. 394. 2 Story on Const., 4tli ed., § 1933. 8 Elk v. Wilkins, 112 U. S. 94. Under tlie Act of 1887 an Indian to be regarded as a citizen must liave had land allotted to him. State V. Frazier, 44 N. W. Eep. 471 (Neb.). POLITICAL PBIVILEGES. 255 teiriton-, with its people, who thereby become citizens of the United States. In this manner the people brought within the jurisdiction of the Union by the acquisition of Louisiana, Florida, and portions of Mexico, became citi- zens. The second method above named is tliat provided by acts of Congress ; and the first and third must always be exceptional. lioss of Citizenship. — It is declared by act of Con- gress that " expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness," and that " any declaration, instruction, opinion, order, or decision of an}- oflftcer of the United States, which denies, restricts, im- pairs, or questions the right of expatriation, is inconsist- ent with the fundamental principles of the republic." -^ The judicial doctrine had previouslj- been, that no one could expatriate himself without express authority of law.'' It is also provided by act of Congress, that desertion from militarj- or naval service, and going abroad to avoid being lawfully drafted into the same, shall be deemed a voluntary relinquishment and forfeiture of the rights of citizenship.' Citizenship in State and Union. — The fourteenth amendment recognizes the fact that there is a citizenship of the United States, and also a citizenship of the several States, and that the two coexist in the same persons. Both governments owe a dutj- of protection to the persons who are subject to their jurisdiction, and both are entitled to the allegiance of such persons, and may punish breaches of this allegiance. It is impossible to conceive of such a status as citizenship of a State unconnected with citizen- ship of the United States, or of citizenship of the United States within a State unconnected with citizenship of the State. The States cannot naturalize, though they may con- fer special privileges upon aliens ; and the act of natu- 1 Rev. Stat. U. S., § 1999. ^ 2 Kent, 48-50, and notes. » Rev. Stat. U. S., §§ 1996-1998. 256 CONSTITUTIONAL LAW. ralization by the United States is the grant of citizenship within the State where the naturalized person resides. It is only in the Territories and other places subject to their exclusive jurisdiction that there can be a citizenship of the United States unconnected with citizenship of a State.i Abridgment of Priuileges omd Immunities. — In a pre- vious chapter, the section of the Constitution which en- titles the citizens of each State to all the privileges and immunities of citizens of the several States has been ex- amined, and some attempt made to describe those privi- leges and immunities.^ By the fourteenth amendment it is declared that " no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The line of distinction between the privileges and immunities of citizens of the United States and those of citizens of the several States must be traced along the boundary of their respective spheres of action, and the two classes must be as different in their nature as are the functions of their respective governments. A citi- zen of the United States as such has a right to participate in foreign and interstate commerce, to have the benefit of the postal laws, to make use in common with others of the navigable waters of the United States, and to pass from State to State, and into foreign countries, because over all these subjects the jurisdiction of the United States extends, and they are covered by its laws.^ These, there- fore, are among the privileges of citizens of the United States. So every citizen may petition the federal authori- ties which are set over him in respect to any matter of public concern ; may examine the public records of the federal jurisdiction ; maj- visit the seat of government without being subjected to the payment of a tax for the 1 Prentiss v. Brennan, 2 Blatch. 162. The inhabitants of districts within a State over which the State has ceded exclusive jurisdiction to the United States are not citizens of the State. Sinks v. Reese, 19 Ohio St. .306 ; Commonwealth v. Clary, 8 Mass. 72. 2 See p. 195. » Story on Const., 4th ed., § 1937. POLITICAL PRIVILEGES. 257 privilege ; * may be purchaser of the public lands on the same terms with others ; may participate in the government if he comes within the conditions of suffrage ; and may de- mand the care and protection of the United States when on the high seas', or within the jurisdiction of a foreign gov- ernment.^ The privileges suggest the immunities. Wher- ever it is the dutj' of the United States to give protection to a citizen against anj- harm, inconvenience, or depriva- tion, the citizen is entitled to an immunity which pertains to federal citizenship. One very plain and unquestionable immunity is exemp- tion from any tax, burden, or imposition under state laws, as a condition to the enjo^-ment of any right or privilege under the laws of the United States. A State therefore cannot require one to pay a tax as importer, under the laws of Congress, of foreign merchandise,' nor impose a tax upon travellers passing bj- public conveyances out of the State,* nor impose conditions to the right of citizens of other States to sue its citizens in the federal courts.^ These instances sufHciently indicate the general rule. Whatever one ma_y claim as of right under the Constitu- tion and laws of the United States by virtue of his citi- zenship, is a privilege of a citizen of the United States. Whatever the Constitution and laws of the United States entitle him to exemption from, he may claim an immunitj- in respect to.° And such a right or privilege is abridged whenever the state law interferes, with any legitimate operation of federal authoritj' which concerns his interest, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the federal Constitution or laws. But the United States 1 Crandall v. Nevada, 6 Wall. 35. 2 Slaughter-House Cases, 16 Wall. 36. 3 Ward V. Maryland, 12 Wall. 163. * Crandall v. Nevada, 6 Wall. 35. s Insurance Co. v. Morse, 20 Wall. 445. » Slaughtier-House Cases, 16 Wall 36. 17 258 CONSTITUTIONAL LAW. can neither grant nor secure to its citizens riglits or privi- leges wtiich are not expressly or by reasonable implication placed under its jurisdiction ; and all not so placed are left to the exclusive protection of the States.^ Necessity of the Provision. — It may well be questioned whether the provision just considered was necessary. It is certainly not clear that there can exist any privilege or immunity of a citizen of the United States which, inde- pendent of the fourteenth amendment, is not beyond state control. The mere fact that the Constitution and laws of the United States have created a privilege, or given an im- munity, is of itself sufficient to put it bej-ond the reach of unfriendly legislation. The reason is obvious. State laws operate, and can only operate, within the sphere of state sovereignty ; but privileges and immunities of citizens of the United States arise within the sphere of national sover- eigntj', where in express terms the Constitution and laws of the United States are made paramount and supreme.'' It is plain that state laws cannot impair what thej' cannot reach. The right, for example, of every citizen to have the benefit of postal facilities, was as little open to ques- tion before the amendment as it is now. The law must have been then as it is now, — namelj-, that state law is powerless to take awaj-, restrain, or abridge that which the federal authority has lawfully given. And it is imma- terial whether the privilege or immunity exists as an impli- cation under some provision of the Constitution or laws, or is expressly declared and established. The right to visit the national capital is nowhere expressly declared, 1 United States v. Reese, 92 U. S 214 ; United States v. Cruik- siianlcs, 92 U. S. 542 ; Hall c. De Cuir, 95 U. S. 485 ; Kirtland -■. HotcMdss, 100 U. S. 491 ; Presser u. Illinois, 116 U. S. 252 It may be noted that this rule, now well settled, was laid down by a bare majority of the court in the Slaughter- House cases, supra, where four of the judges thought that the Fourteeenth Amendment, properly construed, changed the whole relation of the state and federal govern- ments as to the protection of the civil rights of the citizen. 2 Const., Art. VI. cl. 2; Ableman i.-. Booth, 21 How. 506. POLITICAL PKIVILEGES. 259 but it results from the very nature of free government ; * and for a State to undertake to deny or obstruct the right, ■would as plainly be an intrusion on federal sovereignty, as would an attempt to encroach on the war power, or the power over foreign commerce. Nevertheless this portion of the fourteenth amendment has its importance in the fact that it embodies in express law what before, to some extent, rested in implication merely ; just as in the Consti- tution bills of attainder are forbidden, though without the prohibition they would undoubtedly be incompetent, be- cause of the separation of legislative and judicial author- ity which has been made by the American constitutions. Many abuses of power are forbidden more than once in the federal Constitution, under different forms of expression. Section II. — Suffrage and Elections. Easts of Suffrage. — • During the last quarter of a cen- tury, while the agitation for an enlargement of civil rights has been violent, sentiment has had a great and extraor- dinarj' influence on public affairs in America. It has much affected the discussion of political privileges, and consid- erable numbers have insisted that suffrage was a natural right, corresponding to the right to life and liberty, and equally unlimited. Unless such a doctrine is susceptible of being given practical effect, it must be utterly without substance ; and so the courts have pronounced it.'' In another place it has been shown that liberty itself must come from law, and not in anj' institutional sense from nature ; ' and still less can that come from nature in which all the people cannot possibly participate, and in respect to which, therefore, positive law becomes absolutely essen- tial in order to prescribe qualifications, the possession of 1 Crandall ». Nevada, 6 Wall. 35. 2 Spencer v. Board of Registration, 1 MacArthur (D. C), 169; United States v. Anthony, 11 Blatch. 200. » Ante, pp 234, 235. 26.0 CONSTITUTIONAL LAW. which shall be the test of right to enjoj'ment. A gift by nature must be absolute, and not contingent upon the Slate coming forward afterwards with uncertain and changeable enactments to name conditions, and point out the persons who may enjo}' the bounty. But there is a further objection which is equally insurmountable : suffrage cannot be the natural right of the individual, because it does not exist for the benefit of the individual, but for the benefit of the State itself. Suffrage is participation in the government : in a repre- sentative country it is taking part in the choice of officers, or in the decision of public questions. The purpose is to keep up the continuity of government, and to preserve and perpetuate public order and the protection of individual rights. The purpose is therefore public and general, not private and individual. Whatever sufl['rage is calculated to defeat the general purpose, — whatever, if permitted, would tend to break up the government, to introduce anarchy, and to bring upon the people the innumerable mischiefs which would follow from the destruction of pub- lic order, — is not onlj' inadmissible on reason, but is proved by the consequences which follow to be condemned' by the great Author of government. To say that one whose participation in government would bring danger to the State, and probable disaster, has nevertheless a right to participate, is not onh' foUj' in itself, but it is to set the individual above the State, and above all the manifold interests which are represented by it and bound up in its destiny. Such a doctrine is idle. Suffrage must come to the individual, not as a right, but as a regulation which the State establishes as a means of perpetuating its own existence, and of insuring to the people the blessings it was intended to secure. Suffrage a State Privilege. — The Constitution of the United States, except in particulars specified further on in this chapter, does not in anj- manner intermeddle '.vith state and municipal elections, and thej' are consequentlj' in most POLITICAL PRIVILEGES. 261 respects left exclusively to state regulation and control. States establish for their own people the rules of suffrage, and it is in state constitutions and laws, and in the decis- ions of state courts, that the rules and principles are to be looked for which govern such elections. Suffrage is never a necessary accompaniment of state citizenship, and the great majority of citizens are alwaj's excluded, and are represented by others at the polls. Sometimes, also, suf- frage is given to those who are not citizens ; as has been done by no less than twelve of the States, in admitting persons to vote who, being aliens, have nierelj- declared their intention to become citizens. Congressional Elections. — Under the Constitution each State elects such number of representatives as is appor- tioned to it bj' the laws of Congress, and the qualifications of electors for such representatives are to be the same as those for the most numerous branch of the state legisla- ture.' The State is therefore left to fix these qualifica- tions without any restraint or limitation, except that which is imposed by the fifteenth amendment. The legislature of each State also prescribes the times, places, and manner of holding elections for senators and representatives in Congress ; but Congress is also empowered to make or alter such regulations, except as to the places of choosing senators.^ When the Constitution of the State and the legislation of Congress conflict respecting the times and places when and where votes maj' be cast for the elec- tion of representatives in Congress, the legislation, under the provision of the Constitution last referred to, must control.' Perjurj' in giving testimony in the case of a contested Congressional election is not an offence against a State law,^ but the State may punish illegal voting for Presidential electors, as they are not. federal officers.^ 1 Const , Art. I. § 2. = Const., Art. I. § 4. * Baldwin v. Trowbridge, 2 Bartlett, 46. * In re Loney, 134 U. S. 372. 6 In re Green, 134 U. S. 377. 262 CONSTITUTIONAL LAW. Qualifications of Electors. — As elections are the means whereby the people express their sovereign will, the quali- fications for taking part therein are usually prescribed by constitution, that they may not be subject to continual changes from year to year by legislators of differing views. When the qualifications are once fixed by the constitution, it is not in the power of the legislature to add to or modif3' them, but they must remain until the constitution is re- vised or amended,^ and whoever claims the right must show that he comes within the intent of the existing law.^ A provision giving the right generally to persons possess- ing certain qualifications must be understood as excluding idiots and insane persons, even though not expressly men- tioning them as exceptions, since these persons are inca- pable of exercising legal volition.^ So an unnaturalized Indian is excluded.'* It is competent to provide by law for a forfeiture of the right to participate in elections, as a punishment for con- duct which the law forbids ; but such punishment can only be imposed after trial and conviction. The election judges cannot be authorized for supposed guilt to inflict the for- feiture.^ Regulations of the Franchise. — Even where qualifica- tions are fixed by the constitution, it is competent for the legislature to prescribe by law such conditions to the exercise 1 State V. Williams, 5 Wis. 308 ; Monroe v. Collins, 17 Ohio St. 655 r Rison v. Farr, 24 Ark. 161 ; Randolph v. Good, 3 W. Va. 551 ; St. Joseph, &c. R. R. Co. v. Buchanan Co. Court, 39 Mo. 486; Green V. Shumway, 39 N. Y. 418 ; State v. Baker, 38 Wis. 71 ; Quinn v. State, 35 Ind. 485; People v. Canaday, 73 N. C. 198 ; Brown v. Gro- ver, 6 Bush (Ky.), 1 ; Davies v. McKeeby. 6 Nev. 369 ; McCafferty v. Guyer, 57 Penn. St. 109. " Minor v. Happersett, 21 Wall. 162. 8 Gushing, Legislative Assemblies, §§24,27; Cooley, Const. Lim., 6th ed., 753 ; McCrary, Am. Law of Elections, §§ 4, 50, 73. 4 Elk V. Wilkins, 112 U. S. 94. 6 Huber v. Reilly, 53 Penn. St. 112 ; State v. Symonds, 57 Me. 148 ; Burkett w. McCarty, 10 Bush (Ky.), 758. Compare Delano v. Bartlett, 2 Bartlett, 168. POLITICAL PRIVILEGES. 2G3 ot the elective franchise as shall seem reasonable to protect the privilege, and to prevent impositions and other frauds ; and also to prescribe all proper regulations for receiving and canvassing the votes. One very proper condition is, that every voter, previous to the day of election, shall cause his name to be entered on a registry of voters, which is provided for as a guide to the judges of election in receiving the votes, and that no ballots shall be received, from those not registered. The power of the legislature to require such a registry is settled,* and the voter has no cause for complaint if he fails to register. If a board of registration neglects or refuses to perform its duty as re- quired by law, the members may be compelled to do so b^' mandamus, or they may be punished as public offenders ; but their misconduct cannot entitle unregistered electors to vote unless by law provision is made for such cases.^ If inspectors of election, where thej* have power to deter- mine the voter's qualification, reject a vote, thej' may be liable civilly' as well as criminally. But, if the statute provides that thej- shall receive the vote, if the voter swears to his quahfications, they can exercise no judgment in the matter but must receive the vote.^ /Secrecy in Voting. — Election bj' ballot is now prac- tically universal in this country, and representatives in 1 Hyde v. Brush, 34 Conn. 454; Cusick's Appeal, 136 Pa. St. 459 ; MeCrary, Am. Law of Elections, §§ 7-10 ; Cooley, Const Lim., 6tli ed., 757. But the provisions as to registration must be reason- able. Laws allowing but a short time within which to register or closing the lists some days before election have been held unreason- able. Daggett V. Hudson, 43 Ohio St. 548; State u. Corner, 22 Neb. 265; Owensboro w. Hickman, 14 S. W. Rep. 688 (Ky.); Morris v. Powell, 125 Ind. 281 ; Atty.-Gen. u. Detroit, 78 Mich. 545. In People V. Hoffman, 116 111. 687, a law closing registration three weeks before election was held good. 2 People V. Kopplekom, 16 Mich. 342 : Zeiler v. Chapman, 54 Mo. 602 ; Nefzger v. Railroad Co., 36 Iowa, 642. 8 Ante, p. 162. * Spragins v. Houghton, 8 111. 377; People v. Bell, 119 N. Y. 175. 264 CONSTITUTIONAL LAW. Congress are required to be chosen bj' that method.^ The ballot is provided because it is believed most effectually to protect the elector against improper influences, as it enables him to exercise the right without any person, even the offi- cers of election, having a knowledge for whom his suffrage is given. To fully protect the constitutional right to secrecy as against the importunities, browbeatings, or inquisitive intermeddling of others, it is provided by law in some States that the ballots shall be written or printed on white paper without an}- marks or figures thereon to distinguish one ballot from another ; and where such a regulation exists, all ballots not in conformity with it when cast are to be rejected, and all contrivances of politi- cal managers or election officials. to evade it are illegal.^ Notice of Elections. — Notices of the times and places when and where elections are appointed to be held are generally required to be given by some public officer, in some method designated by law. If the election to be held is exceptional or special, the failure to give this notice must be fatal, even should there be a general attendance of electors, since every one has the same right to partici- pate with all others. But if the election is one which is provided for by public law, and the law itself gives all the particulars of time and place, the failure to give the notice will not defeat the election, since every one is supposed to take notice of what is in the law.* 1 Rev. Stat. U. S., § 27. 2 Williams «. Stein, 38 Ind. 89 ; Opinions of Judges, 45 Me. 602 ; Brisbin v. Cleary, 26 Minn. 107. See cases Cooley, Const. Lim., 6tli ed., T61. The recent State laws, based on the Australian system of voting, which provide for the furnishing by the State of an ofiicirtl ballot which shall alone be used and for the seclusion of the voter while he marks or otherwise prepares this ballot for deposit in the box, are valid. Common Council v. Rush, 82 Mich. 632 ; Talcott «. Philbrick, 20 Atl. Rep. 486 (Conn.) 3 People V. Cowles, 13 N. Y. 350 , People v. Hartwell, 12 Mich. 508; State V. Orvis, 20 Wis. 235 ; People u. Brenahm, 8 Cal. 477. Compare Foster u. ScarfE, 15 Ohio St 532. POLITICAL PRIVILEGES. 265 Ballots, Sufficiency of. — In elections by ballot, the voter must take care that his ballot shall be complete in itself, so that it shall express his intention without resort to extraneous evidence for explanation of apparent am- biguities. The general rules of law do not permit a writ- ten instrument to be varied or added to by parol ; and in case of ballots, the parol evidence would be specially ob- jectionable and dangerous, since public interests of the highest importance depend upon the elections, and the inducements to corruption and perjury would sometimes be enormous. Therefore, if one places upon his ballot two names for one ofl9ce when only one is to be voted for, the ballot, so far as concerns that office, must be rejected for ambiguity, from the obvious impossibility of determin- ing the voter's intention witliout resorting to parol expla- nation. i So, if the voter puts one name upon his ballot where he intends to put another, he will not be allowed to explaip the mistake, but it must be counted as he wrote and deposited it.-^ But the fact that a name is abbreviated should not prevent its being counted where the intent is clear.^ Neither should the fact that the office is not de- scribed with precise accuracy, if the description is such that no doubt concerning it can exist.* And in an}- case where a doubt in applj'ing a ballot perfect in itself is raised upon extraneous facts, it may be removed by showing all such facts surrounding the canvass arid election as would tend to throw light upon it. For example, if two persons of the same name reside within a certain election district, 1 People V Seaman, 5 Denio (N. Y), 409. Compare People v. Saxton, 22 N. Y. 309. 2 Hart V. Evans, 8 Penn. St. 13 ; Fenton v. Scott, 17 Oreg. 189. ^ People V. Ferguson, 8 Cow. (N. Y.) 102 ; Attorney General v. Ely, 4 Wis. 429 ; State v. Gates, 43 Conn. 533 ; Talkington v. Lurner, 71 111. 234. In Wimmer v. Eaton, 72 Iowa, 374, ballots for " F. W " were counted for "E. W." who was a candidate, tliere being no one eligible named " F. W." who was running. Compare People v. Cicotte, 16 Mich. 283 ; Kreitz v. Behrensmeyer, 125 III. 141. 4 People !;. Matteson, 17 III. 167 ; People u. McManus, 34 Barb. 620. 266 CONSTITUTIONAL LAW. and ballots are cast having that name upon them for a specific office, it ma}' be shown, in order to enable the ballots to be applied, that one of these persons was pub- licly known and understood to be a candidate for the office specified, and the other was not.^ Irregularities in Elections. — All the rules of law gov- erning elections should aim at obtaining the full and free expression of the views of those entitled to vote ; and whenever there is reasonable ground for believing that this has been had, a ballot should not be set aside be- cause of mere irregularities. The following are illustra- tions. The erroneous rejection by the judges of election of the ballot offered by a qualified voter ; ^ the accidental substitution of another book for the Bible in the adminis- tration of an oath ; the holding of the election bj' pei'sons who were not officers de jure, but were officers de facto, and acted as such in good faith ; the neglect of the judges to appoint clerks of the election ; the closing at sundown of the outer door of the room in which the election was held, and then permitting the electors within the room to vote, it not appearing that illegal votes were received or legal excluded ; the failure of the judges and clerks to take the prescribed oath of office, thej- being nevertheless de facto officers;^ the neglect of the judges to certify the result within the time fixed by statute ; * or any other irregularity which does not cast uncertainty on the result, or affect the interests of the party complaining of it.* But 1 People V. Cook, 8 N. Y. 67. 2 Newcum v. Kirtley, 1.3 B. Monroe (Ky.), 515. 8 People V. Cook, 8 N. Y. 67 ; Taylor v. Taylor, 10 Minn. 1 12 ; Day V. Kent, 1 Greg. 123. This doctrine has not always been recognized in Congress ; but the cases of Barnes v. Adams {2 Bartlett, 760), and Eggleston v, Strader (2 Bartlett, 897 ), in the House of Representa- tives (1870) support it in approving careful reports of the committee on elections. 4 lix parte Heath, 3 Hill, 42 ; People v. Sackett, 14 Mich. 320. 6 People «. Cook, 8 N. Y. 67, Lanier v. Gallatas, 13 La. An. 175; Dobyns v. Weadon, 50 Ind. 298; Bourland u. Hildreth, 26 Cal. 161; POLITICAL PKIVILEGES. 267 the following are not mere irregularities. The submission of a question to vote in such manner as to exclude a por- tion of those who are entitled to take part in the election,* holding the polls open but forty minutes when the law re- quires three hours, '^ and holding it at a different time or different place from that fixed by law,^ though even in these cases an election maj* be supported if it is made to appear that no one lost his vote as a consequence of the law being disobeyed.^ When an election is contested be- cause of the reception of illegal votes, the effect which shall be allowed to that circumstance must depend very much upon other facts. If the judges have erroneously, but in good faith, received incompetent votes, the elec- tion will not in general be defeated thereby ; ^ but when it can be shown for whom they were cast they will be de- ducted from the count, and the case determined without them.* If, however, they have been received fraudulently, and the whole number is so great that the entire poll is tainted with the illegality^, tlie election in that precinct maj' be set aside altogether, as has frequently been done in Congress.' If a legal vote is wrongfully rejected, it cannot McKinney v. O'Connor, 26 Tex. 5; Pike Co. v. Barnes, 51 Miss. 305 ; Wlieeloclt Election Case, 82 Penn. St. 297 ; Loomis v. Jaukson, 6 W. Va. 613 ; Clilcago v. People, 80 III. 496 ; Reid v. Julian, House of Rep., 2 Bartlett, 822. 1 Attorney-General v. Supervisors, 11 Mich. 63. See People v. Salomon, 46 III. 415; Fort Dodge v. District Township, 17 Iowa, 85 Barry v. Lauck, 5 Cold. (Tenn.) 588. 2 State V. WoUem, 37 Iowa, 131. 3 Dickey v. Hurlburt, 5 Cal. 343 ; Walker v. Sanford, 78 Ga. 165 Williams v. Potter, 114 111. 628. * Dale V. Irwin, 78 111. 170; Steele v. Calhoun, 61 Mass. 556; Far- rington v. Turner, 63 Mich. 27; Simons v. People, 119 111. 617. 5 Ex parte Murphy, 7 Cow. (N. Y.) 153; Judkins v. Hill, 50 N. H. 140 ; Tarbox o. Sughrue, 36 Kans. 225. 6 State V. Hilmantel, 21 Wis. 566 ; Harbaugh v. Cicotte, 33 Mich, 241. ' Howard v. Cooper, 1 Bartlett, 275 ; Dodge v. Brooks, 2 Bartlett, 78 ; Myers v. MofEett, 2 Bartlett, 564 ; Switzer v. Dyer, 2 Bartlett, 777. Sometimes the return of the election has been rejected, and 268 CONSTlTUTIOKAIi LAW. be counted on anj' showing of the intent to cast it for a particular candidate ; ' though if the number rejected is so great that thej' might possiblj' have changed the result, the election may be declared void for that reason.'^ Eligibility to Office. — The Constitution and laws of the United States determine what shall be the qualifications for federal offices, and state constitutions and laws can neither add to nor take away from them. This has been repeatedly decided in Congress, in the case of persons elected to seats therein when provisions in the state con- stitution, if valid, would render them ineligible.* When the law is silent respecting qualifications to office, it must be understood that electors are eligible, but no others.* The question has often been made, what shall be the rule when an meligible person receives a sufficient number of votes to elect him if he were qualified ; and the authorities are greatly divided on the subject. In England under such circumstances the person receiving the next highest number of votes will be declared elected, especially if the ineligibility of the leading candidate was notorious ; ' and some of the American States follow this course.* The de- cided weight of authoritj- in this country, howeVer, is that only those votes counted which can be shown to have been legally cast. Washburn v. Voorhies, 2 Bartlett, 54. Compare Chadwick ». Melvin, Brightly's Election Cases, 251. 1 Renner v. Bennett, 21 Ohio St. 431, 450. • 2 Renner v. Bennett, 21 Ohio St. 431. In Congress, rotes wrong- fully rejected have generally been counted on evidence being given to show how the electors intended to cast tliem. See Delano ;;. Mor- gan, 2 Bartlett, 168. It would certainly be very proper to provide by statute that votes offered and rejected should be marked and pre- served, in order that they might be counted in case it shoiild after- wards appear that there was error in rejecting them. 3 Taney v. Marshall, 1 Bartlett, 167 ; Trumbull's Case, Ibid. 619. * State V. Smith, 14 Wis. 497. ^ French v. Nolan, 2 Moak, 711 ; McCrary, Am. Law of Elections, § 231 ; Cooley, Const. Lim., 6th ed., 780. 6 Gulick V. New, 14 Ind. 93 ; Price <.•. Baker, 41 Ind. 570 ; Hatch- eson V. Tilder, 4 H. & McH. (Md.) 279. POLITICAL PRIVILEGES. 269 in such case the election has failed ; the votes cast for the disqualified person, though not electing him, being enough to show that the people have not intended to choose any other person.^ Such has been the conclusion of both houses of Congress.^ The forfeiture of eligibility to office, it is sometimes declared, shall follow some specified breach of the law ; such, for example, as the giving or receiving a bribe, the sending or accepting a challenge to flght a duel, &c. This renders the act which is thus condemned a publicotfence, and the disqualification becomes a pun- ishment. The determination whether the ofl'ence has been committed involves an inquiry into the law and the facts, and this, being in its essence a judicial inquiry, must be had before a judicial tribunal, and the dlsquahflcation reg- ularly adjudged before the punishment can be inflicted. The determination cannot be left to a canvassing board, or to mere ministerial officers.' Freedom of Elections. — An election fails in its legiti- mate purpose when the electors are subjected to such influ- ences that they .abstain from depositing their ballots at all, or give them unintelligentlj', or from improper and corrupt 1 Decisions to that effect in Wisconsin, Rhode Island, Petjnsyl- vania, Missouri, Michigan, Maine, Louisiana, California, Mississippi, and Georgia are given in Cooley's Const. Lira., 6th ed., 780. And see Stephens v. Wyatt, 17 B. Monr. (Ky.) 547. If the disability merely concerns the holding of the oflBce and is not a disability to be elected, it is enough if the disability is removed before entering upon tlie term. State v. Trumpf, 50 Wis. 103; Privett v. Bickford, 26 Kans. 52. Where an alien who has not declared his intention to become a citi- zen is not an elector and only electors are eligible, such alien cannot hold office by declaring his intention after his election. State v. Sulli- van, 47 N. W. Eep. 802 (Minn.). Contra, Smith v. Moore, 90 Ind. 294. ' Gushing, Leg. Assem., 66. The subject was fully and carefully considered in the contested election case of Smith v. Brown, in the House of Representatives (1868), and the doctrine of the text has been acted upon repeatedly since. 8 Commonwealth v. Jones, 10 Bush (Ky.), 725, approving In re Dorsey, 7 Port. (Ala.) 293, and Huber v. Reily, 53 Penn. St. 112. See -Ex parte Garland, 4 Wall. 383. 270 CONSTITUTIONAL LAW. motives, or under the influence of fear or compulsion. When anj' considerable number of voters are kept from the polls through reasonable fear of personal injury from riotous mobs, or from abuse of legal authoritj', the elec- tion should be deemed altogether void. Congressional elections have often been declared void because of intimi- dation, when there was reason to believe that electors sufficient in number to have changed the result were deterred from depositing tlieir ballots through fear or actual violence. A careful writer of much experience gives the following rules as deductions from the deci- sions in Congress : — "1. If the violence and intimidation have been so ex- tensive and general as to render it certain that there has been no fair and free expression by the great body of elec- tors, then the election must be set aside, notwithstanding the fact that in some of the precincts or counties there was a peaceable and fair election. "2. When there has been an election embracing a num- ber of counties or precincts in which there have been vio- lence and intimidation, enough to exclude from the count one or more precincts or voting places, but not enough to destroy' the freedom and fairness of the election as a whole, such violence will not invalidate the election, nor affect the results of it," unless it be shown affirmatively that but for it the results would have been different. "3. The question must be, has the great body of the electors had an opportunity to express their choice through the medium of the ballot and according to law ; and this fact must be decided in the light of all the facts and cir- cumstances shown in the evidence."-' The presence of a military force at or near the polls of an election, commanded bj- those who favor a particular candidate or party, is almost of necessitj- a menace to the ' McCrary, Am. Law of Elections, § 429. See Hunt v. Sheldon, Houseof Rep. (1869J. POLITICAL PRIVILEGES. 271 electors, and an interference with them in giving their suf- frages freel^',' and in England and some of the States of the Union, even the training of the militia on election day is forbidden by law. It is usual, also, to forbid the service of legal process on election day, lest it be employed as a measure of intimidation to voters who are in debt. Betting upon the results of elections is illegal at common law be- cause it tends to bring improper influences to bear upon the results. So are all contracts which have the same tendency.^ A vote may properly be rejected in a contest over an elec- tion when it appears that it was obtained for a valuable consideration.' Treating electors to intoxicating drinks on the day of election is very commonly prohibited, not only because it is a species of bribery, but also because it tends to unfit the voters for the intelligent discharge of their duties. Canvass and Return of Votes. — Ballots cast are to be canvassed in the various electoral districts or precincts, and a report made of the results. If the officers to be chosen are for that district only, the judges of the election are usually empowered to decide who is elected ; but if. thej- are for a division of the State embracing several elec- tion districts, the local judges will be required to make returns to a canvassing board, authorized to canvass the returns for the whole division, and to declare the election as it appears upon such returns. The general rule in the several States is that these division or district canvassers act in the performance of their duties in a ministerial way only ; that is', that they are to receive the returns tha!t are transmitted to them in apparent confortiiitj' to the law as correct, and they are not to assume the judicial function of 1 McCrary, Am. Law of Elections, §§ 418, 421. 2 Nichols V. Mudgett, 32 Vt. 546 ; Meacham v. Dow, 32 Vt. 721 ; Piatt V. People, 29 111. 54 ; Duke i: Asbee, 11 Ired. (N. C.) 112; Ham V. Smith, 87 Penn. St. 63; Harvey v. Tama County, 53 Iowa, 228; Glover u. Taylor, 38 La. Ann. 634. 3 State V. Olin, 23 Wis. 309, 327 ; State v. Purdy, 36 Wis. 213. 272 CONSTITUTIONAL LAW. going behind them to inquire into facts, but must leave any allegation of error, mistake, or fraud to be inquired into in some regular judicial contest, if the parties concerned shall afterwards see fit to institute it.^ If a return is void on its face, it must of course be rejected ; ^ but it would be almost a matter of course to permit errors of form to be corrected by the local board when the case admitted of it. Forgery in the returns the canvassing board must necessarily inquire into, since a forged return is in law no return at all.' In a few of the States during the unsettled times follow- ing the civil war, returning boards were provided for by law, with powers far surpassing those which any judicial body can exercise ; for the}' were empowered to revise and reject returns on ex parte showing, and thus to proceed without trial and condemn parties not heard. It maj' no doubt be safely assumed that the time when such excessive powers could be created or tolerated has passed awa}'. Canvassing boards in the performance of their duties are, like other ministerial or administrative bodies, under the control of judicial authority, and when they neglect or .refuse to obey the law may be coerced bj' means of the writ of mandamus.* Contesting Elections. — It is no doubt competent to provide by the state constitution that the decisions of the 1 Ex parte Heath, 3 Hill (N. Y.), 42 ; Opinions of Judges, 64 Me. 588; Phelps v. Schroder, 26 Ohio St. 549; People u. HiUiard, 29 111. 413; State o. Governor, 25 N. J. 344; State v. Harrison, 38 Mo. 540 ; Taylor v. Taylor, 10 Minn. 107 ; Switzer v. Dyer, House of Rep. (1870) ; Coll V. Board of Canvassers, 83 Mich. 367. 2 State (-•. State Canvassers, 36 Wis. 498 ; Perry v. Whittaker, 71 N. C. 475. 8 Attorney-General v. Barstow, 4 Wis. 567. The board should correct an arithmetical mistake in the returns. State v. Hill, 20 Neb. 119. * Commonwealth v. Emminger, 74 Penn. St. 479 ; Clark w. McKen- zie, 7 Bush (Ky.), 523; State v. Gibbs, 13 Fla. 55; Bank v. Super- visors, 4 W. Va. 371 ; Kisler v. Cameron, 39 Ind. 488 ; State r. County Com'rs, 23 Kans. 264 ; Simon «. Durham, 10 Oreg. 62 ; State v. Berg, 76 Mo. 136. POLITICAL PKIVILEGES. 273' canvassing board upon the election of anj' offlcers under the State shall be conclusive.'' This, however, is unusual ; and in general the party who claims to have been deprived of an office unjustly by the results of the canvass may have his claim tried in the courts. In some eases it has been held that jur^' trial upon such a claim is matter of right, ^ but this is denied in others ; ^ and there is much reason for saying that the State may provide an^' method that seems most consistent with public policj- for deter- mining who, by the result of an election, is entitled to be recognized as the official administrator of its laws."* It is different when the question is one of the forfeiture of an office ; for when once acquired, the incumbent has prop- erty rights in it. Legislative elections are determined by the body for a seat in which the election is had. This is expresslj' pro- vided by the Constitution in the case of the two houses of Congress,^ and the judiciary can in no manner interfere with their conclusions. The evidence in a legislative con- test is usually taken by committees, and the case decided on the committee's report. On general principles a case once decided should be considered closed forever.^ Fifteenth Amendment. — By the fifteenth article of the amendments it is provided that " the right of citizens of the United States to vote shall not be denied or abridged 1 Grier v. Shackleford, Const. Rep. (S. C.) 642; Batman v. Me- gowan, 1 Met. (Ky.) 533; State v. Marlow, 15 Ohio St. 114; People V. Goodwin, 22 Mich. 496 ; Baxter v. Brooks, 29 Ark. 173. 2 State V. Bennett, 2 Ala. 140; People w. Railroad Co., 57 N. Y. 160. " Ewing V. Fuller, 43 Penn. St. 384 ; Commonwealth v. Leech, ^4 Penn. St. 332 ; State v. Johnson, 26 Ark. 281 ; State v. Lewis, 51 Conn. 113. 4 Kennard v. Louisiana, 92 U. S. 480. 5 Const., Art. I. § 5. Provisions for contested elections to Con- gress are made by Rev. Stat. U. S. ch. 8. 8 Mr. McCrary, in the sixth chapter of hia treatise on the Law of Elections, has gone at some length into the evidence receivable by legislative committees. 18 274 CONSTITUTIONAL LAW. by the United States, or by any State, on account of race, color, or previous condition of servitude." Ttiis provision gives to the freedmen and other colored persons the right to impartial consideration in the law of suffrage in the sev- eral States. The second clause of the fourteenth article was intended to influence the States to bring about b3' their voluntary action the same result that is now accomplished by this amendment. It provided that when the right to vote was denied to any of the male inhabitants of a State, being twenty-one years of age and citizens of the United States, or any way abridged except for pai'ticipation in ciime, the basis of representation in Congress should be reduced in the proportion which the number of such male citi- zens should bear to the whole number of male citizens twentj'-one years of age in such State. Bj' this, the pur- pose was to induce the States to admit colored freemen to the privilege of suffrage bj- reducing the representation and influence of the States in the federal government, in case they refused. No opportunity occurred for testing the efficacy of this plan previous to the adoption of the fifteenth article, and it cannot therefore be affirmed whether it would or would not have been successful. Im- portant questions, however, may still arise under it. The provision is general ; it is not limited to freedmen, but it applies wherever the right to vote is denied to male citi- zens of the proper age, or is abridged for other cause than for participation in crime. The State of Connecticut de- nies the right of suffrage to all who cannot read, and Massachusetts and Missouri to all who cannot both read and write ; and many of the States admit no one to the privilege of suffrage unless he is a tax-payer. So in the majority of the States a citizen absent therefrom, though in the public service, cannot vote, because the State re- quires as a condition the personal presence of the voter at the polls of his municipality. Possibly it may be said, in respect to such cases, that the representation of the State POLITICAL PRIVILEGES. 275 should be reduced in proportion to the number of those who are excluded because tbej cannot read and write, or do not pay taxes, or are absent. It is not likely, however, that any such position would be sustained. To require the payment of a capitation tax is no denial of suffrage ; it is demanding only the preliminary performance of pub- lic duty, and may be classed, as may also presence at the polls, with registration, or the observance of any other preliminary to insure fairness and protect against fraud. Nor can it be said that to require ability to read is any denial of suffrage. To refuse to receive one's vote be- cause he was born in some particular countrj- rather than elsewhere, or because of his color, or because of any natu- ral quality or peculiarity which it would be impossible for him to overcome, is plainly a denial of suffrage. But abil- ity to read is something within the power of anj- man ; it is not difficult to attain it, and it is no hardship to require it. On the contrary, the requirement onl^- by indirection compels one to appropriate a personal benefit he might otherwise neglect. It denies to no man the suffrage, but the privilege is freelj- tendered to all, subject only to a condition that is beneficial in its performance, and light in its burden. If a property qualification, or the payment of taxes upon property when one has none to be taxed, is made a condition to suffrage, there may be room for more question. Discriminations in Naturalization. — Although the fif- teenth amendment forbids discriminations founded on race, color, &c., as between citizens, it does not forbid dis- criminations in the naturalization laws. Indeed, at the time when this amendment was adopted onlj' white persons were permitted to become citizens by naturalization, and the amendment to the laws since made only extends the privilege to persons of African descent.' Measons for the Amendment. — The experiment of 1 Rev. Stat. U. S. § 2169; Act of July 14, 1870. 276 CONSTITUTIONAL LAW. impartial suffrage, though confessedly under the circnm< stances one of much danger, was entered upon under the influence of two sets of reasons ; the first of which had in view the interest of the colored people, and the second contemplated the general interest of the country. The experiment, it was believed, would benefit the colored race, first because it would give to them importance, se- cure to them respect, and protect them against unfriendly action or legislation ; and, second, because it would be to them an educational process of the highest importance, not only as it would incite them to prepare themselves for the duties of citizenship, but as it would accustom them to the practical performance of such duties. An opinion has been expressed that these were the real purposes of the amendment.^ But as all rules of suffrage contemplate the benefit of the state rather than that of in- dividuals, we maj' assume that the advantage to individ- uals was onlj- a secondary purpose. The reasons why the change was thought to be important on pubUc grounds were, first, that unless the ballot was given to the freedmen the government of the Southern States must for a consid- erable time be in the hands of those lately in rebellion, and who might be expected not to co-operate m government heartily and cordially with those from whose political as- sociation they had so strenuously endeavored to break away ; and, second, that the existence in the political com- munity of a great body of citizens, against whom the laws discriminate in a particular which makes the discrimination a stigma and a disgrace, must always be an occasion of discontent, disorder, and danger. The experiment, however fraught with danger, was di- rectly in the line of others which began with the organ- ization of the government. All changes had been in the direction of enlarging the basis of suffrage, and this amendment did not originate the embarrassments and > Hunt, J., in United States v. Reese, 92 U. S. 214, 217. POLITICAL PRIVILEGES. 277 dangers attending unintelligent participation in elections, but only added to them. Legislation. — The fifteenth amendment empowers Con- gress to enforce it by appropriate legislation. It is un- questionable that the amendment is self-executing to this extent, that all laws and all provisions of state constitu- tions which conflict with it were at once annulled. Con- gressional legislation could onl}' be needed to prevent the impartial rule of the Constitution being nullified hy failure of officers to give effect to it. Congress has made elaborate provisions for protecting the political rights which are given by the fifteenth amend- ment, and also the right to the equal protection of the laws, secured by the fourteentb amendment. The most impor- tant of these are the provisions for the appointment by the United States Circuit Courts of supervisors to watch and oversee the registration of voters and the elections for rep- resentatives iu Congress ; for the appointment of deputy United States marshals to assist in the preservation of order at the elections, and to aid the supervisors in the performance of their duties ; for the punishment as crimes of such acts as tend to invade, hinder, or obstruct the en- joyment of the political rights which the amendments were intended to confer and secure ; and for the conferring upon the federal courts of jurisdiction in election cases where a federal right, privilege, or immunity is in question.^ The legislation thus adopted has received the attention of the Supreme Court, and the following general principles have been laid down : — 1. The Constitution of the United States confers the right to vote upon no one. That right comes to the citi- zens of the United States, when they possess it at all, under state laws, and as a grant of state sovereignty. But the fifteenth amendment confers upon citizens of the United States a new exemption; namely, an exemption 1 Eev. Stat. U, S., ch. 24 and 26. 278 CONSTITUTIONAL LAW. from discrimination in elections on account of race, color, or previous condition of servitude. This exemption the United States may protect b3' appropriate legislation. 2. The power in Congress to legislate at all on the sub- ject of voting at state elections rests upon the fifteenth amendment. The whole subject was in the hands of the States before, and Congress obtained a right to intervene only by the amendment, and to the extent that should be needful to protect the exemption to which citizens of the United States thereby became entitled. 3. The third and fourth sections of the act of May 31, 1870, which undertook to punish election oflScers and others for denying or abridging the right of citizens to vote, not being limited in their operation to unlawful dis- criminations on account of race, color, or previous condi- tion of servitude, were bej'ond the limit of the fifteenth amendment, and therefore bej'ond the power of Congress. Parties cannot be punished under them even though their acts may have contemplated or accomplished the uncon- stitutional discrimination.' * Section III. — The Right of Assembly and Petition. TTie Constitution. — The first amendment to the Consti- tution further declares that Congress shall make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of griev- ances. Two rights are protected by this provision : the right of the people to assemble themselves together, and the right of petition ; but they are protected as against federal action onh'.^ The People. — When the term " the people " is made use of in constitutional law or discussions, it is often the case 1 United States v. Reese, 92 U. S. 214 ; United States v. Cruik- •hanks, 92 U. S. 542. See Ex parte Siebold, 100 U. S. 371. 2 United States v. Cruikshanks, 92 U. S. 542. POLITICAL PRIVILEGES. 279 that those only are intended who have a share in the gov- ernment through being clothed with the elective franchise. Thus, the people elect delegates to a constitutional con- vention, and determine by their votes whether the com- pleted work of the convention shall or shall not be adopted ; the people choose the officers under the Constitution, and so on. For these and similar purposes the electors, though constituting but a small minority of the whole body of the community, nevertheless act for all, and, as being for the time the representatives of sovereignty, they are considered and spoken of as the sovereign people. But in all the enumerations and guaranties of rights the whole people are intended, because the rights of all are equal, and are meant to be equall}' protected. In this case, there- fore, the right to assemble is preserved to all the people, and not merel}- to the electors, or to any other class or classes of the people. Right to Assemble. — The right to assemble may be important for religious, social, industrial or political pur- poses ; but it' was no doubt its political value that was in view in adopting the amendment. To assemble for re- ligious purposes is a part of the religious libe,rty of the people, and required no additional protection. Social meetings and industrial meetings are seldom likely to be disturbed by the authorities, except when they are believed to contemplate public disorder, and are in open defiance of the law ; but there must be an actual breach of the law before they can be intermeddled with. Individuals may perhaps render themselves liable to arrest by threats, but these only constitute individual misconduct. A political meeting by electors may have one purpose, and that by non-electors another. The former will usually meet for some purpose preparatory to the exercise of the political franchise, such as to hear addresses, select candi- dates for their suffrages, and the like, or perhaps to petition those for the time in authority in respect to something in which they ma}' take special interest. The non-electors 280 CONSTITUTIONAL LAW. may also meet for petition or remonstrance, ot, on the other hand, they may meet to express their sense of wrong at bemg excluded from political privileges, and to demand a right to participate with others. A demand for equality of political privilege by a disfranchised class, persistently made and pressed, has often made itself heard, and the constitution of the land has been altered in response to it. Still more often statutes have been enacted, modified, or repealed, in deference to the appeals of those who were not allowed the right to vote ; and perhaps the right of as- sembly on their part is more important to the state than the same right on the part of those who may make them- selves heard through their direct participation in the government. The right of assembly always was, and still is, subject to reasonable regulations by law. Parliament has some- times been compelled to interpose strict regulations, when a great and tumultuous body of people threatened to ap- pear at its doors to present a demand for a change in the law. Right to Petition. — The right to petition is not co- extensive with the right to assemble ; for in its nature it can have no place in merely social affairs, though it has a limited range in religious and industrial organizations. Petition is for the redress or prevention of grievances, and is addressed to some person or body having, in respect to the matter in hand, superior authority. It is a generic term, however, and applies to all recommendations to office or public position or privilege, as well as to remon- strances against them, and to appeals of every sort, and for every purpose, made to the judgment, discretion, or favor of the person or body having authority in the premises.' A petition is, nevertheless, merely a privileged publica- ■> Kershaw o. Bailey, 1 Excli. 743; Bradley u. Heath, 12 Pick (Mass ) 163. POLITICAL PRIVILEGES. 281 tion, and the right to be heard b\- means of it may be so abused as to talie awa}' the privilege. One must not re- sort to it for the purpose of visiting his malice upon others, through the publication of false charges ; but when the occasion is proper for petition, good motives in presenting it will be presumed, and the fact that it contains false and injurious aspersions of character will not make out a right of action, but malice in the petitioner must be established also.' The petition must be for something within the au- thorit}- of the person or body addressed to grant, or must in good faith be supposed to be ; •' and when it is, it will be protected while circulating for signatures, as well as after it has been presented.^ But if. a false charge is merely put in the form of a petition, without the intent to present it, it is not within the privilege.* Section IV. — The Right to Keep and Bear Arms. The Constitution. — By the second amendment to the Constitution it is declared that " a well-regulated mili- tia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." The amendment, like most other provisions in the Con- stitution, has a history. It was adopted with some modi- fication and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, ' Gray v. Pentland, 2 S. & R. (Penn.) 23, Howard u. Thompson, 21 Wend. (N. Y. ) 319 2 See Fairraan v. Ives, 5 B. & Aid. 642. ' Vanderzee v McGregor, 12 Wend. (N. Y.) 545. ♦ State (, Burnhara, 9 N. H. 34. 282 CONSTITUTIONAL LAW. and as a necessary and efficient means of regaining rights when temporarily- overturned by usurpation.^ The Eight is General. — It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia ; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the per- formance of military duty, and are officered and enrolled for service when called upon. But the law may make pro- vision for the enrolment of all who are fit to perform miU- tary duty, or of a small number only, or it may wholly omit to make any provision at all ; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the peo- ple, from whom the militia must be taken, shall have the right to keep and bear arms , and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia ; for to bear arms implies something more than the mere keeping ; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use ; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order. Standing Army. — A further purpose of this amend- ment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing armj' is con- demned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them. What Arms may be kept. — The arms intended hj the 1 1 Tuck. Bl. Com., App. 300. POLITICAL PEIVILEGES. 283 Constitution are such as are suitable for the general de- fence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly indi- vidual encounters may be prohibited.' Section V. — Freedom of Speech and op the Press. The Constitution. — The first amendment to the Consti- tution further provides that Congress shall make no law abridging the freedom of speech or of the press. What is first noticeable in this provision is that it undertakes to give no rights, but it recognizes the rights mentioned as something known, understood, and existing, and it forbids any law of Congress that shall abridge them. We are thus referred for an understanding of the protection to the pre-existing law ; and this must either have been the com- mon law, or the existing statutes of the States. The statutes, however, will be found to be nearly silent on this important subject, and the common law must be our guide. Freedom of the Press. — De Lolme, who wrote upon the Constitution of England just before the meeting of the Constitutional Convention, and who undertook to gather from the common law the meaning of this among other principles of liberty, has expressed his conclusion thus : " The liberty of the press as established in England con- sists in this, that neither the courts of justice, nor any other judges whatever, are authorized to take notice of writings intended for the press, but are confined to those which are actually printed, and must in these cases pro- ceed by the trial by jury."^ Mr. Justice Blackstone adopted this view as undoubtedly correct,' and in this country it has been accepted as expressing the views of those who framed and adopted this amendment.^ If it ' Andrews v. State, 3 Heisk. 165, found also with notes in 1 Green'a Cr. Rep. 466, and 8 Am. Rep 8 ; State v. Shelby, 90 Mo 302. 2 De Lolme, Const, of Eng , ch. 10. » 4 Bl. Com., 151. * Rawle on Const., ch 10; 2 Kent, 17; Story on Const., § 1889; Commonwealth v Blanding, 3 Pick. (Mass.) 304, 313. 284 CONSTITUTIONAL LAW. expresses their views fully, we must conclude that the amendment is aimed only at such censorship of the press as had sometimes been exercised in England, and to some extent in the Colonies also, and that, while forbidding this, and leaving every one to publish what he might please, it left him, at the same time, to such responsibility for his publications as the law might provide. It seems more than probable, however, that the con- stitutional freedom of the press was intended to mean something more than mere exemption from censorship in advance of publication. Such censorship had never been general in the Colonies ; it did not exist at all at the time of the Revolution, and there was no apparent danger of its ever being restored. To forbid it, therefore, and especially just at a time when the people had been taking a larger share in the government into their own hands, and when the command would be laid on their own representatives, would appear to savor somewhat of idle ceremony. But the history of the times shows that the people believed a right of publication existed which might be invaded and abridged by oppressive prosecutions, and by laws which admitted the liberty to publish, but enlarged be3-ond reason the sphere of responsibilitj' ; and the evils they feared had no necessary connection with any established or threat- ened censorship. Nor could any valuable purpose be ac- complished by introducing in the Constitution a provision which should forbid merely* a previous supervision of in- tended publications, if the law might be so made, or so ad- ministered, as to inflict punishment for publications which might be not only Innocent, but commendable. The citi- zen might better have the arm of the government inter- posed for prevention, than reached out afterwards to inflict penalties ; his just freedom would be restrained in the one case as well as in the other. Light may be thrown upon the intent by a consideration of the purposes which the enjoyment of the right sub- serves. The press is a public convenience, which gathers POLITICAL PRIVILEGES. 285 up the intelligence of the day to lay before its readers, notifies coming events, gives warning against disasters, and in various ways contributes to the happiness, comfort, safety, and protection of the people. But in a constitu- tional point of view its chief importance is, that it enables the citizen to bring any person in authority, any public corporation or agenc3^, or even the government in all its departments, to the bar of public opinion, and to compel him or them to submit to an examination and criticism of conduct, measures, and purposes in the face of the world, with a view to the correction or prevention of evils ; and also to subject those who seek public positions to a like scrutiny for a like purpose. These advantages had been fully realized and enjoyed bj' the people during the revo- lutionarj- epoch ; the press had been the chief means of disseminating free principles among the people, and in preparing the country to resist oppression ; and its powers for good in this direction had appeared so great as to cast its other benefits into the shade. It is a just conclusion, therefore, that this freedom of public discussion was meant to be fully preserved ; and that the prohibition of laws im- pairing it was aimed, not merely at a censorship of the press, but more particularly at any restrictive laws or ad- ministration of law, whereby such free and general dis- cussion of public interests and affairs as had become customary in America should be so abridged a-s to deprive it of its advantages as an aid to the people in exercising intelligently their privileges as citizens, and in protecting their liberties. The freedom of the press may therefore be defined to be the liberty to utter and publish whatever the citizen may choose, and to be protected against legal censure and pun- ishment in so doing, provided the publication is not so far injurious to public morals or to private reputation as to be condemned by the common-law standards, by which de- famatory publications were judged when this freedom was thus made a constitutional right. And freedom of speech 286 CONSTITUTIONAL LAW. corresponds to this in the protection it gives to oral publications.* Blasphemous and indecent publications, and the exhibi- tion of indecent pictures and images, were always punish- able at the common law, and their punishment may be provided for by Congress in any territory under its exclu- sive control. Libellous written, printed, or pictorial attacks upon individuals, maliciously made, were also criminal ; and if, in respect to these offences, the common law should be found defective, statutory law may supply the defects, — not, however, enlarging the general scope of liabilitj'. Be- sides the criminal, there was always a civil responsibilit}-, in the case of any false and malicious publication calculated to disgrace or injure an individual, and damages might be recovered by the party wronged, whether the publication was made by writing or print, or was merel}' oral. These rules are consistent with a just freedom, and thej' remain undisturbed. The cases which are impoi'tant in a constitutional point of view are those which are said to be privileged ; by which is meant that the party is protected against respoii- sibilitj', either civil or criminal, notwithstanding' his publi- cation may prove both unfounded and injurious. There are two classes of privilege, the one absolute, or where the protection is complete and perfect, and the other con- ditional and dependent on motive. Some of these cases rest on grounds of private confidence merely, and are not important here ; but others rest on public and general reasons. Cases of Absolute Privilege. — One of these is provided for specially in the clause of the Constitution which de- clares that members of Congress, for any speech or debate in either house, shall not be questioned in any other place.'' Another relates to what is said by a witness in the course 1 Cooley, Const. Lim., 6th ed., 518. 2 Const., Art. I. § 6. POLITICAL PRIVILEGES. 287 of judicial proceedingSv and which is not allowed to be made the ground of a civil action, however false and ma- licious it may be, though the State may punish the per- jury.^ A like protection is thrown around what a juror ma}' say to his fellows in the jury-room, concerning the parties to the case submitted to them, or concerning those who may have given evidence therein.'^ Complaints for the purpose of bringing a supposed offender to trial, and the preliminary information on which the officers maj' act in originating proceedings have a similar privilege,' and so do pleadings and other papers in the progress of liti- gation, where in their statements they do not depart from the matter in controversy.* The Executive of the United States and the governors of the several States are exempt from responsibility for their official utterances, and so are all judges of courts, and all officers performing functions in their nature judicial, while acting within the limits of their jurisdiction.^ The party to a cause, summing it up to jury or court, must have the utmost libertj' of dealing with the actions, conduct, and motives of the opposing party and the witnesses, and the law protects this liberty and extends it to his counsel also ; and the latter, so long as he keeps to the case in hand and does not wander from it for the purpose of detraction and abuse, may freely urge in the interest of his client what he believes the case demands.^ 1 Marsh v. Ellsworth, 50 N. Y. 309 ; Terry y Fellows, 21 La. Ann. 375 ; Verner v. Verner, 64 Miss. 321. ^ Dunham v. Powers, 42 Vt 1. 3 Dawkins u. Lord Pawlet, L. R. 5 Q. B. 94. * Garr v. Selden, 4 N. Y. 91 ; Strauss v. Meyer, 48 111. 385; Wilson V. Sullivan, 81 Ga. 238; Runge v. Franklin, 72 Tex 585; Dada k. Piper, 41 Hun, 254 ; Bartlett v. Christhilf , 69 Md. 219 6 Townshend, Slanderand Libel, § 227 ; Cooley on Torts, 2nd ed. 250. 8 Hoar V. Wood, 3 Met. (Mass.) 193; Maulsby w. Reifsnider, 69 Md. 143. In England counsel stand on the same ground as witnesses and judges, and their statements are absolutely privileged. Munster V. Lamb, 11 Q. B. D. 588. 288 CONSTITUTIONAL LAW. Libels on Governmetit. — At the common law it was a criminal offence to publish anything against the constitu- tion of the country or the established order of govern- ment. This was upon the ground that the tendency of such publications was to excite disaffection with the gov- ernment, and thus to induce a revolutionary spirit. But a calm and temperate discussion of public events and measures was always in theory allowed, and every man had a right to give to every matter of public importance a candid, full, and free discussion. It was therefore only when a publication went beyond this, and tended to excite tumult, that it became criminal. But as the government itself will institute and conduct the prosecutions, and as the offence will consist in a criticism of the constitu- tion and S3'stem of government as the authorities admin- ister them, it is never likely that anything very effectual in criticism will be found by the prosecution to be either calm or temperate. The government prosecutions for libel in England have been so manifestly- and notoriously unjust, unreasonable, and oppressive, that one advocate won a great name and a great place in the regard of the people in resisting them ; and at length public sentiment Compelled their abandonment. A publication in criticism or condemnation of the government or Constitution of the United States is not punishable at the common law, for the reason that the United States as such has no com- mon law, and can therefore punish as crimes only those acts which are made punishable by express statute." Nor is it by any means clear that such publications could be made crimes by legislation. The right of the people to change their institutions at will is expressly recognized by federal and state constitutions, and this implies a right to criticise, discuss, and condemn, and a right if possible to bring the people to the point of consenting to anj- change short of the abolition of republican institutions. It is 1 United States v. Hudson, 7 Cranch, 32, POLITICAL PRIVILEGES. 289 believed that the sedition law of 1798 went to the veiT verge of constitutional authority, if not beyond it;^ and the entire failure to re-enact any similar legislation since is satisfactory evidence that it is regarded as unnecessary, if not unsound in principle. But conspiracies to overturn the government by force are always punishable, and sedi- tious publications are usually a part of the res gestce of such offences. Reports of Trials, dbc. — Full and fair reports of what takes place publicly in legislative bodies and their com- mittees, and in the courts high and low, are also absolutely privileged. The citizen has a right to be present at such proceedings, but the reasons which throw them open to spectators justify publication for the benefit of those who cannot or do not attend. It is only by publicity of pro- ceedings that those to whom the liberty and civil and political rights of their fellows are submitted, can be kept under a due sense of responsibility, and within the limits of the rules that should govern their conduct.^ But the report must be confined to the proceedings themselves, and must not indulge in defamatory observations, headings, or com- ments.' The privilege, however, has never been extended to ex parte proceedings or examinations, the reason being that they tend to mislead the public rather than to en- lighten it.^ One may publish these, but at the peril of being held responsible if any untrue statement made in the publication proves injurious to the standing, reputation, or business of individuals. ^ The prosecutions under this law, reported in Wharton's State Trials, pp. 333, 659, 684, and 688, are very instructive. They did more to excite disaffection to the government than all the misconduct complained of. 2 Hoare v. Silverlocfc, 9 C. B. 20 ; Gazette Co. v. Timberiake, 10 Ohio St. 548. The publication before a hearing of the contents of a paper filed is not privileged. Cowley v. Pulsifer, 137 Mass. 92. 8. Pittock V. O'Niel, 63 Penn St. 253; Storey v. Wallace, 60 111. 51; Hayes « Press Co., 127 Pa. St. 642. * Usher v. Severance, 20 Me. 9. 19 290 CONSTITUTIONAL, LAW. Cases conditionally Privileged. — In cases of absolute privilege the motive of the party making the publication is not suffered to be gone into, because the public benefit to be accomplished in the exercise of the privilege cannot be fully had without the most full and absolute exemption from civil responsibility. But there are some cases which are privileged in which it is perfectly reasonable to require that the privileged party shall publish only what he be- lieves, and that the occasion of the publication shall be such as to justify it if true. The following are such cases. Criticism of Officers and Candidates. — When one offers himself as a candidate for a public position, he voluntarily puts in issue his fitness for the place, and those who question it have a right to be heard before tiie people, and to give their reasons freely. When one holds a public oflfice the issue oflfered is still broader, for the manner in which official duties have been performed comes in with his personal qualities, character, and habits, and may be discussed as something in which the pubhc are concerned. Any citizen may speals freely, not only what he knows, which bears upon the subject, but also what he believes and what he suspects, provided he has only the public interest in view and does not act maliciously. It must, be said, however, that, while the authorities have conceded this rule, they have in some cases applied it with so little liberality as nearly to destroy its value.'' Discussion of Public Affairs. — A like liberty of com- ment and discussion is allowed upon subjects in which the general public may reasonably be supposed to have an in- terest, and the discussion will be privileged if conducted within the bounds of moderation and reason, though indi- viduals maj' incidentall}' suffer therefi'om.^ The English 1 King V. Root, 4 Wend. (N. Y.) 113 ; Lewis v. Few, 5 Johns. (N. Y.) 1 ; Cooley, Const. Lim., 6th ed., 5"29-542. See Burke v. Mascarich, 81 Cal. 302 ; Randall v. Evening News Ass., 79 Mich. 266. 2 Wason V. Walter, L. R. 4 Q. B. 73 ; Kinyon v. Palmer, 18 Iowa. 377. POLITICAL PRIVILEGES. 291 authorities limit this privilege to cases of general, and not merely local interest,^ though the reason for anj- distinction between them is not very apparent. But in matters of pri- vate interest, such as the affairs of a private corporation, there is no such liberty of comment, except by and among the parties concerned.^ Criticisms of£ooks, tfcc. — The publication of books, magazines, pamphlets, &c. is an assumption that thej- are fit to be read by the public, useful, and therefore proper for publication ; and whoever disputes this may freely publish his reasons, doing so in good faith, and taking care not to make his criticisms of the publication an excuse for assail- ing the author.' 7%e Truth as a Protection. — When the party com- plaining of an injurious publication brings suit for the re- covery of damages, the truth of the publication is a complete defence, whether the case was or was not one of privilege. If nothing but the truth is published of an individual, it is no ground for the recover^' of damages by him that the truth is so derogatory to his reputation that it injures him. But written or printed slander may be the ground for a criminal prosecution also, and in criminal prosecutions a different principle applies. The injurj' then complained of is an injury to the public ; and when private reputation and conduct are needlessly dragged before the public to the disturbance of the peace of society, the pub- lic injur3' maj' be as great when only the truth is spoken, as when the publication is wholly untrue. The truth, there- fore, is not in all cases a defence to a prosecution for crim- inal libel, but the publisher, in addition to the truth, must show that he made the publication with good motives and for justifiable ends. This is recognized in the constitu- 1 Purcell V. Lawler, L. K. 1 C. P. D. 481 ; Gassett v. Gilbert, 6 Gray (Mass.), 94. ii Wilson V. Fitch, 41 Cal. 363. » Reade v. Sweetzer, 6 Abb. Pr. (n. s.) 9, note; Merivale v. Car- son, L. E. 20 Q. B. D. 275. 292 GONSTITUTIONAL LAW. tional provisions of the several States, which declare ia Substance that the truth shall be a complete defence in all prosecutions for libel, provided it was published with good motives and on justifiable occasion. If the publication was one proper to bo placed before the public, either for the accomplishment of some commendable public purpose, of for warning and protection to the public or to individuals, or even for the amendment of the person arraigned, the proper motives maj^ be inferred ; ■" but where none of these things is apparent the burden of proof is on the publisher to establish good motives and show a just occasion. But blasphemous and indecent publications could not be jus- tified at all, since the necessary tendency must be evil. And the fact that the publication was merely the repe- tition of a charge made by another is by itself no de- fence whatever.^ The Jury Judges of the Law. — A provision in state constitutions that the jurj- shall be judges of the law in criminal prosecutions for libel is common, and sometimes the provision is broader, and embraces all suits for libel and slander. These provisions had their occasion in early rulings of the courts, that the jurj^ in suits for defamation of character must confine their attention to the fact of publi- cation, and must receive the opiliion of the court on the libellous or innocent character of the publication as conclu- sive. This doctrine was overruled bj' statute in England, and the jur3- are now permitted to judge of the whole case, and to decide, not merelj' upon the responsibilitj- of the publication, but upon the animus with which it was made, and whether within the rules of law the publication is libellous. The instructions of the judge upon the law be- come under this rule advisory merely, and the jury may disregard them if their judgment is not convinced.* 1 State V. Burnham, 9 N. H. 34. 2 Regina v. Newman, 1 El. & Bl. 268. 8 The relations of court and jury under these provisions is well discussed in Drake v. State, 20 At!. Rep. 747 (N. J.), where it is held POLITICAL PRIVILEGES. 293 Publication of News. — No privilege has ever been accorded to the publishers of mere items of news except to this extent : that when the publication is made in good faith, in the ordinai-y course of business, and without in- tent to defame, the party injured will be restricted in his recovery to the actual damages.^ Generallj' in suits for defamation of character the jury have a large discretion in awarding what are called exemplar}- damages. Meaning of " the Press." — -The freedom of the press is not limited to any particular form or method of publica- tion, but it extends to all modes of putting facts, views, and opinions before the public. Books, pamphlets, circu- lars, &c. are therefore as much within it as the periodical issues. that their purpose is to give the jury the right to render a general verdict upon the whole matter put in issue ; or in other words, to determine the law and the tact. 1 Daily Post Co. u. McArthur, 16 Mich. 447; Perrett v. N. O. Times, 25 La Ann. 170. A statute embodying this rule as applied to newspape"? has been upheld in Allen v. Pioneer-Press Co., 40 Minn. 117. But the contrary ruling was made in Park v. Detroit Free Press Co-. ?2 Mich. 660, on the ground that it was class legislation. 294 CONSTITUTIOKAL LAW. CHAPTER XV. PROTECTIONS TO PERSONS ACCUSED OF CRIME. Section I. — Legislative Adjudications. ^ General Considerations. — It is shown in a previous chapter that the people, by creating separate legislative and judicial departments of the government, by implica- tion forbid the former from exercising any powers that properly belong to the latter. Under this principle it might well be held that the power in the legislature to deal with crimes and their punishments, otherwise than by the establishment of general laws by which conduct should be judged in the future, was by implication forbidden. Even without the aid of that principle, it might well be said that to judge the conduct of men otherwise than by estab- lished laws existing when the acts complained of took place, or otherwise than by a judicial tribunal, must be understood as forbidden by necessary implication in the very organization of a free state. Bj' general consent a legislative body, by its organization, its numbers, its direct responsibility to the popular majority, and the fact that it is chosen for other duties, is not a fit tribunal for the trial of alleged offences, and the temptation to use the power of punishment as a political weapon is one to which a wise people would never deliberately subject their legis- lature. But in forming the Constitution it was judged best to leave nothing of this sort to mere implication, and accordingly we have the most positive prohibitions. Bills of Attainder. — Both the United States ^ and the several States '' are forbidden to pass bills of attainder. ' Cc^nst., Art. I. § 9, cl. 3. ^ Const., Art. I. § 10, cl. 1. PROTECTIONS TO ACCUSED PERSONS. 295 As known in English histor^^ bills of attainder were en- actments of Parliament, charging persons named with criminal misconduct of some sort, convicting them thereof, and adjudging the punishment of death, with forfeiture of property. Sometimes the proceeding was resorted to be- cause the obnoxious persons were out of- the realm, and therefore out of the reach of process, sometimes because the evidences of guilt might not be sufficient for judicial conviction, and sometimes because the obnoxious conduct had never been made criminal bj- law, and consequently the person whom the authorities desired to malje awa}' with ■was not subject to punishment in any judicial proceeding. It was quite possible in these cases for the bill to go through all its stages without the accused party being al- lowed any opportunity whatever for a hearing ; and he might be denied a hearing at the will of the legislature in all cases. In the highest degree, therefore, such proceed- ings were likely to be unjust and tyrannical ; and if a pur- pose existed to deal fairly in an3- particular case, the very organization of the tribunal rendered it practically impos- sible. But in most cases there was no such purpose, ^nd the legislature, in passing a bill of attainder, was the tool of a tyrant.* And what might take place at the will of a king, under a monarchy, might also happen, at the demand of an excited and passionate majority, at some periods in the history of a republic. Besides bills of attainder there were also bills called bills of pains and penalties, which differed from the former only in this, that the punishments imposed were less than death. Many instances of these had occurred in Ameri- can history, particularly in the case of Americans who had remained loyal fo the British Crown after the revolt of the Colonies.'' It is conceded on all sides, that the 1 This was particularly true of the reign of Henry VIII. 2 Cooper V. Telfair, 4 Dall. 14. One of the New York bills of at- tainder not only confiscated the property of the loyalists named, but 296 CONSTITUTIONAL LAW. purpose of the constitutional inhibition is to take away the power to pass either the one or the other ; in short, wholly to deprive the government of any power to inflict legislative punishment for criminal, or supposed criminal conduct.' And a ease in which the punishment is imposed indirectly, as by depriving one of the right to follow his occupation,^ or to institute suits, ^ unless he will take an oath that he has not been guilty of certain specified con- duct, is as much a bill of attainder as is an act directly imposing a punishment. Ex. Post Facto Laws. — The United States * and the States,^ alike, are also forbidden to pass expost facto laws. In its natural and ordinarj' sense this term embraces all re- trospective laws i but in the Constitution the sense is more restricted, and is limited exclusively to laws of a criminal nature. Of retrospective laws in general, therefore, there is no occasion to speak in this connection ; but they will receive some attention when the constitutional rules for the protection of property are given. One of the early justices of the Supreme Court has classified ex post facto laws as follows: — " 1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was when committed. 3. Everj' law that changes the pun- ishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4. Every law that alters the legal rules of evidence, and receives less or diflferent testimony than the law required at the time of actually condemned them to death in their absence, and without trial. 1 Ex parte Garland, 4 Wall. 333. Excepting, of course, such con- duct as may be punished under parliamentary law as contempt. '^ Cummings v. Missouri, 4 Wall. 277. s Pierce v. Oarskadon, 16 Wall. 234. 4 Const., Art. I. § 9, cl. 3. 6 Const., Art. I. § 10, cl. 1, PROTECTIONS TO ACCUSED PEESONS. 297 the coinmission of the offence, iu order to convict the of- fender." ^ And to these classes may be added, — 5. Every law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which when done was lawful. And 6. Every, law which deprives persons accused of crime of some lawful protection to which they have become entitled ; such as the protection of a former conviction or acquittal, or of a proclamation of amnesty.^ But a law is not obnoxious to this provision which changes the punishment by mitigating it ; ^ or which chan- ges the practice in criminal cases, still preserving to the defendant his substantial rights ; " or which takes from him the privilege of mere technical objections ; ^ or which limits the number of peremptory challenges to jurors,^ or modi- fies not unreasonably the grounds of challenge for cause ; ' or changes the place of trial ; ' or permits a change of venue for the purposes of a fair trial.° Nor is it incompe- tent, in providing for the trial of such offences as maj- be committed in the future, to permit the punishment to be increased on proof of a previous conviction ; though the ' Calder o. Bull, 2 Dall. 386, 390. A law is ex pout facto which makes the confinement of a condemned murderer solitary and gives the warden of the prison power to select any day within a given week for tlie execution, and to keep tlie knowledge of it from the prisoner, when previously the day was fixed by the court and the confinement was in a jail. Medley, Petitioner, 134 U. S. 160. So is a constitutional amendment, adopted after an offence, which alters the judicial rule that conviction of one grade of homicide bars a future conviction of a higher grade. Kring v. Missouri, 107 U. S. 221. See Garvey v. People, 6 Col. 559; Hopt v. Utah, 110 U. S. 574. 2 State «. Keith, 63 N C. 140. 3 Clarke v. State, 2.3 Miss. 261 ; Ratzky v. People, 29 N. Y. 124. * State 0. Manning, 14 Texas, 402; State v. Corson, 69 Me. 137; State V. Cooler, .30 S. C. 105. 5 Commonwealth v. Hall, 97 Mass. 570. 6 Dowling V. State, 13 Miss. 664. 7 Stokes 0. People, 53 N. Y. 164. 8 Cook I'. United States, 188 U. S. 157. 9 Gut V. State, 9 Wall. 35. 298 CONSTITUTIONAL LAW. previous conviction took place before the law ; for it is the subsequent offence only that is punished in such a case, and it was committed with constructive, if not actual, notice of what the punishment might be.^ And a person may be extradited under a treaty, though he had obtained asylum in the country before the treaty was made.^ Section II. — Treason : its Definition and Punish- ment. The Constitution. — It is declared in the Constitution, that " treason against the United States shall consist only in levying war against them, or in adhering to their ene- mies, giving them aid and comfort." ^ The provision is taken from the Statute of Treasons, 25 Edw. III., before the passage of which, as the ancient common law was ad- ministered, it was in the breast of the judges to determine what conduct was treason and what not, whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons ; that is, by forced and arbitrary constructions to raise offences into the crime and punishment of treason, which never had been suspected to be such.* The statute did not fullj' accomplish its purpose in England, as was proved by the conviction and execution of Algernon Sidney, whose real offence was the combating in argument the arbitrary doctrines which were then pop- ular at the court ; ^ but the wrongs of that arbitrary period had been avenged upon the perpetrators, and similar per- versions of law and justice were not again to be looked for either in England or in America. If the attempt to revive constructive treasons should be made, the Constitution by this clause provided against it as far as was possible. 1 Rand v. Commonwealth, !) Grat. (Va.) 738. 2 In re De Giacomo, 12 Blatch. 391. 3 Const., Art. III. § 3. * Instances are given by Blaekstone, 4 Com. 75. 6 Trial of Sidney, 9 State Trials, 817. PROTECTIONS TO ACCUSED PERSONS. 299 What is Treason ? — A mere conspiracy by force to sub- vert the established government is not treason ; but there must be an actual levying of war.* War, however, is levied when men are assembled with the intent of effecting by force a treasonable purpose ; and all persons who then perform any act, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors.^ And one is adherent to the enemies of the country, and giving them aid and comfort, when he supplies them with intelli- gence, furnishes them with provisions or arms, treacher- ously surrenders to them a fortress, and the like.^ But coming from an enemy's ship to the shore peaceably to procure provisions for him is said not to be treason.'' Evidence. — A conviction of treason must be on the testimon}' of at least two witnesses to the same overt act, or on confession in open court.* Previous to the English Statute making the like requirement, a trial for treason was commonly a mockery of justice. Section III. — The Writ op Habeas Corpus. The Constitution. — The right to the important writ by means of which the liberty of the citizen is protected against arbitrary arrests is not expressly declared in the Constitu- tion, but it is recognized in the provision that " The privi- lege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." ^ This writ was the offspring of the common law, but its benefits and securities were enlarged 1 Ex parte Bollraan, 4 Cranch, 75. 2 Ex parte BoUman, 4 Cranch, 75, 126. See Fries's Case, Wliart State Trials, 634, and tlie voluminous report of Burr's Trial. 3 4 Bl. Com. 76. If overt acts are committerl, they need not be successful to constitute giving aid, &c. United States v. Greathouse, 2 Abb. U. S. 364. * United States v. Pryor, 3 Wash. C. C. 234. 6 Const., Art. III. § 3. " Const., Art'. I. § 9, cl. 2. 300 CONSTITUTIONAL LAW. and guarded by the Habeas Corpus Act of Charles IT., the general provisions of which are adopted either by recogni- tion, or by express legislation, in the several States. Suspension of the Writ. — The privilege of the writ consists in this : that, when one complains that he is un- lawfully imprisoned or deprived of his liberty, he shall be brought without delay before the proper court or magis- trate for an examination into the cause of his detention, and shall be discharged if the detention is found to be un- warranted. The suspension of the privilege consists in taking away this right to an immediate hearing and dis- charge, and in authorizing arrests and detentions without regular process of law. Such suspension has been many times declared in Great Britain, or m some section of the British empire, within the present century ; sometimes in view of threatened invasion, and sometimes when risings among the people had taken place or were feared, and when persons whose fidelity to the government was sus- pected, and whose influence for evil might be powerful, had as yet committed no overt act of which the law could take cognizance. It has been well said that the suspension of the habeas corpus is a suspension of Magna Charta,* and nothing but a great national emei'gency could jus- tify or excuse it. The Constitution limits it within nar- rower bounds than do the legislative precedents in Great Britain. The power to suspend this privilege is. a legislative power, and the President cannot exercise it except as au- thorized by law.'^ The suspension does not legalize what is done while it continues ; it merely suspends for the time this particular remedj'. All other remedies for illegal ar- rests remain, and m&y be pursued against the parties mak- ing or continuing them. It is customary, after the writ has 1 May, Const. Hist., ch. 11. 2 Ex parte Merryman, 9 Am. Law Reg. 524 ; s. c. 14 Law Rep. N. s. 78 ; Taney, 246 ; McCall v. McDowell, 1 Abb. U. S. 212 ; Ex parte Field, 5 Blatch. 63. PROTECTIONS TO ACCUSED PERSONS. 301 been suspended in Great Britain, to pass acts of indem- nity for the protection of tliose in authority-, who, in the performance of their duties to the State, felt themselves warranted in arresting suspected persons while the sus- pension continued. Something similar has been done in this country by provisions in state constitutions ; ' but as a right of action arising under the principles of the com- mon law is property as mucii as are tangible things, it is not believed the right could be destroyed by statute.'' iState 'Suspensions. — Nothing in this provision hinders the States from suspending the privilege of this writ issu- ing from their own courts, and the declaration of martial law in the State has the effect of suspending it.° Section IV. — Accusations op Crime. Grand Jury. — Among the other provisions which by the fifth amendment are made for the protection of per- sons accused of crimes is this, -^that "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." A grand jur}' is a tribunal consisting of not less than twelve nor more than twenty-three men, taken from the body of the community, and sworn to in- quire into and make presentment of offences committed within their jurisdiction, and twelve of whom at least must unite m anj' presentment. The 'security to accused per- sons consists in the popular character of the tribunal, in the fact that they meet, receive, and sift the evidence in- dependently of the prosecuting authorities, and in their 1 See Freeland v. Williams, 13t U. S. 405 ; Drehman v. Stifel, 8 Wall. 595 ; Hess v. Johnson, 3 W. Va. 645. 2 Griflin o. Wilcox, 21 Ind. 370 , Johnson v. Jones, 44 111. 142. In the former case the indemnity was attempted to be given before and in the latter after the act. See Miiligan v Hovey, 3 Biss. 1. * Luther v. Borden, 7 How. 1. 302 CONSTITUTIONAL LAW. own way, and are therefore not likely to be swayed or influenced by the passions, desires, or interests of those in authority, or of malignant prosecutors. An infamous offence is one involving moral turpitude in the offender, or infamy in the punishment, or both. It is probable that in this amendment the punishment was in view as the badge of infamy rather than any element in the offence itself, and that provision for the punishment of minor offences otherwise than on indictment, even though they be degrading in their nature, would not be held un- constitutional, provided the punishment imposed was not greater than that usuallj' permitted to be inflicted by magistrates proceeding in a summarj' way. But the pun- ishment of the penitentiary must alwa3s be deemed in- , famous, whether at hard labor or not, and so must any punishment that involves the loss of civil or political privileges.' The exceptional cases mentioned in the amendment are such as come under the cognizance of military or martial law, and are punished by military tribunals. Section V. — Bail. The Constitution. — The eighth amendment forbids re- quiring excessive bail. The bail here intended is that which is given by persons who are accused of crime, and awaiting trial or final judgment, or who are held for se- curity to keep the peace. Bail is usually allowed in all cases except those in which the offence charged is punished capitally or bj- life 1 Ex parte Wilson, 114 U. S. 417; Mackin v. Unitecl States, 117 U. S. 348 ; United States v. He Walt, 128 U. S. 393 ; In re Mills, ' 135 U. S. 263. If when an offence was committed in a Territory a presentment by a grand jury was necessary, the crime cannot be prosecuted otherwise by the State formed from the Territory, Mc- Carty v. State, 25 Pac. Rep. 299 (Wash.) But this clause has no application to crimes committed abroad. Ross v. Mclntyre, 11 Sup, Ct. Rep. 897. PROTECTIONS TO ACCUSED PERSONS. 303 imprisonment, and even then it may be taken in the dis- cretion of the court.' That reasonable bail shall be ac- cepted is an admonition addressed to the judgment and conscience of the court or magistrate empowered to fix the amount : it is impossible that a definite rule shall be established by law for particular cases. The principle, however, is this : that any bail is excessive which is greater than is needful to secure satisfactorily the attend- ance of the accused for trial or sentence, or the perform- ance of such other obligation as may have been required of him. Section VI. — Incidents of the Trial and Punishment. Yenue. — One of the most valuable protections which the common law gave to accused persons was found in the principle that the trial should take place within the count}- where the alleged offence was committed. This protected the accused against being dragged away from his home and his friends for trial in such distant and perhaps hostile localitj' as his prosecutors might select, and it gave him the benefit on his trial of a good reputation if he had maintained one among his neighbors, and also rendered more probable the attendance of his witnesses, who would usually be found in his vicinity. A further principle, to which the people were even more greatly attached, was that the trial should be by jury. Both these were provided for by the original Constitution, which declared that " the trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."^ The sixth amendment made the right more specific, and 1 United States v. Hamilton, 3 Dall. 17 ; United States v. Jones, 3 Wash. C. C. 224. 2 Const., Art. III. § 2, cl. 8. 304 CONSTITUTION AL LAW. corrected a defect as regards the venue : " In all crimi- nal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." The important differences in these provisions are, that the earlier did not require the trial to take place in the district of the crime, when the State was divided into two districts, nor did it in terms make it necessary that the jury should be summoned from the vicinage, though doubtless that was to be understood. The amendment says nothing about crimes committed out of the limits of States, and has no application to them.' For the trial of such crimes Congress may provide a different place from that appointed when the crime was committed.^ Speedy Trial. — A speedy trial cannot be defined more accurately than this, that it is a trial brought on as speed- ilj' as the prosecution can reasonably be expected or re- quired to be ready for it* A public trial is not of necessitj- one to which the whole public is admitted, but it is one so far open to all as that the prisoner's friends and others who may be inclined to watch the proceedings, in order to see if justice is intelligentl}' and impartially administered, maj' have opportunity to do so. There may be and often is justifiable occasion to exclude from a trial those who are inclined to attend from idle or morbid curiosity only, and especially in cases involving loathsome or disgusting details.* The Jury. — By jury in the Constitution is meant a com- mon-law jury. This is a tribunal of twelve persons, im- 1 United States v. Dawson, 15 How. 467. These provisions do not prevent tlie trial in a consular court of a crime committed by a sailor on an American ship lying in Japanese waters. Ross v. Mclntyre, 11 Sup. Ct. Rep. 897. 2 Cook V. United States, 138 U. S. 157. 8 See Ex parte Stanley, 4 Nev. ll.S ; Creston v. Nye, 74 Iowa, 369. * People V. Kerrigan, 73 Cal. 222 ; Grimmett u. State, 22 Tex. App 36 ; State v Brooks, 92 Mo. 542. PROTECTIONS TO ACCUSED PERSONS. 305 partially selected for the purposes of the trial in accord- ance with rules of law previously established, and who are to sit together, hear and consider the evidence hi the case, and render their verdict upon the facts as thej- find them. The jury cannot consist of less than twelve, and a trial by less than that number, even by consent, is a mis-trial.^ To secure impartiality each party is allowed a certain number of peremptory challenges, and as man^' others as he can show cause for. The jury listen to the evidence in the presence and under the direction of the court, and they are advised by the court what the law is that should gov- ern the case. Formerly it was supposed that the jury might be punished if they failed to follow in their verdict the instructions of the court upon the law ; but it has long been settled that the jury maj' render their verdict freely, and without assigning reasons.^ If the accused is con- victed against the law, or against the evidence, the judge may correct the error bj' granting a new trial. The ver- dict of the jury must be unanimous ; and therefore, if agreement becomes impossible, they must be discharged, and a new jury summoned. The Indictment. — The sixth amendment entitles the accused "to be informed of the nature and cause of the accusation." This information is to be convej-ed by the indictment, and the accused must have a copy in ample time to enable him to be prepared for trial. To make the indictment sufHcient for the purpose, it must contain such a recital of facts as will reasonably apprise the defendant what the case is which he must meet ; and this cannot be dispensed with even by stattite.^ But the unnecessary 1 Work V. State, 2 Ohio St. 2fl6 ; Cancemi o. People, 18 N. Y. 128 ; Brown v. State, 8 Blackf. (Ind.) 561 ; Harris v. People, 128 III. 585. There are cases contra, especially as to misdemeanors. See, further, ante, Ch. XIII. sec. 5. 2 Penn's Case, 6 State Trials, 951 ; Bushel's Case, Vaughan's Rep. 135. 8 State i). O'Flaherty, 7 Nev. 153; State v. Corson, 59 Me. 137; State V. McKenna, 17 Atl. Rep. 51 (R. I.). 20 306 CONSTITUTIONAL LAW. formalities and technicalities of the old forms may be abolished, and no cause for complaint be given thereby.^ The Evidence. — The fifth amendment also declares that no person " shall be compelled in any criminal case to be a witness against himself." ^ This was a common-law principle, and it has been incorporated in the Constitution to prevent the possibilitj' of a recurrence to the inquisi- torial proceedings which in arbitrary periods were some- times had, and which are now admitted in some countries under systems of jurisprudence differing from our own. Under the laws of some States accused persons are per- mitted to give evidence on their own behalf; but if one elects not to do so, the fact is not allowed to be made use of to his prejudice, since, if it were, this would indirectly force him to be sworn.' By the sixth amendment the ac- cused has the right to be confronted with the witnesses against him, and to have compulsory process for obtaining witnesses in his favor. No comment need be made on this last privilege : the other renders it necessary that the prosecution procure the presence of their witnesses in open court, wbere the jury maj' have opportunity to observe them, and where full liberty of cross-examination may be had.^ Counsel. — By the sixth amendment the accused has the privilege " to have the assistance of counsel for his de- fence." This is a common law privilege, much improved and extended in late years, and it is secured with all its 1 State M. Learned, 47 Me. 426 ; People v. Mortimer, 46 Cal. 114; Com. V. FreeloTe, 150 Mass. 66; Caldwell v. Texas, 137 U. S. 692. 2 See United States w. Boyd, 116 U. S. 616, cited at length, ante, p. 220. 8 People V. Tyler, 36 Cal. 522; State v. Cameron, 40 Vt. 555; Bird V. State, 50 Ga. 585. * Jackson v. Commonwealtli, 19 Grat. (Va.)656; State v. Thomas, 64 N. C. 74. If, on the second trial of a cause, it Is found that the accused has kept away a witness, his evidence given on the first trial may be proved by the prosecution. Reynolds v. United States, 98 U. S. 145. PROTECTIONS TO ACCUSED PERSONS. 307 accustomed incidents. The counsel must be at liberty to deal with the case freely, and to comment fearlesslj- upon the facts, and upon the conduct, purposes, and motives of prosecutors and witnesses, only keeping within the bounds of decorum. The law protects implicitly the confidence which the relation of counsel and client requires, and will not suffer the counsel, even in the courts of justice, to dis- close the confidential communications that may have been made to him with a view to pending or anticipated litiga- tion.'^ As the jury in general are judges of the facts only, the argument of counsel upon the law should be addressed to the court ; ^ but the jury may be addressed directly, upon both law and fact, in those cases where b^- statute or constitution they are made judges of both.' Punishments. — By the eighth amendment excessive fines and cruel and unusual punishments are forbidden. What punishment is suited to a specified offence must in general be determined by the legislature, and the case must be very extraordinar3' in which its judgment could be brought in question. A punishment may be unlawful either, 1. because it is in excess of, or different from, that prescribed by law ; * or,, 2. because it is not warranted by the judgment of any competent court ; and, possibly, 3. because, though apparently warranted by law, it is so manifestly out of all proportion to the offence as to shock the moral sense with its barbarity, or because it is a pun- ishment long disused for its cruelty until it has become 1 "Whiting V. Barney, 30 N. Y. 330. Compare Dixon v. Parmelee, 2 Vt. 185. Coraniiinications to a State's attorney with a view to a prosecution Are privileged. Vogel o. Gruaz, 110 U. S. 311. See, as to the limits of this rule, cases in Cooley, Const. Lim., 6th ed., p. 407. 2 United States v. Morris, 1 Curt. C. C. 23 ; United States v. Riley, 5 Blatch. 204. » Lynch v. State, 9 Ind. 541. See Commonwealth v. Porter, 10 Met. (Mass.) 263. « Bourne v. The King, 7 Ad. & EI. 58 ; Ex parte Lange, 18 Wall. 163. As to whether cumulative punishments are valid, see Bloom's Case, 53 Mich. 697 : In re Esmond, 42 Fed. Rep. 821, and cases sited. 308 CONSTITUTIONAL LAW. " unusual." Nothing more definite can on this point be aflirmed.^ Twice in Jeopardy. — The fifth amendment forbids that any person shall be subject, for the same offence, to be twice put in jeopardy of life or limb. This is an old phrase, which has come from times when sanguinary punishments were common ; but the meaning is, that no person shall be put on trial a second time for the same offence, after he has been tried and convicted, or acquitted. But some explanation is necessarj', since in some cases one ma\' be entitled to the benefits of an acquittal, though a verdict has never been returned. A person is in jeopardy when he is put upon trial, be- fore a court of competent jurisdiction, upon an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been impanelled and sworn to trj* him.^ The accused then becomes entitled to a verdict that shall forever protect him against anj' future prosecution,' and a discharge of the jury without his con- sent is equivalent to an acquittal, except in the few cases in which a discharge without a verdict becomes a necessity.' But one is not put in jeopardy by a prosecution in a court which has no jurisdiction of the case ; ° or upon an indiut- ' The infliction of death by electricity is not cruel within the meaning of this prohibition. People v. Durston, 119 N. Y. 569; In re Kemmler, 136 U. S. 436. A punishment may perhaps be deemed cruel and unusual if from its nature it would be intolerable to one class of people, but comparatively indifferent to others ; as, for ex- ample, the punishment of depriving a native of China of his hair. Ho Ah Kow V. Nunan, 5 Sawy. 552, 2 McFadden v. Commonwealth, 23 Penn. St. 12 ; O'Brian v. Com- monwealth, 9 Bush (Ky.), 333. So of arraignment and plea before a justice who has power to try th§. case. Boswell v. State, 111 Ind. 47. s Barker v. People, 3 Cow. (N. Y.) 686 ; Pizano v. State, 20 Tex. App. 1.39 ; Commonwealth v. Hart, 149 Mass. 7. * People V. Barrett, 2 Caines (N. Y.), 304 ; Nolan u. State, 55 6a. 521. 5 People V. Tyler, 7 Mich. 161 ; People v. Hamberg, 84 Cal. 468; State V. Phillips, 104 N. C. 786. PKOTECTIONS TO ACCUSED PERSONS. 309 ment which is so defective that no judgment can be given upon it ; ^ and the jeopardy once attached is removed, if the jury are discharged by reason of the impossibility of agree- ment, or by consent, or if the case is stopped by the sick- ness or death of the judge, or a juror,^ or if, after verdict of conviction, it is set aside on motion of the accused, or judgment upon it is reversed in an appellate court, or is arrested for fatal defects in the indicitment ; " and in any of these and similar cases, the accused may be tried a second time. But an acquittal, however erroneous, must be a bar, unless a remedy by writ of error is given to the State by statute, as has been done in some States.* If the accused is acquitted on some counts in an indictment and convicted on others, and the conviction is set aside, he can be put upon trial the second time on those counts onlj' on which he was before convicted, and is forever discharged from the others.^ Due Process of Law. — The fifth amendment also pro- vides, that no person shall be deprived of life, liberty, or property without due process of law. The fourteenth amendment extends this prohibition to the States. The meaning of this protection has been more fully considered in another place ; at present, it is sufficient to say that, as a protection to life and liberty, it requires, before either can be taken away under legal proceedings, that there shall be a prosecution according to the forms of law, resulting in conviction after public trial, and opportunity to be heard, and followed by judgment applying the law which the con- victed party violated. 1 Gerard v. People, 4 111. 363 ; Kohlheimer v. State, 39 Miss. 548 ; Garvey's Case, 7 Col. 384. ^ Nugent V. State, 4 Stew. & Port. (Ala.) 72; Hector w. State, 2 Mo. 1B6 ; State v. Emery, 59 Vt. 84. * Casborus v. People, 13 Johns. (N. Y.) 351. A trial in a higher court on defendant's appeal does not put him twice in jeopardy. Commonwealth w. Downing, 150 Mass. 197. * State V. Tait, 22 Iowa, 140. 5 Campbell v. State, 9 Yerg. 333 ; Barnett v. People, 54 111. 325. 310 CONSTITUTIONAL LAW. Contempts of Authority. — It sometimes becomes essen- tial, in the course of their discharge of public duties, that legislative bodies and courts should punish summarily those who disturb their proceedings, or who refuse or neg- lect to perform any duty required of them in respect there- to. Such conduct is called a contempt of authority, and the power to punish it is inherent in such bodies.^ But as the tribunal that punishes will also be the tribunal whose just authority has been contemned, the power is one to be ex- ercised very sparingly, and only when the necessity plainly appears. When inferior courts punish for contempts, their records must show that the party is convicted of conduct which is in fact a contempt ; ^ and the conviction will be void if the finding is wanting. A different rule applies in the courts of general jurisdiction.' In tribunals of ^11 sorts and grades the partj' accused of contempt is entitled to a hearing.^ Bodies having qitasi judicial and legislative powers, like boards of supervisors and city councils, can- not punish for contempts.^ 1 Anderson v. Dunn, 6 Wheat. 204 ; Robinson, Ex parte, 19 Wall. 505. But see Kilbourn v. Thompson, 103 U. S. 168. That the rule ap- plies to inferior courts, see In re Deaton, 105 N. C. 59. Compare Ex parte Kerrigan, 33 N. J. 344 ; Re Cooper, 32 Vt. 253. It does not extend to court commissioners nor notaries. Ex parte Perkins, 29 Fed. Rep. 900 ; Burtt v. Pyle, 89 Ind. 398 ; Puterbaugh v. Smith, 131 111. 199. 2 Bachelder v. Moore, 42 Cal. 412 ; Turner v. Commonwealth, 2 Met. (Ky.) 616. 3 Bradley v. Fisher, 13 Wall. .335; Cuddy, Petitioner, 131 U.S. 280. « Ex parte Bradley, 7 Wall. 364 ; Savin, Petitioner, 131 U. S. 267. But if the contempt is in the immediate presence of the court, it may be punished summarily without notice or opportunity for defence. Ex parte Terry, 128 U. S. 289. * Whitcomb's Case, 120 Mass. 118. PROTECTION TO CONTBACTS AND PROPERTY. 311 CHAPTEE XVI. PROTECTION TO CONTRACTS AND PROPERTY. Section I. — Laws impairing the Obligation op Con- tracts. The Constitution. — Among the powers forbidden to the States by the Constitution is the power to pass any law impairing the obligation of contracts.' The prohibition passed almost without comment at the time, and in the careful and very full discussions of the Federalist it is barely alluded to twice ; first, as a provision to prevent aggressions on the rights of those States whoso citizens would be injured bj' such laws ; ^ and, second, as being a " constitutional bulwark in favor of personal security- and private rights" against laws which are "contrary to the first principles of the social compact, and to everj- princi- ple of sound legislation."* Apparently nothing was in view at the time except to prevent the repudiation of debts and private obligations, and the disgrace, disorders, and calamities that might be expected to follow. Tn the construction of this provision, however, it has become one of the most important, as well as one of the most compre- hensive, in the Constitution ; and it lias been the subject of more frequent and more extended judicial discussion than any other. Only brief reference can be made here to the principles which the decisions have settled. 1 Const., Art. 1. § 10. 2 Federalist, No. 7, instancing the then recent laws of Rhode Island in tlieir results on the neighboring States. s PederaUst, No. 44. 312 CONSTITUTIONAL LA"W. What is a Law? — The prohibition is aimed generally at the legislative power of the State. A state constitution is, therefore, a law within the meaning of this clause.^ But the law need not be in the form, of statute or constitution. It maj' be a municipal by-law or an enactment from what- ever source originating, provided the State gives it the force of law.'' And the settled judicial construction of a constitution or statute, as it enters into the statute or consti- tution, cannot be changed so as to impair the obligation of ■ a contract made with reference to it.' But the acts of ad- ministrative officers are not covered by this provision, and a municipal ordinance which involves administrative, not purel^r legislative power, is not a law within its terms.* What are Contracts ? — Contracts are either executory or executed. An executory contract is one whereby a party takes upon himself the obligation to do or abstain from doing some particular thing. An executed contract is one whereby an obligation assumed is performed, and the transaction perfected ; as a deed of conversance per- fects a sale of lands. The Constitution makes no distinc- tion between these two classes of contracts, and the latter as much as the former is within its protection. It is, there- fore, not within the power of legislation, after a convey- ance has been made, to annul it on any pretence ; since this would not merely impair the obligation of the contract, but would destroy it entirelj'.^ Obligation of the Contract. — The obligation of a conr • New Orleans Gas Co. v. La. Light Co., 115 U. S. 650 ; Fisk v. Jefferson Police Jury, 116 U. S. LSI. 2 Williams v. Bruffy, 96 U. S. 176. " Douglass V. Pike Co., 101 U. S. 677 ; Louisiana w. Pilsbury, 105 XJ. S. 278 ; Ray v. Gas Co., 20 Atl. Rep. 1065 (Penn.). * New Orleans Water Works v. La. Sugar Co., 125 U. S. 18. 6 Fletcher v. Peck, 6 Cranch, 87, 133 ; Franklin School v. Bailey, 20 Atl. Rep. 820 (Vt.). A charitable trust is a contract, so that the State cannot change its administration without the assent of all the parties who created it. Gary Library v. Bliss, 25 N. E. Rep. 02 (Mass.). PKOTECTION TO COiJTRACTS AND PBOPKETr. 313 tract consists in its binding force on the partj- making it, which the law at the time recognizes, and for which it gives a remedj'. It involves, therefoi'e, first, the promise or assurance of the part}', and, second, the sanction of the law, whereby the promise or assurance becomes an efl'ect- ual contract.^ No promise or assurance can, therefore, constitute a contract, unless the law lends its sanction ; and this in some cases it withholds. For example, if there is no consideration for an executory contract, this in law is a mere nude pact, and invalid ; and so is any promise which is illegal, either in its consideration, or in the purpose to be accomplished by it.^ y^hat Contracts intended. — The contracts intended bj' the Constitution are all those over which the State can have authoritj-, and which, but for this provision, might be reached by state law. The contracts of the State it- self are therefore included, as much as those of individ- uals, and a State is thus precluded from recalling its own grants, as had frequently been done on various pretexts in England.' Neither can a State modify, except bj- mutual consent, any provision of a pre-existing contract into which it may have entered.* For example, if a State, being the owner of the capital stock of a bank, pi'ovides by law that its bills shall be received in payment for all debts owing to the State, the provision is a promise to those who shall receive the bills, that thej' shall be thus accepted for state dues ; and this promise the State can- not recall, to the prejudice of any who previously had be- come holder^ of the bills.' And the same rule applies 1 Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608 ; Ogden v. Saunders, 12 Wheat. 213, 259, 302, 318. 2 Meacham v. Dow, 32 Vt. 721 ; Piatt v. People, 29 111. 54 ; Mar- shall V. Railroad Co., 16 How. 314. 8 Fletcher v. Peek, 6 Cranch, 87 ; Van Home v. Dorrance, 2 Dall. 304; Huidekoper v. Douglas, 3 Cranch, 1. * New Jersey v. Wilson, 7 Cranch, 164. 5 Woodruff y. Trapnall, 10 How. 190; Furman v. Nichols, 8 Wall 44 ; Keith v. Clark, 97 U. S. 454. 314 C03SST1T UTIONAL LAW. where the State has issued bonds whose coupons It hag agreed to receive for taxes.' So if a State, or one of its municipalities, contracts a debt and issues obligations * therefor, and these obligations corae into the hands of foreign holders who are not subject to state taxation, a subsequent statute imposing a tax upon them, and direct- ing that the amount thereof shall be deducted in making payment, is void as to the foreign holders, because with- holding something to which they are entitled, and to that extent impairing the obligation of the contracts.^ Statutes. — A statute, public or private, is not a contract It is an expression in due form of the will of the State, as to what shall be the law ©n the subject covered by it ; and the State would be deprived of its sovereignty, and crip- pled in the exercise of its essential functions, if it were not at libertj- to change its laws at discretion. But there are exceptions to this general rule : for a State ma3- give to its contracts such form as it may choose to express its assent in ; and this is sometimes the form of a statute. The grants of land by a State are frequently made by statute, and so are grants of special privileges.* Bounties are sometimes offered in this way ; and when the terms of the offer are accepted, a contract exists ; but a bounty law may be repealed at any time as to anything that may accrue thereafter.* Offices. — A public ofHce is a public trust: the appoint- ment or election to it is a delegation of the trust to the 1 Hartnian v. Greenhow, 102 U. S. 672 ; Pqindexter v. Greenliow, 114 U. S. 270; MoGahey v. "Virginia, 136 U. S. 662. See also Louisi- ana V. Jamel, 107 U. S. 711. H 2 Murray v. Cliarleston, 96 U. S. 432. And see State Tax on Foreign Held Bf)nds, 15 Wall. 800. 5 A general law which is a standing offer of land becomes a con- tract if the offer is accepted and payment made, so that the certificate of sale cannot be cancelled under a new law. Pennoyer v. McCon- naughy, 11 Sup. Ct. Kop. 639. * Welch V Cook, 97 U. S. 541; Pennie v. Reis, 132 U. S. 464; United States 3. Connor, 138 U. S. 61. PROTECTION TO CONTRACTS AND PROPERTY. 315 person appointed or elected for the time being. But it is not a contract, and neither the office nor its emoluments can be claimed as matter of right, as against subsequent legislation abolishing the one or reducing the other.* " Nevertheless, if in either of these particulars the state constitution has made provisions, it is not competent by law to change them, for the manifest reason that the con- stitution in that case limits the legislative power in that regard. For example, the President's term of office is four years, and his compensation can neither be increased nor diminished during his term ; '^ and in both these particulars the power of Congress over his office is excluded. Statutory Privileges. — The gi-ant of a statutorj- privi- lege is not a contract, but it resembles a license, and is always revocable, except that the party cannot be deprived of benefits already enjoyed under it. Under this head come exemptions from military and jury duty, exemptions of property' from taxation or from sale on execution," and licenses to engage in any business the carrj'ing on of which is not open to the general public* And in general it may be said that anj- privilege which is obtained under the gen- eral law of the State may be taken away by a repeal or modification of the law.^ Municipal Corporations. — A grant of rights or privi- 1 Butler V. Pennsylvania, 10 How. 402 ; Head v. University, 19 Wall. 526; Crenshaw v. United States, 134 U. S. 99; United States' V. McDonald, 128 U. S. 471. But the State may make a binding con- tract, though an official relation is thereby created. Hall v. Wiscon- sin, 103 U. S. 5. And if services are rendered in an office, an implied contract is created to pay for them, which cannot be impaired by subsequent legislation. Fisk v. Jefferson Police Jury, 116 U. S. 131. 2 Const., Art. II. 3 Christ Church v. Philadelphia, 24 How. 300 : East Saginaw Salt, &c. Co. V. East Saginaw, 13 Wall. 373 ; Shiner v. Jacobs, 62 Iowa, 392 ; Bull V. Conroe, 13 Wis. 233. * Calder v. Kirby, 5 Gray (Mass.), 507 ; Fell v. State, 42 Md. 71. See Beer Co. v. Massachusetts, 97 U. S. 25; Stone v. Mississippi, 10) U. S. 814. * Beers v. Arkansas, 20 How. 527. 316 CONSTITUTIONAL LAW. leges to a municipal body or corporation for public pur- poses is not a contract, but a law for the public good. Such bodies and corporations are created as necessary conveniences in government, and they must hold their powers and privileges subject to legislative modification and recall at all times. Therefore the grant to a town of the right to establish and maintain a ferrj' across a public river maj- be revoked,^ the territorial limits of the town may be reduced, particular powers, like the power to tax, or the power to buy in lands for unpaid assessments, may be taken awa}' or changed at discretion, and so on.^ But a municipal corporation is entitled to protection in its prop- erty as a natural person is, whether it comes from the State or from any other source.^ Essential Powers of Government. — A State cannot by contract bargain away an3' of the essential powers of sov- ereignt}', so as to deprive itself of the abilit3' to employ them again and again, as the public exigencies shall seem to require. For example, it cannot by granting land for cemetery purposes preclude itself from forbidding the fur- ther use of the land for those purposes when, by reason of the increase of population in the vicinity, it has become, or threatens to become, a nuisance ; * and it cannot by a rail- road charter deprive itself of the power to establish reason- able regulations under which the railroad business shall be carried on.' So also the State cannot deprive itself of the 1 East Hartford v. Bridge Co., 10 How. 511. 2 Barnes v. District of Columbia, 91 TJ. S. 540 ; Laramie Co. v. Albany Co., 92 U. S. 307 ; Williamson v. New Jersey, 130 U. S. 189 ; Essex Board v. Skinkle, 11 Sup. Ct. Rep. 790. ' Town of Pawlet v. Clark, 9 Crancli, 292 ; Terrett v. Taylor, 9 Cranch, 4.3 ; State v. Haben, 22 Wis. 660 ; Grogan v. San Francisco, 16 Cal. 590 ; Dillon, Mun. Corp., § .39 et seq. * Brick Presbyterian Church v. New York, 5 Cow. 538. See Fer- tilizing Co. u. Hyde Park, 97 U. S. 659. 6 Thorpe v. Railroad Co., 27 Vt. 140 ; Railroad Co. v. Jacksonville, 67 lU. 37. See Butchers' Union Co. v. Crescent City Co., Ill U. S. 746. PROTECTION TO CONTRACTS AND PROPERTY. 317 right to appropriate private property to public uses under the eminent domain, — this being a necessary power in gov- ernment,! or of the right to raise a revenue by an exercise Of the power to tax. It is nevertheless held that the State may, for a consid- eration, impose upon itself the obligation not to tax certain subjects, otherwise taxable, for some definite period, or even indefinitely ; it being presumed in that case that the consideration received by the State is equivalent to that which might have been derived from the exercise -of the customary power to tax.^ Nor is it essential that the con- sideration shall be a direct pecuniary return, or one that can be shown by evidence to be an equivalent ; it is suffi- cient that the State has apparently found it for its interest to assume the obligation, and that some one else has acted in reliance upon it. In the leading case the State made a grant of lands, agreeing not to tax them in the hands of the grantees ; and this agreement was held to be an irrev- ocable exemption.^ In other cases the State, in granting a charter of incorporation, has stipulated that the taxation of the corporation shall only be at a certain rate, or on a certain basis ; and this also is irrevocable.* But an ex* emption from taxation can never be granted as against a provision in the state constitution which requires all prop- erty to be uniformly taxed.^ And as the power to tax is vital, and it is of the highest importance that it sliould always remain unrestricted and in full force, the presump- tion against any intention to hamper or restrict it must be strong in every ease, and can only be overcome by the employment of very clear terras to indicate that intent.' 1 Cooley, Const Lira., 6th ed., 339. 2 New Jersey v. Wilson, 7 Cranoh, 164; Pacific Tl. R. po. u. Ma- gnire, 20 Wall. 36 ; University v. People, 99 U. S. 809. 8 New .Jersey v. Wilson, 7 Cranoh, 164. * PiquaBank v. Knoop, 16 How. 369; Railroad Co. v. Keid, 13 Wall. 264; New Orleans v. Houston, 119 U. S. 265. * Railroad Companies v. Gaines, 97 U. S. 697. « Christ Church v. Philadelphia, 24 How. 300 ; Gilman v. Sheboy- 318 CONSTITUTIONAL LAW. And in any case an exemption from taxation, obviously made as a mere favor, may be terminated at the will of the State at any time.* Exclusive Privileges. —It is settled by the authorities that the State may grant exclusive privileges for many purposes ; as, for example, to build a toll-bridge at a cer- tain point, to construct a toll-road between certain places, to establish a certain ferry, to supply water and gas to a city, and the like ; and these grants, when made to indi- viduals or private corporations, are contracts, and bind the State.^ But, as in the case of exemptions from taxa- tion, the intent of the State to restrict or hamper its power for the future is not to be lightly assumed, and it should appear with reasonable certainty in the legislation, and the grant will be strictly construed as against the grantees. This is reasonable, not only when the subject is regarded from the standpoint of state interest, but also because ex- clusive privileges are to some extent invidious and very justly obnoxious, and it is not reasonable to suppose that the State would grant them, except when some important public purpose or some necessary public convenience can- not be accomplished or provided without making the grant exclusive. Therefore, when the owners of a franchise un- der state grant contest the rights of the. State to make a second grant which would compete with it, every doubt must be resolved in favor of their claim before it can be sustained, and every resolution which springs fi'om doubt is against the claim.' Moreover the grant will never be gan, 2 Black, 610; Chicago, &c. Ry. Co. u. GufEey, 120 U. S. 569; Tennessee v. Wliitworth, 117 U. S. 139. 1 East Saginaw Salt, &e. Co. v. East Saginaw, 13 Wall. 373 ; Home Ins. Co. V. City Council, 93' U. S. 116 ; Welch v. Cook, 97 U. S. 541. 2 New Orleans Gas Co. u. La. Light Co., 115 U. S. 650 ; New Or- leans Water Works v Rivers, Id. 674 ; Louisville Gas Co. v. Citizens' Gas Co., Id. 683. Compare Stein v. Bienville Water Co., 11 Sup. Ct. Rep. 892. 8 Pennsylvania R. R. Co. v. Canal Commissioners, 21 Penn. St. 9, 22. See the discussions in Fertilizing Co. v. Hyde Park, 97 U. S. 659. PKOTEGTION TO CONTRACTS AND PROPERTY. 319 extended bj' construction beyond the plain terms in wliich it is made. A familiar instance is where the owners of a ferry franchise, or of a franchise to take toll for passing over a bridge, contest the right of the State to grant a second franchise, the enjoyment of which would diminish their own profits. As against them, the presumption is that the State retained the riglit to license as many cross- ings as should be found needful or desirable.^ But even the agreement of the State that the grant shall be exclusive, cannot prevent the making of another, subject to the obligation to provide compensation, under the principles governing the law of eminent domain. An exclusive privilege onlj' gives to the franchise additional value as property ; and all propertj' is subject to be taken and appropriated to public uses on making paj'^ment there- for. Therefore, notwithstanding the existence of an ex- clusive grant to construct a railroad between two named places, or a bridge over a river at a certain locality, the State has, and must have, the power to make conflicting grants when the public needs seem to require them ; and the progress of the State could or might be embarrassed or stayed by improvident or dishonest state concessions if this were otherwise.^ The new grant in such case does not impair the obligation of the other, but the obligation is recognized in giving compensation for the exclusive privilege. Charter Contracts. — In the Dartmouth College Case, in which the legislature undertook to remodel the charter of an educational institution, in most important particulars, without the consent of the corporators, it was decided that the charter was a contract, which the State was supposed 1 Charles River Bridge v. Warren Bridge, 11 Pet. 420 ; Turnpike Co. V. State, 3 Wall. 210; Wheeling, &o. Co. v. Wheeling Bridge Co., 138 IT. S. 287; Rockland W. Co. v. Camden, &c. Co., 80 Me. 544. ^ West River Bridge Co. v. Dix, 6 How. 507 ; Eastern R. R. Co.u Boston, &c. R. R. Co., Ill Mass. 125 ; Alabama, &c. R. R. Co. v. Kenny, 39 Ala. 307. 820 CONSTITtJTIONAL LAW. to grant in consideration of expected benefits to accrue to the general public, and whereby the State in legal contem- plation promised that the corporators should enjoy the privileges and franchises granted. The conclusion was that the amendatory act was invalid, as impairing the obli- gation of the contract.^ The same doctrine has been re- asserted and reaffirmed in manj' cases since.^ Of course, atotal repeal of the charter would be a still plainer case. Where, however, by the charter the legislature reserves the right to alter, amend, or repeal it, it is plain that no such consequence can follow, because then an alteration, amendment, or repeal is in accordance with the contract, and not hostile to it. So if by the constitution of the State, or hy its general laws in force when the charter was granted, it is provided that all charters shall be subject to legislative control and alteration, this provision in legal effect becomes a part of the charter, and therefore a part of the contract.' Police Regulations : General Principle. — All property and all rights within the jurisdiction of a State are subject to the regulations and restraints of its police power, ex- cept so far as the}' are removed therefrom bj' the express provisions or implications of the federal Constitution.* The police power may be defined in general terms as that power which inheres in thp legislature to make, ordain, and establish all manner of reasonable regulations and laws whereby to preserve the : peace and order of societj' and 1 Dartmouth College v. Woodward, 4 Wheat. 518. 2 The Binghamton Bridge Case, 3 Wall. 61 ; Farrington v. Ten- nessee, 95 U. S. 679 ; Stone i'. Mississippi, 101 U. S. 814. 3 Murray v. Charleston, 96 U. S. 432, 448 ; Railroad Co. a. Georgia, 98 U. S. 359 ; Railroad Companies v. Gaines, 97 U. S. 697. So if the power to amend and repeal is conferred after the corporation is char- tered, provided it accepts new legislative acts passed after the legisla- ture is given tlie new power. Pennsylvania R. R. Co. u. Duncan, 111 ?enn. St. 852 ; Sliields v. Ohio, 95 U. S. 319. * United States v. De Witt, 9 Wall. 41 ; United States v. Reese, 92 U. S. 214 ; Mugler v. Kansas, 123 U. S. 623. PROTECTION TO CONTRACTS AND PROPERTY. 321 the safetj- of its members, and to prescribe the mode and manner in which every one may so use and enjoy that which is his own as not to preclude a corresponding use and enjoyment of their own by others.* Interfurence with Federal Powers. — In a preceding chapter cases have been mentioned in which attempts by the States to exercise this power have been held invalid, because they interfered with the ' proper exercise by Con- gress of its power in the regulation of commerce.^ More often state regulations have been questioned on the ground that, under the pretence of regulation; thej' took away rights which were promised and assured by contract, and therebj' impaired the obligation of the contract. Regulation of Charter Contracts. — It is not ques- tioned that all contract rights are subject to State regula- tion, as all jaroperty is. Therefore, though a railroad company has a charter not subject to amendment or re- peal by the legislature, it takes it nevertheless subject to such changes as may be made in the general laws and Constitution, unless as to the subject-matter involved the charter constitutes a contract exempting the corporation from the operation of such legislation.^ And in the con- duet of business under the charter, the company must conform to such rules and regulations as the State maj' establish for the safety and protection of those being carried by or having transactions with it. Therefore the company maj' be required to fence its track as a proper precaution, as- well against the trains being thrown from the track, as against the destruction or loss of cattle,* ' License Cases, 5 How. 504; License Tax Cases, 5 Wall. 462; Munn V. Illinois, 94 U. S. 113, 124 ; Barbler v. Connolly, 113 U.S 31. 2 Ante, pp. 69-79. 8 Pennsylvania R. R. Co. v. Miller, 132 U. S. 75. Here afler tlie charter was granted, which gave power to condemn land, a constitu- tional amendment provided that compensation should be made for in- jury caused in the course of public improvements to land not actually taken for public use, and it was held applicable to the corporation. « Thorpe v. Railroad Co., 27 Vt. 140. 21 322 CONSTITUTIONAL LAW, and to fix periodically its charges and keep them posted for the information of the public.^ The following are also reasonable regulations : requiring all trains to check their speed at exposed places ; ^ to carry impartially for all persons ; ' to permit other roads to cross the railroad track, and to share with them the expense of the cross- ing ; * to ring a bell or sound a whistle at crossings, or to station a flagman at such, or any other dangerous places ; ^ to respond in damages in case the death of anj* person shall be caused by the company's wrongful act, neglect, or default ; ° and so on. A charter, then, is to be deemed granted upon condition that the corporation shall be sub- ject to such reasonable regulations as to the conduct of its business as the legislature may prescribe, provided they do not materially interfere with the enjoyment of its privi- leges, and only serve to secure the ends for which it is organized.' On the other hand, if the regulation assumes to take from the compan}' some substantial right which its charter confers, it will be void. Instances are, the taking away a right to exact toll, which had been clearly given ; ' imposing upon the company new liabilities for something it was expressly permitted to do ;' and so on.^" The Umit J Railroad Co. v. Fuller, 17 Wall. 560. 2 Chicago, &c. R. R. Co. v. Haggerty, 67 111. 113 ; Haas v. Railroad Co., 41 Wis. 44; Pennsylvania R. R. Co. v. Lewis, 79Penn. St. 3.3. 8 Chicago, &c. R. R. Co. v. People, 67 111. 11. * Fitchburg, &c. R. R. Co. v. Grand Junction R. R. Co., 1 Allen (Mass.), 552. 6 Toledo, &c. R. R. Co. v. Jacksonville, 67 111. 37. ' s Steamboat Co. o. Barclay, 30 Ala. 120 ; Boston, &c. R. R. Co. v. State, 32 N. H. 215. ' Chicago Life Ins. Co. v. Needles, 113 U. S. 574. 8 Pingrey v. Washburn, 1 Aik. (Vt.) 264. 9 People V. Plank Road Co., 9 Mich. 285 ; Bailey v. Railroad Co., 4 Harr. (Del.) 389. » See Washington Bridge Co. w. State, 18 Conn. 53 ; Pliiladelphia, &a R. R. Co. V. Bowers, 4 Hous (Del.) 506. A railroad company can- not forty years after its construction be compelled to put in at its own cost residence crossings for adjoining proprietors. People v. Ry. Co., 44 N. W. Rep. 934 (Mich.). PROTECTION TO CONTRACTS AND PROPERTY. 323 to the exercise of the police power over charter contracts is substantially this : the regulations must have reference to the comfort, safet}-, or welfare of society ; they must not be in conflict with any of the provisions of the charter, and they must not, under the pretence of regulation, take from the corporation any of the essential rights and privi- leges which the charter confers. In short, thej' must be regulations in fact, and not amendments of the charter in abridgment of the corporate franchises.' Yet under the settled rule that " the legislature cannot bargain away the public health or the public morals," the State may in the exercise of its police power take away the right to carry on a business which in its judgment endangers public health or morals, although the business is done by a cor- poration chartered for that purpose.^ And where the charter reserves to the legislature the power to alter, amend, or repeal it, or where it is granted under a state constitution which expressly saves to the legislature that right, anj' change whatever in the contract by legislative power is no impairment of the contract.' A legisla- ture having such a power may therefore exercise control over the charges of railroad companies,* though it can- ' Cooley, Const. Lim., 6th ed., 710, and cases cited. See Beer Co. v: Massachusetts, 97 U. S. 25. ^ Beer Co. v. Massachusetts, 97 U. S. 25 ; Fertilizing Co. v. Hyde Parle, 97 U. S. 659; Stone v. Mississinpi, 101 U. S. 814; Butchers' Union Co. v. Crescent City Co., Ill U. S. 746; New Orleans Gas Co. V. La, Light Co., 115 U. S. 650. 2 Seethe right of amendment with its limitations considered in Sinking Fund Cases, 99 U. S. 700. In Greenwood v. Freight Co., 105 U. S. 13, the legislature granted upon compensation made the fran- chises of one corporation to another. In Spring Valley Water Works V. Schottler, 110 U.. S. 347, a pre-existing right of a company to have a voice in fixing its rates for service was taken away. See, also, Sioux City Ry. Co. v. Sioux City, 138 U. S. 98. * Chicago, &r. R. R. u. Iowa, 94 U. S. 155. This principle has been applied even to cases where the legislature had no power to amend and repeal, and where power was given to the company by its charter to fix its rates. The State may regulate the rates provided its 324 CONPTITITTIONAL LAW. not empower a commission to fix rates final;y without opportunity for a judicial hearing on the question of their reasonableness.^ Miscellaneous Cases. — Some police regulations have been contested, as amounting to a virtual destruction of propert}' ; for example, those prohibiting the sale of spirit- uous or malt liquors as a beverage, and those establish- ing limits in cities within which buildings of wood shall not be constructed or repaired. But there is no doubt that the legislature in its discretion may establish such regulations.^ Implied Contracts. — Implied contracts, as well as those made in express terms, are within the protection of tlie Constitution.' Under this head may be classed judg- ments and decrees, and all statutor3' liens and rights of redemption when they spring from or originate in con- tracts, and are in accordance with the law when the con- tract was made.* State Control of Remedies. — What is said further on respecting the control of remedies by the State is appli- cable as well to contracts as to other rights. But the State must always give some remed3^ and it must be sub- stantially the equivalent of that which was provided by law when the contract was made. The withdrawal of the remedy for a time by stay laws is an impairment of the obligation of contracts.* So is any law which, under regulation does not amount to confiscation. Railroad Com. Cases. 116 U. S. 307 , Georgia R. R. Co. o. Smith, 128 U. S. 174. , See Dow ... Beidelman, 125 U. S. 680. But the State cannot control the rates charged for interstate carriage. Wabash, &c. Ry. Co. u. Illinois, 118 U. S 557 1 Chicago, &c. Ry. Co. a. Minnesota, 134 U. S. 418. 2 License Cases, 5 How. 504 ; Mugler v. Kansas, 123 U. S. 623 ; Commonwealth v. Intoxicating Liquors, 115 Mass. 153; Insurance Co. V. Brown, 11 Mich. 265. See Transportation Co. v. Chicago, 99 U. S. 635. 3 Fisk y. Jefferson Police Jury, 116 U. S. 131. * Gunn V. Barry, 15 Wall. 610. ' Cooley, Const Lira., 6th ed., 854, and cases cited. PROTECTION TO CONTRACTS AND PROPERTY. 325 the pretence of changing the vemedj-, undertakes to com- pel the party to accept something different in the place of that for which he contracted ; as, for example, land at an appraisal in the place of money.'^ So is any law which gives a preference in paj-ment of one creditor over an- other, which the law when their contracts were made did not give, even though the preferred creditor is the State itself' So is any law which takes awaj' from the creditor any substantial right which the contract assured to him ; for example, the right tO' the possession of mortgaged lands until the mortgage debt is paid.' So is any law which so far increases the exemptions from executions issued on judgments as seriouslj- to impair the value of the remedy, and reduce the probabilities of collection.* Even the power to tax ma}' sometimes become an impor- tant element in the obligation of a contract. Thus, if a city contracts debts at a time when it has by law ample power to levy taxes for their paj'ment, the creditor has a right to rely upon this power as the means by the emplo}'- ment of which his debt shall be satisfied, and the State cannot afterwards withdraw the power, or so restrict it as to render paj'ment by means thereof impossible, and an act for that purpose would be inoperative as to existing debts.= Reasonable limitation laws a State may always pass, and make them applicable to existing contracts.* So the State maj' make and enforce insolvent laws when there is no national bankrupt law in. existence, and under these 1 McCracken v. Hayward, 2 How. 608. ■^ Barings v. Dabney, 19 Wall. 1. s Mundy v. Monroe, 1 Mich. 68. Or the right to apply the coupons of state obligations In payment of state taxes. Poindexter v. Green- how, 114 U. S.-270, and cases cited. * Gunn V. Barry, 15 Wall. 610. 5 Von Hoffman v. Quincy, 4 Wail. 535 ; Galena v. Amy, 5 Wall. 705 ; Broughton v. Pensacola, 93 U. S. 266 ; Nelson v. St. Martin's Parish, 111 U. S. 716. « Bell V. Morrison, 1 Pet. 351 ; Terry v. Anderson, 95 U. S. 628. 326 CONSTITUTIONAL LAW. may discharge debtors from further liability on their con- tracts on such terms and conditions as shall be reasonable. But such laws can only be applied to contracts subse- quently made within the State, and between residents thereof.* Contracts of Guaranty. — Contracts of suretj'ship or of secondary liability are as much within the protection of the Constitution as are the principal contracts which they secure, or on which they depend. Therefore, where the law makes stockholders in a corporation liable for the cor- porate debts, the liability, so far as existing debts are concerned, is one which cannot be taken awaj' or reduced by a change in the law.^ But penalties imposed hy stat- ute may be released by statute at any time before the^' are actually recovered.' Objectionable Considerations. — The fact that a contract had its origin in a consideration now recognized as im- moral and insufficient is immaterial, provided it was suffi- cient under the law at the time. Therefore, contracts for the purchase price of slaves were enforced after emanci- pation, notwithstanding the State by its constitution had provided that they should not be ; the States having no more power to impair the obligation of a contract hy con- stitutional provision than by any other law.* Adding to Contracts. — It is as incompetent to import new terms into a contract as it is to take away or detract from the force of those alread}' there. But this point wiU receive some attention hereafter. 1 Ogden V. Saunders, 12 Wheat. 273 ; Baldwin v. Hale, 1 Wall. 223 ; Carbee v. Mason, 64 N. H. 10. A state insolvent law, passed while a national bankrupt law is in force, is not utterly void, but be- comes good after the repeal of the bankrupt law. Tuas. Carriere, 117 U. S. 201. 2 Ochiltree v. Railroad Co., 21 Wall. 249. ' Confiscation Cases, 7 Wall. 454 ; United States v. Tynen, 11 Wall. 88. » White V. Hart, 13 Wall. 646. See Delraar v. Insurance Co., 14 Wall. 661 ; Marsh v. Burroughs, 1 Woods, 463 ; Swain v. Seamans, 9 Wall. 254. PROTECTION TO CONTKACTS AND PROPERTY. 327 Is Congress restrained? — That Congress should not have been prohibited from impairing the obligation of con- tracts, as the States were, may well excite some surprise. It was certainlj- never intended that Congress under any circumstances should exercise that tyrannical power, and it probably never occurred to any one as possible that it would ever attempt to do so. While, if it should attempt it, in the case of private contracts, the act, it would seem, might well-be held not to be legitimate legislation, and therefore incompetent and void,''^ j'et the clause is consid- ered not to appl}' to congressional legislation.^ In respect to contracts by the government itself, so long as the\- re- main executory, if it shall choose not to perform them, there can be no redress. A government cannot be com- pelled to pay its debts against its will by any process short of war or of forcible reprisal. And Congress may indi- rectlj- impair the obligation of private contracts, through its power to debase the currency and to establish and change the law of tender, as it did to some extent in the act making treasury-notes a lawful tender in payment of pre-existing debts. For such wrongs onlj'the political remedies can be available. Section II. — Protection to Propeett. The Constitution. — The fifth amendment to the Con- stitution provides that no person shall be deprived of property without due process of law. This provision is a restraint upon the federal powers only. The fourteenth amendment supplements this by providing that no State shall deprive any person of property without due process of law. What is Property ? — That is property which is recog- nized as such by the law, and nothing else is or can be. "Property and law are born and must die together 1 See opinion in Gunn v. Barry, 15 Wall. 610. 2 Mitchell V. Murphy, 110 U S. 633. 328 CONSTITUTIONAL LAW. Before the laws , there was no property ; take away the laws, all property ceases."' In America the law which determines what is property is for the most part tlie com- mon or customary law, though to this some additions are made by statute. Whatever a man produces by the labor of his hand or his brain, whatever he obtains in exchange for something of his own, and whatever is given to him, the law will protect him in the use, enjoyment, and dis- position of. The wild beast is the propertj' of him who captures and subdues it, provided he keeps it subjected to his dominion ; game belongs to him who slays it, and so on. The natural increase of domestic animals is the propertj- of the owner of the mother, and the natural pro- ductions of the soil, as well as the crops produced by the labor of man, belong to him who owns the soil. And the right to continue the practice of the learned professions is property' which cannot arbitraril3' be taken awa}'.^ When an article either intrinsically or by the use to which it is put becomes prejudicial, the law may withdraw from it the attribute of property, and then an_v one may be at liberty to destroy it. When anything becomes a nuisance, the party incommoded maj' destroy it if the nuisance cannot otherwise be abated ; and if the public are Incommoded, the right to abate is general. Sometimes things are declared nuisances by law because of 'their in- jurious influence upon the morals of the community ; as for example, lottery tickets when kept for sale, the imple- ments by means of which games of chance are played, when kept for gambling, and intoxicating liquors when offered for sale in violation of law. But when the wrong consists solely in the use to which an article, not a nuis- ance in itself, is put, tbe owner's property in it cannot be taken away until it has been judicially determined that a breach of the law has been committed. A private citizen 1 Bentham, Principles of tlie Civil Code, ch. 8. 2 Dent ii. West Virginia, 129 U. S. 114. PROTECTION TO CONTEACTS AND PROPERTY. 329 cannot determine for himself that a property right in some other person has been forfeited bj' disobedience of law.^ Who restrained. — The prohibitions of the Constitution applj" to all departments of government, and to all private citizens. The executive must of course always show au- tliority of law for his action : and when this is out of his power, what he does cannot be by due process of law. All ministerial officers must show warrant for everything they assume to do in apparent disturbance of the rights of others. The judiciar}', from the highest courts to the low- est, must exercise its authority within the limits permitted by law, or it will act without jurisdiction, and therefore without due process. The validity of judicial action is tested b}' the one ques- tion, Was it done with jurisdiction? Jurisdiction is com- monly said to be, first, of the subject-matter, and, second, of the persons concerned. The former divides itself into territorial and subjective. Every court has its territorial jurisdiction assigned to it by law, and its process is in- operative outside the prescribed limits. And within tliose limits the court may take cognizance of such causes of action as may be committed to it by law, and by the acts of parties having a right to bring suit. For example, the Circuit Court of the United States for the District of Del- aware has a territorial jurisdiction within that State only ; but to ascertain what may be the subject-matter of a suit in that court, it is necessary to consult the Constitution and the laws of the United States, and sometimes also the common law. The Constitution prescribes to what cases the jurisdiction may be extended ; the laws of Congress extend it to all these cases, or to less than all, as shall be deemed wise; but these laws are made with those common-law principles in view which determine what causes of action are local, and what are transitory. Thus, the Constitution permits a citizen of another State to sue a citizen of Dela- 1 Fisher v. McGirr, 1 Gray (Mass.), 1. 330 CONSTITUTIONAL LAW. ware in the United States Courts ; the law Oi" Congress au- thorizes the suit to be brought in the United States Circuit Court only when the amount or value in controversy ex- ceeds five hundred dollars. But if the matter in dispute was the recovery of possession of land in another State, it could not be brought in Delaware, because such an action is local, and must be brought where the land is ; while if it was the recover^' of the amount of a promissory note, it would be immaterial where the right of action arose, as such an action is always transitory ; bj- which is meant, that it maj' be brought wherever service can be obtained, if the local law permits. Consent can never confer jurisdiction of the subject- matter of suits. ■^ Courts are created, and their jurisdiction limited and defined, on considerations of general public policy, and parties cannot be suffered of their own discre- tion to modify and enlarge these limits. Therefore, where a court bj' law has no authority to take cognizance of a particular subject-matter in controversy, if it shall proceed to do so either party to the controversy may repudiate its action at anj' stage of the proceedings, and refuse to be hound by them ; and his previous consent to them, how- ever formal, can never be an impediment to his rejecting them.^ This is the conclusive reason wh3' divorces ob- tained coUusively by citizens of one State in the tribunals of another, are wholly inoperative and null ; for no court of one State can take cognizance of the domestic relations of another with a view to their dissolution.' Jurisdiction of the persons of litigants is acquired by courts in the following ways : — 1. Of the plaintiff", by his 1 Mordecai v. Lindsay, 19 How. 199 ; Montgomery u. Anderson, 21 How. 386 ; Coffin v. Tracy, 3 Cuines (N. Y.), 128 ; Preston v. Boston, 12 Pick. (Mass.) 7 ; Green v. Collins, 6 Ired. (N. C.) 139. 2 Bostwick V. Perkins, 4 Ga. 47 ; Ginn v. Rogers, 9 111. 131 ; Wiiite V. Buotianan, 6 Cold. (Tenn.) 32. 8 Cheever v. Wilson, 9 Wall. 108 ; Hoffman v. Hoffman, 46 N. Y. 30 ; People v. Dawell, 25 Mich. 247 ; Leith v. Leith, 39 N. H. 20. See Cooley, Const. Lim., 6th ed., pp. 494-5, and cases. PKOTECTION TO CONTKAOTS AND PROPERTY. 331 voluntary institution of suit ; and, 2. Of the defendant, by his being served with legal process at the commencement of suit, or by his voluntary appearance in suit without pro- cess, or after irregular service of process. This jurisdic- tion may always be given to courts b^- consent of the party, provided the subject-matter of the controversy is within their jurisdiction. Some cases are said to proceed in rem, because the pro- cess which begins them is served upon the thing which is the subject of controversy, instead of upon parties, and the pleadings and other proceedings take notice of the thing in litigation, and not of those interested in it. The law or the practice of the court may require notice to be given in some form to the parties concerned before final judgment, but the jurisdiction is obtained by the original seizure or service. Irregularities in Judicial Action. — When a court has acquired jurisdiction, it may nevertheless exercise it irreg- ularlj'. An irregularity consists in the failure to observe that particular course of proceeding which, conformably to the practice of the court, ought to have been observed in the case. It is a general rule that, while a want of juris- diction renders the proceedings of a court void, an irregu- larity onh' subjects them to be avoided on a direct proceeding instituted for the purpose.'' ^ The proper pro- ceeding is either, — 1. An application to the court in which the irregularity occurred, to set aside all action based upon or affected hy it ; or, 2. The removal of the case to some appellate court or jurisdiction for the correction of the error as right and justice may require. But an irregular step cannot be taken advantage of in a collateral proceed- ing, but must be taken to be valid, while a want of juris- diction may alwaj's be inquired into, and the enforcement of a judgment obtained without jurisdiction can never be due process of law. 1 Wliite V. Crow, 110 U. S. 183; Weiss v. Guerineau, 109 Ind. 438; Levan v. Millholland, 114 Penn. St. 49. 332 CONSTITUTIONAL LAW. Divesting Rights by Legislation. — The legislature makes the laws, but cannot pass judgments or decrees, or make a law that is such in substance.' It must " govern by promulgated, established laws, not to be varied in par- ticular cases, but to have one rule for rich and poor, for the favorite at court and the countrj-man at plough." ^ Never- theless the general laws of the State may make different regulations for different kinds of business, and prescribe different rules for the different classes of people who com- pose the State. The rules of civil capacity and criminal responsibility are justly and properlj' made for different classes of people ; for minors and adults, for males and females, for the sound in mind and the insane, for those engaged in hazardous employments and those who are not, and so on. If an employment is one which concerns the general public, and requires for its proper usefulness that it should have the unhesitating confidence of the public, — as in the cases of bankers and carriers of passengers, — it may be proper that special and even severe regulations be established to prevent the confidence being abused, and to insure that the public reliance shall be justified. To compel the observance of these under penalties is neither unjust nor unconstitutional. Vested Mights. — The test of unlawful interference with property is that vested rights are abridged or taken away. Eights are vested, in contradistinction to being expectant or contingent. They are vested when the- right to enjo}'- ment, present or prospective, has become the property of some particular person or persons as a present interest.' They are expectant, when they depend upon the continued existence of a present condition of things until the happen- 1 Tyson. u. School Directors, 51 Penn. St. 9; Gaines v. Buford, 1 ' Dana (Ky.), 481. 2 Locke on Civil Government, § 142 ; Griffin v. Cunningham, 20 6r8t. (Va.) 31. 3 For example, as to public lands, a purchaser has no vested in- terest till he has done everything required by law to be done by him to complete his title. Campbell o. Wade, 132 U. S. 34. FEOTECTION TO CONTRACTS AND PROPERTY. 333 ing of some future event. They are contingent, when thej- are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting. Rights in Expectancy. — The man who to-day erects buildings and puts in them machinery for the manufacture of some important article of common consumption, on the importation of which the law imposes a tariff duty which is practically prohibitory, ma3- expect that this will con- tinue in force, and that he will in consequence reap large profits from his manufactorj'. But he has no vested right in the general laws of his country which entitles him to in- sist that any one of them shall remain unchanged for his benefit ; ■" and if the dutj' shall be removed, and his prop- erty rendered worthless in consequence, he is nevertheless deprived of no right. All statutory privileges depend upon this principle, and they may be taken away by changes in the general laws at any time. The privilege of exemption from arrest, exemption from taxation, exemption of prop- erty from forced sale on execution, and exemption from jury duty, are all within the principle. Even an exemption from military duty, granted by the law after full perform- ance of dutj- for some previouslj' fixed period, may be withdrawn when the exigencies of the State appear to require it.^ So the rules of descent may be changed in the legislative discretion, though thereby the expectations of living per- sons under the previous laws are disappointed. The living have no heirs, and the laws which provide who shall be their heirs in the event of their, death are only expressive ^ ■■ A person has no property, no vested interest, in any rule of the common law. . . . Rights of property, wiiich have heen created by the common law, cannot be taken away without due process ; but the law itself as a rule of conduct may be changed at the will, or even at the whim, of the legislature, unless prevented by constitu- tional limitations." — Munn v. Illinois, 94 U. S. 113, 134. 2 Comtnonwealth v. Bird, 12 Mass. 443 ; Swindle v. Brooks, 34 Ga. 67 ; Murphy v. People, 37 111. 447 : State c. Wright, 53 Me. 328. 334 CONSTITUTIONAL LAW. of present views of what is best, and may be changed as these views change ; and no vested rights can be impaired, since no rights under these laws can vest while the owner of the estate is living. The expectation is not property- ; it cannot be sold or mortgaged ; it is not subject to debts ; and it is not in anj' manner taken notice of bj"^ the law until the moment of the owner's death, when the statute of descents as it then exists comes in, and for reasons of general public policy passes the estate to persons standing in certain degrees of relationship to the deceased, in pref- erence to all others. It is not until that moment that there is any vested right in the person who becomes heir.^ So qualities annexed to estates, and to effect their enjoy- ment in the future, maj' be changed when the interests of the owners are not rendered less beneficial. Estates tail maj' be changed into estates in fee simple, estates in joint tenanej' into estates in common.^ So the expectant right of the husband to an estate by the curtesy in his wife's lands maj- be taken away by general legislation at any time before it has become initiate by the birth of living issue of the marriage,' and the expectant right- of the wife to dower in her husband's lands at any time before it has passed from the condition of expectancy and become perfected by the husband's death.* The marriage gives no vested right in either of these cases. Trust Interests. — Where one holds property for an- other, the vested right which the law regards is not that of the trustee, but of the beneficiary. It is a perfectly legitimate exercise of legislative power to convert equit- able estates into legal, thereby whollj' divesting the trus- tee of his legal ownership. The Statute of Uses ' had this 1 Cooley, Const. Lim., 6th ed., 439. 2 Holbrook v. Finney, 4 Mass. 465 ; Burghardt v. Turner, 12 Pick. (Mass.) 534. .See Comstock v. Gay, 51 Conn. 46. 8 Breeding v. Davis, 77 Va. 639 ; Hatlion v. Lyon, 2 Mich. 93. * Lucas v. Sawyer, 17 Iowa, 517; Noel v. Ewinft, 9 Ind. 37 ; Pratt V. Teffi, 14 Mich. 191 ; "Westervelt v. Gregg, 12 N. Y. 202. 6 Stat. 27 Hen. VIII. o. 10. PEOTECTION TO CONTRACTS AND PROPERTY. 335 for its main purpose, and its general features have been re-enacted in many States of the Union, and recognized by judicial decision in others. Trusts arising by construc- tion of law to prevent frauds are subject to a like legisla- tive control, but with this limitation : that, as the legislature cannot adjudge that a fraud has been committed, the sup- posed trustee, if he claims the property-, must have a right to a judicial hearing upon his claim before he can be dis- possessed. And as between those who claim adversely' as beneficiaries the legislature can never decide, but they must be left to litigate their conflicting claims in the courts.^ Curative Laws. — One method in which beneficial in^ terests are protected by legislation is hy a retrospective correction of errors and defects in conveyances. A lead- ing case on the subject was one in which a statute was passed to validate certain leases of land which under pre- vious judicial decisions had been declared inoperative. By the express terms of the statute it was made applica- ble to pending suits in which contracts of leasing might come in question. It was sustained as undoubtedly' valid, though it was contested as a law impairing the obligation of contracts.'' Manifestly, it had no such eflTect as was pretended ; it rather imported into the contract an obliga- tion which the parties had attempted, but failed, to in- corporate in it. And this is the principle on which all such laws may be sustained ; they merely give legal va- lidity to what the parties have attempted to accomplish ; converting their invalid agreements into the valid con- veyances which they undertook to make. Presumptively, therefore, these laws further the intent the parties had in view. It may happen that the grantor in the invalid convey- ance, when he finds the title has not been transferred, may desire to take advantage of the invalidity, and-may insist 1 Cash, Appellant, 6 Mich. 193 ; Lane v Dorman, 4 III. 238. 2 Satterlee v. Mathewson, 16 S. & R. (Penn.) 169; s. c. in error, 2 Pet. 380. 336 CONSTITUTIONAL LAW. that he has a vested right which the legislature cannot take away. But obviously he has in such a case no equitable right. In equity he is considered as holding for the benefit of the party to whom he undertook to convey ; and, as has been well said, " Courts do not regard rights as vested contrary to the justice and equity of the case." ' This principle has been applied to the conveyances of married women, and they have been validated retrospec- tively, though they were so entirely void in their origin that they did not constitute even a contract, or raise an equity which could be taken notice of judicially.^ The woman has no right to complain if the law which pre- scribed forms for her protection shall interfere when jus- tice demands it, to preclude her taking advantage of an imperfection in her own act^ if, however, the grantor in the invalid convej'ance shall subsequently convey in due form of law to a bona fide pur- chaser, the previous deed cannot afterwards be corrected to his prejudice. The reason is, that he has equities equal to those of the first purchaser, and having connected the legal title with these, his right, according to well-settled rules of the courts of equity, has become unassailable.* And if the defective conve3'ance was one which for any other reason was inoperative ; ,as where the grantor as- sumed to convey by it contrary to conditions or qualifica- tions whicli, for the benefit of others, were imposed upon his title, or in fraud of the rights of others whose repre- sentative or agent he was, it is not in the power of the legislature to validate it retrospectivelj', since validating it 1 State V. Newark, 27 N. J. 185, 197; Foster k. Essex Bank, 16 Mass, 245; Brown v. New York, 63 N. Y. 239 ; Chestnut v. Sliane's Lessee, 16 Ohio, 599; Read v. Plattsmouth, 107 U. S. 568. See Gross V. United States M'tg'e Co., 108 U. S. 477. 2 Watson V. Mercer, 8 Pet. 88 ; Underwood v. Lilly, 10 S. & K. (Penn.) 97 ; Deutzel v. Waldie, 30 Cal. 138. 3 Goshorn v. Pureell, 11 Ohio St. 641. * Brinton v. Seevers, 12 Iowa, 389 ; Le Bois v. Bramel, 4 How. 449; Sherwood v. Fleming, 25 Texas, 408 (Supplement). PROTECTION TO CONTRACTS AND PROPERTY. 337 would divest equities instead of perfecting them.' An in- valid will, or trust in a will, can never be helped after the testator's death, for the obvious reason that titles vest un- der it imraediateh'.^ The defects in convej-ances and contracts which render them inoperative arise from two causes: — 1. Defect in legal capacity in the party making them ; 2. Failure to observe some legal formality in their execution. The former may arise from nonage, coverture, or guardian- ship, or it may be a defect of intelligent will. The disa- bilities which are imposed by the law itself maj' be removed or modified by a change in the law. The same is true of legal formalities : the statute establishes what are deemed important, and the statute may dispense with them. And the general rule is this : it is competent for the legislature to give retrospectively the capacit}' it might have given in advance, and to dispense retrospectivelj- with any formality it might have dispensed with in advance.^ But it can never, either prospectively or retrospectively, dispense with the act of assent, and therefore cannot validate the deed of an insane person.* The power to correct applies to all classes of contracts. A marriage defective in formalities of execution maj- be validated retrospectively ;■' so maj* notes and bills issued by a corporation on which the power has not been con- ferred b}' its charter ; * so maj' negotiable paper which is wholly or in part void for usury.' It is not an uncommon 1 Slionk y. Brown, 61 Penn. St. .320. 2 Hilliard v. Miller, 10 Penn. St. 326 ; Greenough v. Greenough, 11 Penn. St. 489 ; Alter's Appeal, 67 Penn. St. 341 ; State v. Warren, 28 Md. 3.38. 3 Single V. Supervisors of Marathon, 38 Wis. 363. * Routsong V. Wolf, 35 Mo. 174. 5 Goshen v. Stonington, 4 Conn. 209. ^ 6 LewLs D. MoElvain, 16 Ohio, 347; Trustees w. McGaughy, 2 Ohio St. 152. . ' Savings Bank v. Allen, 28 Conn. 97 ; Thompson v. Morgan, 6 Minn. 292; Parmelee v. Lawrence, 48 111.831; WoodrufE «. Scruggs, 27 Ark. 26. 22 338 CONSTITaTIONAL LAW. exercise of legislative power to validate the imperfect con- tracts of municipal corporations, whether the defect con- sists in a want of original power in the corporation to do what was attempted, or in neglect of proper formahties in entering into them.' Curing Defects in Judicial Proceedings. — It is a well- settled principle' that the legislature can never, bj- retro- spective proceedings, cure a defect of jurisdiction in the proceedings of courts. The reason is manifest. Such proceedings being utterly void, thej- would acquire vitality as judicial acts, if at all, hy the legislative act exclusively, and the curative act must therefore be, in its nature a judgment.'^ But mere irregularities in judicial proceedings ma3' alwaj's be cured retrospectively. A leading case was where a sale in a partition case was ineffectual, be- cause the pui-chase was made by Several, and the deed was made to one only. But it appeared that the deed was so made by mutual agreement of all, for convenience in making subsequent sales and conveyances, and a healing statute was consequently in furtherance of justice, and unobjectionable.^ So execution sales have been validated where the defect consisted in an overcharge of officer's fees on the execution,^ and sales b}" executors and guardians where various irregularities existed not affecting the sub- stantial interests of the parties concerned." Indeed, it is not uncommon to provide bj' general law that certain ^ Booth V. Woodbury, 32 Conn. 118; Crowell v. Hopkinton, 45 N. H. 9; Ahl v. Gleim, 52 Penn. St. 432 ; State v. Demorest, 32 N. J. 528 ; Coffnian v. Keiglitley, 24 Ind. 509 ; Mills v. Charlton, 29 Wis. 400; Morris v. State, 62 Tex. 728. See Mattingly v. District of Columbia, 97 U. S. 687 ; Strosser v. Fort Wayne, 100 Ind. 443. 2 McDaniel v. Corretl, 19 III. 226; Denny v. Mattoon,2 Allen, .361; State V. Doherty, 60 Me. 604. A legislative act cannot authorize courts to change the effect of decrees which have become final. Roche V. Waters, 72 Md. 264. 3 Kearney «. Taylor, 15 How. 494. See Boyce v. Sinclair, 3 Bush (Ky.),261. * Beach v. Walker, 6 Conn. 190. » Davis V. State Bank, 7 Ind. 316; Lucas v. Tucker, 17 Ind. 41. PEOTECTION TO CONTKACTS AND PROPERTY. 339 specified defects and irregularities occurring in such sales shall not affect them ; and the right to enact such a law is undoubted.* Administrative Proceedings. — The same principle applies in all administrative proceedings. For example, irregular proceedings in taxation may be made good retrospectively,'' but subject to this limitation, that there must originalljf have been in the oflScers jurisdiction to impose the levy ; and they must have made it in accord- ance with the general principles which underlie the power to tax.' An instance of the failure to observe these prin- ciples would be a levy without an apportionment among the subjects taxed ; an arbitrary levy being no tax at all. And a tax sale effected by fraud is incapable of confirma- tion.* Defects in execution or mortgage sales, or in the execution of any statutory power, may be cured under the same rules. ^ And so may irregularities in the proceed- mgs of public and private corporations.® Mights of Action. — It is not competent by legislation to bring into existence and establish against a party a demand which previously he was neither legally nor equit- ably bound to recognize and satisfj'.' On the other hand, 1 Toll V. Wright, 37 Mich 93 This wliole matter of Retroactive Laws is fully and carefully examined in Mr Wade's treatise on that subject. 2 Butler V. Toledo, 5 Ohio St. 225 ; Iowa, &e Co. v. Soper, 39 Iowa, 112; Astor v. New York, 62 N. Y. 580; Sturges v. Carter, 114 U. S. 511. " People V. Lynch, 51 Cal 15 ; Houseman v. Kent Circuit Judge, 58 Mich. 364. * Conway v. Cable, 37 III. 82. ' Allen V. Archer, 49 Me. 346 ; Commonwealth v. Marshall, 69 Penn. St. 328. 6 Thompson v. Lee County, 3 Wall 327; Mitchell v. Deeds, 49 111. 416 ; State w. Guttenburg, 38 N. J. 419. ' Medford o. Learned, 16 Mass. 215 ; Albertson v. Landon, 42 Conn. 209 ; People v. Supervisors, 43 N Y 1.30 ; Ohio, &c. R. R. Co. ». Lackey, 78 111.55, Cottrel v. Union Pac. Ry. Co., 21 Pac. Rep 416 (Idaho) ; Miller v. Dunn, 72 Cal 462. 340 CONSTITUTIONAL LAW. it is not competent for the legislature to deprive a party of a right of action accruing to him under the rules of the common law, or m accordance with its principles. There- fore the right to redress for illegal arrests cannot be taken away;' neither can the right to recover back taxes ille- gally exacted,^ nor the right to have a void tax-sale set aside.' Nor can conditions to the exercise of the right be imposed, which are of a nature to render it practically of no value.* But an action for a forfeiture, given by and depending on statute, will be gone if, before recovery, tht. statute is repealed without expressly saving it.' A statute of limitation takes away no right of property. Such a statute prescribes a reasonable time within which a party claiming legal rights which another withholds shall commence legal proceedings for their enforcement, and it withdraws the privilege of suing if the time is suffered to elapse without action." This is a proper and reasonable regulation of a right ; not a denial of it.' And when the time limited by the statute has been suflfered to elapse without suit, so that the right of action is gone, it is not competent to revive it by retrospective legislation, since this would be equivalent to creating a new demand.' But 1 Johnson v Jones, 44 111. 142 , Griffin v Wilcox, 21 Ind. 370, 2 Htihbard w Brainerd, .35 Conn. 56.3. s Wilson « McKenna, 52 111, 43. * McFarland v. Butler, 8 Minn. 116; Wilson u. McKenna, 52 HI. 43 i Lassitter v Lee, 68 Ala 287. Compare Coats «. Hill, 41 Ark. 149. 5 Ante, p. 326 ; Miller v. White, 50 N. Y 139 ; Breitung v. Lin- daiier, 37 Mich. 217. « Bell V. Morrison, 1 Pet. 351 , Koshkonong- v. Burton, 104 TJ S. 668. '• Bell V. Morrison, 1 Pet. 351 ; Wiieeler v. Jackson, 137 U S. 245; State V. Jones, 21 Md 432; Pitman v. Bump, 5 Oreg. 17, ' Brent v Chapman, 5 Cranch, 358 ; Lockhart v. Horn, 1 Woods, 628, Reformed Church u. Schoolcraft, 65 N. Y. 1.34; Atkinson o. Dunlap, 50 Me. Ill ; Yancy v. Yancy, 5 Heisk. 353; Thompson v. Reid, 41 Iowa, 48 ; Rockport v. Walden, 54 N H. 167 ; Hicks v. Stei- gleman, 49 Miss. 377; Horbach u. Miller, 4 Neb. 31; Bradford v. Shine, 13 Fla. 393. In Campbell v Holt, 115 U. S. 620, it is held that PKOTECTION TO CONTRACTS AND PKOPEETY. 341 all limitation acts must allow to claimants a reasonable opportunity to assert their rights in court, and one en- tirely and manifestly unreasonable in the time it gives is void.' It IS a rule of construction that a statute of limitation does not apply to suits instituted by the State itself, unless it is so provided in express terms. '^ And state statutes cannot limit suits by the United States.' Remedies. — The power to provide remedies for all civil wrongs, and to change them when found ineffectual, or when others shall promise to be more effectual, is and must be continuous. The citizen has no vested right to any partic- ular remedy, and the State may therefore take away at discretion those it provides, and substitute others which shall apply to wrongs already committed as well as to those which may be committed thereafter.* The exceptions to this general statement are, that the remedy "given must be one which recognizes and gives effect to the obligation of the contract when the wrong grows out of non-perform- ance of contract,' and it must in any case be a remedy calculated to give redress, and not merely colorable.^ A judgment for a tort, not being based upon the assent of parties, is not a contract, and the means of enforcing such a judgment may be taken awa}' entirelj'.' And no right m there is a distinction between property adversely held and a promise to pay a debt ; tliat one has no property in the bar of the statute as a defence to the promise, but that the repeal revives the right to recover against him on liis agreement. 1 Pereles v. Watertovpn, 6 Biss. 79; Hart v, Bostwick, 14 Fla. 162; Berry i). Ramsdell, 4 Met. (Ky.) 292 , LudwigK. Steward, 32 Mich, 27 ^ Gibson v. Chouteau, 13 Wall. 92. » United States v. Hoar, 2 Mason, 311. « Railroad Co. v. Hecht, 95 U, S. 168; Tennessee v. Sneed, 90 U. S. 69 6 McCracken v. Hayward, 2 How. 608 ; Gantley's Lessee v. Ewing, 8 How. 707 : Bronson v. Kinzie, 1 How 311. Oatman v. Bond, 15 Wis. 20; Walker w. Whitehead, 16 Wall 314. 1 Louisiana v. New Orleans, 109 U. S. 285 ; Freeland v Williams, 131 U. S. 405. 342 CONSTITUTIONAL LAW. property is violated, and no wrong done, when a new or additional remedy is given for a right or equity previously in existence, and not sufficiently provided for before. This often becomes important to the accomplishment of effectual justice.^ An alteration in the rules of evidence is often one of the most serious modifications of remedies ; but the power in the legislature to make it is undoubted, and the changes may be made to apply in the investigation of causes of ac- tion previously accruing.^ So the burden of proof may be changed from one party to the other by legislation ; as has often been done by statutes which make a deed given on the sale of lands for taxes prima facie evidence of a com- plete title in the grantee, whereas before such statutes the grantee would be compelled to make out his prima facie case by showing that the proceedings anterior to and upon the sale were regular.* The statutes making defective rec- ords of convej'ances evidence, notwithstanding the defects, is a further illustration of legislative power in this regard.* Such laws presumptively wrong no one. They provide such method of investigating the truth as seems likely to be most effectual and just for the particular cases men- tioned, and thej' preclude no one from establishing his rights. A statute which should undertake to establish conclusive rules of evidence, whereby a party might be excluded from any opportunity to show the facts, on the affirmative presentation of his adversary's case, would be nothing short of a statute of confiscation, and manifestly 1 Hope V. Johnson, 2 Yerg. (Tenn.) 123 ; Danville v. Pace, 25 Grat. ( Va.) 1 , Bartlett v. Lang, 2 Ala. (n. s.) 401 ; Chaffe v. Aaron, 62 Miss. 29 ; Schoenheit v. Nelson, 16 Neb. 235. 2 Ogden V. Saunders, 12 Wlieat. 213, 249 ; Webb v. Den, 17 How. 677 ; llioli V. Flanders, 39 N. H. 304 ; Gibbs v. Gale, 7 Md. 76. 8 Sprague v. Pitt, MoCahon (Kans.), 212; Callanan v. Hurley, 93 U. S. 387 i Hand v. Ballou, 12 N. Y. 541. So this rule when estab- lished may be abolished as to existing deeds. Gage v. Caraher, 125 111. 447 ; Strode w.' Washer, 17 Oreg. 50. 4 Webb V. Den, 17 How. 577. PKOTECTION TO CONTRACTS AND PBOPBRTY. 343' in violation of constitutional right.^ In saj-ing this we ex- cept all those cases to which the principle of estoppel may be justly applied ; that principle being that a party shall be precluded -from showing a state of facts differing from that which by his own conduct or assurances he has induced another to believe in and act upon, wlien the effect would he to deceive and defraud the party so acting. This is a valuable and just principle recognized by the common law and in equitj-. betterment Laws. — Those laws which charge a man's land with a lien in favor of one who, while holding it ad- versely in good faith, has expended his money in improve- ments upon it, seem at first view to be laws creating demands for the improvement of one's lands against his will ; but as they only recognize an equity to the payment for benefits which he must appropriate when he recovers his land, they are not unjust and not unconstitutional.'' All such laws give the owner the option to pay for the im- provements and take the land, or to abandon the land to the occupant, and recover its value without the improve- ments ; which is as much as in justice he can claim. It would not be competent to make him personally liable for the improvements.' Sales for Taxes. — Taxes may always be levied through administrative proceedings, the assessors exercising quasi judicial authority in so doing. This is due process of law for such cases.* The collection of taxes may be enforced by suits, by sale of property, or by forfeiture for lion-pay- ment or for attempts to evade the law. Where the tax is a personal or property tax, it is most commonly collected i Wright V. Cradlebaugh, 3 Nev. 341 ; Groesbeck v. Seeley, 13 Mich. 329; East Kingston v. Towle, 48 N. H. 57. 2 Whitney v. Richardson, 81 Vt. 300; Ross v. Irving, 14 III. 171. » Childs V. Shower, 18 Iowa, 261 ; McCoy v. Grandy, 3 Ohio St. 463. ♦ Cruikshanks w. Charleston, 1 McCord (N. O.),.360; Weimer w Bunbury, .30 Mich. 201. 212 ; Davidson v. New Orleans, 96 U. S. 97; Hagar o. Reclamation Dist., Ill U. S. 701. 344 CONSTITUTIONAL LAW. by means of a seizure and sale of property. The general rule is, that in proceedings for this purpose the officers must follow the law with some strictness, and complj- with all those provisions which are enacted for the protection of the person taxed. ^ For the collection of imposts and ex- cise taxes the United States has always made provision under which forfeitures may be imposed for evasions of the law. The forfeitures sometimes extend, not merely to the IDToperty or thing in respect to which the tax is imposed, but to the building or ship which has been made the instru- ment of accomplishing the fraud upon the revenue. For- feitui'es are judiciallj' declared, and, as they accrue at the time when the illegal act was committed, it is held that the judgment relates back to that time, and will cut off the right of a subsequent bona fide purchaser.^ Section III. — The Eminent Domain. The Constitution. — In the fifth amendment to the Con- stitution, the fact is recognized that in some cases the necessities of the government must override the rights of private ownership, and compel the surrender of specific private property to the public use. To prevent oppression in such cases, it is provided that private property shall not be taken for public use without just compensation. This is a declaration of the, underlying principle of the law of eminent domain. Definition. — The eminent domain may be defined as the lawful authority whicii exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may de- mand. The most important of these public rights consist 1 Stead V. Course, 4 Cranch, 40-3 ; Williams v. Peyton, 4 Wheat. 77 2 Henderson's Distilled Spirits, 14 Wall. 44. See United States v. The Reindeer, 2 Cliff. 57. PROTECTION TO CONTRACTS AND PROPEETr. 345 in the use of the public highways, by land or by water, and to participate in the public fisheries. Highways and other public conveniences, however, must be provided by the State in the exercise of the eminent domain ; and as the legal controversies respecting its principles usually arise in connection with appropriations for these purposes, the right itself is often spoken of and treated as if it were restricted to such cases. State and Nation. — As between the United States and the several States, the regulation and protection of private rights, privileges, and immunities belongs primarily to the States, and the States are expected to make provision for the conveniences and necessities of public travel, and for the other wants of the general public, or of tlie State itselfj which are commonly supplied under this right. Tlie emi- nent domain, therefore, pertains in general to the States, not to the United States. Nevertheless, for all national purposes it is in the United States, and the government may exercise the power of appropriation as an attribute of the national sovereignty.^ And Congress may give a railroad companj' created under a State law the right to exercise the power of eminent domain in a Territory.'' In the Ter- ritories the general right belongs to the United States, but it is within the ordinary compass of territorial legislative power to exercise it for local purposes. When the Terri- tory is admitted into the Union as a State, the right passes with all its incidents to the new sovereigntj-.' Among these incidents is the right to the sea-shore below the line of private ownership.* Legislation essential. — But although the right is inhe- rent in sovereignty, it lies dormant until legislation is had, 1 Kohl V. United States, 91 U. S. 367 ; Cherokee Nation i. Sou. Kans. Ey. Co., 135 U. S. 641. Tlie United States may delegate to a state tribunal the power to ascertain the compensation to be paid fol the property appropriated. United States «. Jones, 109 U. S. 513. 2 Cherokee Nation v. Sou. Kans. Ry. Co , 135 U. S. 641. * Weber v. Harbor Commissioners, 18 Wall. 57. * Pollard's Lessee v. Hagan, 3 How. 212. 346 CONSTITUTIONAL LAW. defining the occasions, methods, conditions, and agencies under and bj' means of which it may be exercised. And as an exercise of the right in the appropriation of private estates against the will of the owners is a severe instance of governmental convenience displacing private ownership, the rule is general that the legislation which permits it must be strictly construed and strictly followed, and that every precedent form or ceremony which bj- law is made a condition to a completed appropriation, must be had or ob- served before the right of the government will be perfected, and the right of the citizen appropriated.^ Distinguished from Taxation. — Taxation takes prop- erty from the citizen for the public use, but it does so un- der general rules of apportionment and uniformity, so that each citizen is supposed to contribute only his fair share to the expenses of government, and to be compensated for doing so in the benefits which the government brings him. What is taken under the right of eminent domain, on the other hand, is something exceptional, — some particular parcel or item of property of which the government has special need. The case, therefore, is not one in which there can be any apportionment of the burden as between the citizen whose propertj- is taken, and the bodj' of the communitj-, and compensation to him of a pecuniary na- ture must therefore be made. Equalization in anj- other mode is not possible. The Purposes. — The purposes for which the right of ap- propriation may be exercised must be determined hy the needs of the government, and be declared by law. The United States, in the exercise of the powers conferred upon it bj' the Constitution, maj- construct fortresses, light- houses, piers, docks, military roads, public buildings, &c., and for these or any other constitutional purpose may have need of land or material which the owner refuses to sell, or for which he demands an extortionate compensation. 1 Nichols V. Bridgeport, 23 Conn. 189 ; Burt v. Brigham, 117 Mass. 307. -PBOTBCTION TO CONTRACTS AND PROPERTY. 347 A.ny such purpose, is within the reason of the right, and maj' be supplied by means of its exercise. The State pro- vides for the ordinary highways, and for other state and municipal purposes, under a similar necessit}-, and under the same right.'' The limitation in either ease must be this : that the purpose must be public, and must be one which falls within the proper sphere of the government undertaking to make provision for it. The United States must judge of its own needs, and make provision for them, and the State must in like manner judge of and provide for its own : neither can exercise this right for the benefit of the other. ^ But though the appropriation must be made for some public use, it is not indispensably- necessarj- that it be made to the State or the nation itself. When the need provided for is municipal, as where it is for a city street or park or public building, the land will be taken to the corporate body having need of it, not to the State, and the corporate body may be permitted to be the actor in making the appropriation, and be clothed with the power of the State for the purpose. In some cases even a private corporation, when it has been created by law to supply some public convenience, may be endowed with the power of appropriation for the purpose, and is regarded as a public agent in exercising it. A familiar instance is that of a railroad company empowered by legislation to appro- priate a right of way to its own use.^ 1 The following are illustrations of what have been deemed public purposes, aside from highways and ordinary public buildings, for which property may be condemned : Public parks, Brooklyn Park Com'rs V. Armstrong, 45 N. Y. 234 ; sewers, Hildreth v. Lowell, 11 Gray, 345 ; markets. Re Cooper, 28 Hun, 515 ; expositions, Rees' Ap- peal, 12 Atl. Rep. 427 (Penn.); telegraph lines. Pierce w. Drew, 1.36 Mass. 75 ; union depot companies. Fort St. & Co. u. Morton, 83 Midi. 265. 2 Kohl V. l/nited States, 91 U. S. 367. " Beekraan v. Saratoga, &c. R. R. Co., 3 Paige (N. Y.), 45. 73 1 Secomb v. Railroad Co., 23 Wall. 108. 348 CONSTITUTIONAL LAW. The line of dist,inction between the purposes that are to be deemed public and those which cannot be, is not very accurately drawn by the authorities. It is certain that no government can under any circumstances divest one citizen of his estate for the benefit of another, — the public in- terest being in no way involved, — and this whether com- pensation is made or not.' The case of a private road is one of this sort, and it can only be allowed, it would seem, where the people bj' their constitution have assented to it.^ Nor in anj' case is the fact that the public will be inciden- tally benefited by the appropriation sufl3cient to supplj' the power, when the taking is purely for a private purpose. There are some cases, however, in which the improve- ment of private estates, where it cannot be accomplished without the appropriation of an easement for the purpose over the lands of others, has been deemed so far a matter of public interest as to bring the case within the principle of the law of eminent domain. Thus, it is held in some States that lands may be appropriated by flooding, to en- able the owners of mill sites to improve them for manu- facturing purposes,* and in Pennsylvania it seems that a private road may be laid out over the lands of an unwilling owner, to enable one who has a coal mine to obtain access to and develop it.* It may be said of these cases, that the easement taken enables dormant wealth, in the develop- ment of which the whole public is concerned, to be brought 1 Tyler v. Beacher, 44 Vt. 648 ; Bloodgood v. Mohawk, &c. H. R Co., 18 Wend. (N. Y.) 9. 2 Taylor V. Porter, 4 Hill (N. Y.), 140 ; Clark v. White, 2 Swan (Tenn.), 540; Consolidated Cannel Co. v. Cent. Pac. R. R. Co., 51 Cal. 269 ; Steele v. County Cotn'rs, 83 Ala. 804 ; Sholl v. German Coal Co., 118 111. 427 ; Logan v. Stogsdale, 123 Ind. 372. 3 Mills, Em. Dora., §§ 287, 288 ; Cooley, Const. Lira., 6th ed., 657, 659 ; Head v. Amoskeag Co., 113 U. S. 9. 1 Harvey v. Thomas, 10 Watts (Penn), 63. The same doctrine has been apijlied to a subterranean mining railway. De Camp v. Hibernia R. R. Co., 47 N J. L. 43. And see Phillips v. Watson, 63 Iowa, 28; Robinson u. Swope, 12 Bush, 21. PKOTECTION TO CONTRACTS AND PKOPEETY. 349 into use and added to the general wealth of the State ; and the same may be said where large swamps or other low lands owned b}' individuals are drained and made available by means of ditches cut across the lands of others, under the right of eminent domain.^ But these are extreme cases, and stand upon disputed ground. Lands may always be appropriated, however, for the drainage of others with a view to the benefit of the public health.^ Ac^udging the Necessity. — The State may not only determine upon the necessity' of some appropriation for its needs, but it may also decide for itself whether it is need- ful to take any particular estate or parcel of propert}' for the purpose. It is not of right that the property owner shall be heard upon this question, since, if it were, the pub- lic purpose might be defeated by an adjudication against the necessity. This is so improbable, however, that it is not uncommon to provide by law that the necessity shall be passed upon by a jury or by commissioners. When a corporation is permitted to make an appropriation, it may also be empowered to judge of the necessity, where other provision is not made by the Constitution. What may he taken. — The property which the Constitu- tion protects is anything of value which the law recognizes as such, and in respect to which the owner is entitled to a remedy against any one who maj' disturb him in its enjo}-- ment. It is immaterial whether the property be tangible or intangible, — whether the interest in it be permanent or merely temporary. A franchise is the subject of appro- priation equall}- with land, and the interest of the owners in it is also equally protected.^ So the complete and exclu- sive possession of his estate is assured to every owner as much as is the fee itself, and he may defend himself against 1 Matter of Drainage of Lands, 35 N. J 497 ; Talbot v. Hudson, 16 Gray (Mass.), 417. 2 Reeves v. Treasurer, &c., 8 Ohio St. 3.33. 3 Richmond, &c. R. R. Oo v. Louisa, &c. R R. Co , 13 Fow. 71; New Orleans Gas Co. u. La. Light Co., 115 U. S. 673. 350 CONSTITUTIONAL LAW. anj' trespass upon it, or any encroachment not made under the constitutional conditions. Therefore a telegraph com- pany cannot set its poles along the line and upon the right of way of a railroad, until it shall first have obtained per- mission, or made lawful appropriation of the laud for the purpose.-' And it has been held that a telephone company cannot put up its poles along the right of waj- of a railroad company with its consent without compensating the owners of the fee.^ So there is an appropriation of propertj' where its value is taken, either wholly or in part, bj- something done or set on foot at a distance ; as where, bj- means of a dam across a watercourse, one's land is flooded with drift- wood, or sediment,^ or where, by the occupation of the street in front of his lot, he is cut off from his means of access to it ; ' or where, after the State has granted an ex- clusive privilege, it grants another which competes with it,^ and the like. Where land has once been appropriated to public use, there cannot be a new appropriation of it without distinct and express legislative authority." 1 Atlantic, &c. Tel. Co. v. Chicago, &c. R. R. Co., 6 Biss. 158. 2 American Tel. Co. v. Pearce, 71 Md. 635. This is in line with Telegrapii Co. v. Barnett, 107 III. 507 ; Mgtrop. Tel. Co. v. Colwell Lead Co., 67 How. Pr. 365 ; W. U. Tel. Co. v. Williams, 86 Va. 696, where it is held that the erection of such poles and wires on a high- way is a new use of it, entitling the owners of the fee to compensa- tion. In Julia Building Ass. v. Bell Tel. Co., 88 Mo. 258 ; Pierce v. Drew, 136 Mass. 75, the opposite conclusion is reached. 8 Pumpelly v. Green Bay Co., 13 Wall. 166. ♦ Lackland v. Railroad Co., 31 Mo. 180; Schneider v. Detroit, 72 Mich. 240 ; Columhus, &c. Ry. Co. v. Witherow, 82 Ala. 190. But see Conklin v. New York, &e. Ry. Co., 102 N y."l07 ; Henderson v. Min- neapolis, 82 Minn. 319. 5 Central Bridge Corp. ii. Lowell, i Gray (Mass.), 474; Common- wealth V. Penn. Canal Co., 66 Penn. St. 41. <* In re Boston, &e. R. R. Co., 53 N. Y. 574 ; Prospect Park, &c. R. R. Co. V. Williamson, 91 N. Y. 552 ; Alexandria & F. Ry. Co. v. Alexandria, &c. R. R. Co., 75 Va. 780; Appeal of Sharon Ry., I!i2 Penn. St. 533 ; Providence, &c. Ry. Co. v. Norwich, &c. R. R. Co., 138 Mass. 277 ; Valparaiso v. Chicago, &c. Ry. Co., 123 Ind. 467. So, if the land has been purchased, but is devoted to a public use. St Paul Un. Depot Co. v. St. Paul, 30 Minn. 359. PROTECTION TO CONTRACTS AND PROPERTY. 351 Incidental Injuries. — It is a general rule, however, that the mere fact that one suffers incidental loss in con- sequence of the undertaking and construction of a public work, where nothing to which he has a legal right is actually appropriated, can never give him a claim to com- pensation. The following are illustrations. A second toll bridge constructed under legislative authoritj' near the first may destroy its value ; but unless the owner of the first had an exclusive franchise, he has no legal ground of complaint. So a railroad may render a turnpike valueless, but when the turnpike itself is not taken, no property is taken ; there is merely a new competition in business to tlie injury of the party least competent to transact it profita- bly.' So a dam constructed under legislative authority may have its value destroyed hy the subsequent construc- tion of a canal under like authoritj' ; but where the last grant is not inconsistent with the first, so that no contract is violated, it is equally true that no property is appropri- ated.^ Loss to some one is almost a necessary incident of any exercise of governmental authority ; a tax law can- not be changed, a street opened or graded, a county-seat changed, a new town set oflT from an old, or anything else of public importance done, without injurious consequences falling upon some one. But the loss is damnum absque injuria, as it is also in the instances above recited.^ The Dam,aging of Property. — To obviate the results of the prevailing doctrine as to awarding damages for in- cidental injuries, several States have hy their constitutions provided that compensation should be awarded for prop- erty damaged or injured, as well as for that taken in the course of public improvements. The construction of these provisions has varied. Some courts have held that there 1 Kenneth's Petition, 24 N. H. 139 ; Lafayette P. R. Co. v. New Albany, &c. R. R. Co., 18 Inrl. 90. 2 Susquehanna Canal Co. o. Wright, 9 W. & S. (Penn.) 9. ' See Transportation Co. v. Chicago, 99 U. S. 63S; Green v. State, 73 Cal. 29 ; Kehrer v. Richmond, 81 Va. 745. 852 CONSTITUTIONAL LAW. must be a direct phj-sical invasion of property such as would have been the subject of an action at common law,^ while others have refused to adopt so narrow a view, and^ have held any pecuniarj' injury suffered was to be compen- sated.^ Damages have been given under these constitutions for changing the grade of streets,^ and cutting off egress thereby,* for laj-ing a railroad in the street of which the abutter does not own the fee/ and so on. The Interest appropriated. — When land is taken for a public use the fee is not in general appropriated, but an easement only is taken, and the easement consists in the right to make use of the land for the particular purpose, and for no other. When under such circumstances the use ceases, the owner is restored to his former estate. If in the mean time it becomes important to make use of the 1 Edmundson v. Pittsburgh, &c. R. R. Co., Ill Penn. St. 316; Pennsylvania R. R. Co. w. Marcliant, 119 Penn. St. 541 ; Rigney w. Chicago, 102 111. 64 ; Rude v. St. Louis, 93 Mo. 408. See Caledonia Ry. Co. c;. Walker's Trustees, L. R. 7 App. Cas. 259. 2 Reardon a. San Francisco, 66 Cal. 492 ; Gulf C, &o. Ry. Co. v. Fuller, 63 Tex. 467; Hot Springs R. R. Co. «. Williamson, 45 Ark. 429; Denver v. Bayer, 7 Col. 113. 3 Reardon v. San Francisco, 66 Cal. 492 ; Atlanta v. Green, 67 Ga. 386 ; Sheehy v. Kansas City, 94 Mo. 574 ; Hutchinson u. Parkers- burg, 25 W. Va. 226. * Rigney v. Chicago, 102 III. 64. So, if egress is rendered dan- gerous, but not cut off. Penn. S. V. R. R. Co. v. Walsh, 124 Penn. St. 544. Not if a street is rendered impassable at some distance from one's property. Rude a. St. Louis, 93 Mo. 408 ; East St. Louis w. O'Flynn, 119 111. 200. 5 Hot Springs R. R. Co. i'. Williamson, 45 Ark. 429 ; 136 U. S. 121 ; Columbus, &c. Ry. Co. b. Witherow, 82 Ala. 190 ; Denver, &c. Ry. Co. V. Bourne, 11 Col. 59 ; Gottschalk v. Chicago, &e. Ry. Co., 14 Neb. 550. But see Olney v. Wharf, 115 111. 519. If the railroad is on the other side of, and not in, the street, and the injury results from its operation and not its construction, it has been held that no damages can be recovered. Pennsylvania R. R. Co. ». Lippincott, 116 Penn. St. 472; Same v. Marchant, 119 Penn. St. 541. The con- trary is held in Omaha & N. P. Ry. Co. a. .Janecek, 46 N. W. Rep. 478 (Neb.), and Gainesville, &c. R. R. Co. v. Hall, 14 S. W. Rep. 259 (Tex.). PROTECTION TO CONTRACTS AND PROPERTY. 353 land for any other public use than that to which it was devoted by the first appropriation, and this is done, the original owner becomes entitled to a new assessment of compensation. The reasons for this are, first, that the new use may effect the right of reverter ; but, second and principally, it introduces new elements, which might have affected in an important manner the compensation origi- nally awarded had thej' then been present. It will be seen as we proceed that every inquisition of damages is made with the use in view to which the land is to be de- voted : one use may bring with it important compensations in benefits, while another maj- be specially injurious far beyond the value of the land taken, and a new use may entirely reverse these conditions. For example, if a com- mon highway is opened through agricultural lands, it will more often be beneficial to the premises than hurtful, and the award of damages to the owner will often be merely nominal. But if the highway is then converted into a canal, the injury is likely to be of a character to render the former assessment wholly inadequate. The general rule therefore is, that, when an appropriation of land is made for one purpose, the owner retains such an interest therein as entitles him , when the same land is taken for a new use, to a new estimate of his injury in view of the new conditions which the new use introduces, and of their eflfect upon his estate generally. And this right does not depend upon the question whether the fee was at first taken, or only an easement. The rule, however, can only apply where the first appropriation was of a part only of the parcel of land ; for if all was taken, the change in the use cannot concern the former owner. New Uses. — It is not a new use if a common highway is taken for a plank road or a turnpike ; the public being at liberty to avail themselves of its advantages in the same way as before, and the tolls exacted being only a substitute for the tax which must before have been levied 23 354 CONSTITUTIONAL LA"W. for repairs.* But when a highway or toll-road is taken for the purposes of a railway, the use is so different, and the probable influence upon the value of adjoining estates so different also, that it is justly held that a further prop- erty of the owner is appropriated when the change is made.'' At least, he has a right to an inquisition, to de- termine whether or not he suffers further injury. The case would be still plainer, if possible, were the highway taken for a canal.* But the case of a city street after- wards appropriated to the purposes of a horse railway is different. When land is taken for a city street, it is taken for all the purposes to which city streets are usually de- 1 Murray v. County Commissioners, 12 Met. (Mass.) 455. ' Iinlay v. Union Branch R. R. Co., 26 Conn. 249 ; Wager v. Troy, Union R. R. Co., 25 N. Y. 526; Phipps v. West. Md. R. R. Co., 66 Md. 319. In some States, however, the abutting owner is not allowed to recover damages, unless the laying of the railroad on a city street cuts off his ingress and egress. Indianapolis, B. & W. Ry. Co. v. Eberle, 110 Ind. 542; Kansas, &c. Ry. Co. a. Cuykendall, 42 Kans. 2.34 ; Iron Mt. R. R. Co. v. Bingham, 87 Tenn. 522. In Minnesota, if the construction and operation of a railroad in front of his lot, though beyond the centre line of the street, interferes with the abutter's access and the admission of light and air, he is entitled to damages. Davis V. Chicago, &c. R. R. Co., 39 Minn. 286 ; Lamm v. Chicago, &c. Ry. Co., 47 N. W. Rep. 455 (Minn.). In New York it is held tliat a steam surface road, laid under municipal authority in a city street, takes nothing from an abutter who does not own the fee of the street, provided its use is reasonable. Fobes v. Rome, &c. R. R. Co., 121 N. Y. 505. But an elevated steam railway is not a proper street use. An abutter, though not owning the lee, has an easement in the street for the passage of light and air, whether the city has or has not covenanted with him that the street shall be forever kept open. This easement is property, which cannot be taken nor inter- fered with by the construction and operation of such railway without compensation. Story v. N. Y. El. Ry. Co., 90 N. Y. 122; Lahr v. Metrop. El. R. R. Co., 104 N. Y. 268 ; Abendroth v. Manhattan El. Ry. Co., 122 N. Y. 1 ; Kane v. Metrop. El. Ry. Co., 26 N. E. Rep. 278 (N. Y.) ; New York El. R. R. Co. v. Fifth Nat. Bank, 185 U. S. 432. 3 The laying of natural gas pipes in a country road, of which the abutter owns the fee, is held a new use, in Kincaid v. Ind Nat. Gaa Co., 124 Ind. 577. PROTECTION TO CONTBACTS AND PEOPEETr. 355 voted : for sewers, and the laj-ing of water, gas, and steam pipes, as well as for passage of men and teams, and for all such improved methods of passage and carriage as may come into use, and as may not be inconsistent with the en- joj'ment of the way for other customary uses. A horse railway is such an improved method, and it is permitted for the reason that it tends to relieve the street, instead of further burdening it.^ So of street railways using elec- tricity ^ or steam ' as motive power. Similar to this, in some respects,, is the case of a rafting and booming com- pany on a natural water-course in the lumbering regions, whose operations under authority of law maj- constitute a virtual monopoly of the stream ; but they are allowed, be- cause they facilitate this peculiar navigation instead of hindering it, subject, nevertheless, to responsibility to the owners of the banks, should they cause them to be flooded or otherwise injured,* and to any persons lawfully using the stream whom they might needlessly or unreasonably ob- struct or inconvenience. The rules respecting a second assessment are applicable to cases where the land was originally dedicated to a pub- lic purpose, as well as to those of a compulsory taking. Assessment of Compensation. — It is not an uncommon provision of law, that, when land is to be taken for the public use, an attempt shall first be made to agree with the owner upon compensation, and when this fails the com- pensation may be assessed by some statutory tribunal. It is not competent for the State to decide for itself what 1 Elliott V. Fair Haven, &c. R. R. Co., 32 Conn. 579 ; People v. Kerr, 27 N. Y. 188 ; Hodges v. Bait. Pass. Ry. Co., 58 Md. 603 ; Texas & P. Ry. Co. V. Rosedale Co., 64 Tex. 80. 2 Taggart v. Newport St. Ry. Co., 19 Atl.Eep. 326 (E. I.) ; Loek- hart «. Craig St. Ry. Co., 21 Atl. Rep. 26 (Penn.) ; Halsey v. St. Ry. Co., 20 Atl. Rep. 859 (Penn.). 3 Briggs V. Lewiston, &c. Co., 79 Me. 363 ; Williams v. City Ry. Co., 41 Fed. Rep. 556. See cases ante, p. 354, note 2. * Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308 ; Weaver v- Mississippi. &c. Co., 28 Minn. 534. 356 CONSTITUTIONAL LAW. compensation shall be made, for the manifest reason that the question is one in respect to which the State and the property owner occupy antagonistic positions ; and for the State to decide it would be to make itself judge in its own cause, in violation of an inflexible principle of constitu- tional right.* The duty of the State is to provide an impartial tribunal, which can judge of the injury that will be sustained, and before which the land-owner shall be at liberty to appear and present his proofs in the customary- modes.^ The rule by which compensation shall be measured is not the same in all eases, but is largely affected by the circumstances. If what is taken is the whole of what the owner ma}' have lying together, it is clear that he is en- titled to its value, judged by such standards as the markets and the opinions of witnesses can afford, and that this, except in extraordinary cases, must be the full measure of his injury. This rule will apply in all cases where the whole of any article or thing of value is taken, and not a part only, to the injury of what remains. But when less than the whole is taken, the question of just compensation becomes a question of damages merelj' ; and in determining these the benefit to what is left may be offset against the damages, and the question to be determined will be to what extent the owner's interest in that a part of which is to be taken will be diminished thereby. If the taking is of some right in an easement, or exclusive franchise, or other intangible right, the question will also be one of damages merelj'. But in any case mere incidental injuries or benefits, like those suffered and received by the com- munity at large, — such as the greater facilitj' in travel when the taking is for a railway, or the greater danger of fright to teams when making use of the highway, — are 1 Co. Lit., § 212; Dimes v. Proprietors, &c., 3 House L. Gas. 759; Rich V. Chicago, 59 111. 286. 2 Charles River Bridge v. Warren Bridge, 11 Pet. 420, 571 ; Powers' Appeal, 29 Mich. 504 PROTECTION TO CONTKACTS AND PROPERTY. 357 to be excluded altogether from the computation.^ It may possiblj' happen that an assessment on these principles will award to the owner nothing, but he nevertheless in contem- plation of law receives compensation in the benefits which overbalance his losses.^ Payment. — It is sometimes expressly provided bylaw, that paj-ment shall precede appropriation. But where that is not the case, it is still believed to be essential in all cases where the appropriation is made for, and payment to be made bj', a private corporation, such as a railroad or toll-road company.^ But where the State takes the prop- erty for its own use,* or for the use of one of its own mu- nicipalities,' this is not essential. The reason is, that the property owner is supposed to be fully protected, in the faith and the means of the State or municipality, so that eventual payment is certain. The party may waive his right to payment in any case, either expressly or by failing to claim it within such period of limitation as may be established by law.^ 1 Whitely v. Miss., &c. Co., 38 Minn. 523; Washburn v. Milwau- kee, &c. R. R. Co., 59 Wis. .364; Somerville, &c. R. R. Co. ads. Doughty, 22 N. J. 495 ; Greenville, &c. R. R. Co. v. Partlow, 5 Rich. (S. C.) 428; Stone v. Heath, 135 Mass. 561 ; Setzler y. Penn., &c. R. R. Co., 112 Penn. St. 56. 2 White V. County Commissioners, 2 Cush. 361; Ross v. Davis, 97 Ind. 79. ' Powers M. Bears, 12 Wis. 220. See Cherokee Nation v. Sou. Kans. Ry. Co., 135 U. S. 641. * Orr V. Qulmby, 54 N. H. 590; White v. Nashville, &g. R. R. Co., 7 Heisk. (Tenn.) 518. * Commissioners v. Bowie, 34 Ala. 461 ; Talbot v. Hudson, 16 Gray (Mass.), 417 ; Commissioners v. Henry, 38 Minn. 266. » Matter of Albany St., 11 Wend. (N. Y.) 149 ; Callison v. Hedrick, 15 Grat. (Va.) 244. 358 CONSTITUTIONAL LAW. CHAPTER XVII. MUNICIPAL CORPORATIONS. Their Functions. — The place of municipal corpora- tions in the structure of American governments has been incidentally referred to in the preceding pages, and little further mention is important here. It is axiomatic that the management of purely local affairs belongs to the peo- ple concerned, not only because of being their own affairs, but because they will best understand, and be most compe- tent to manage them. The continued and permanent ex- istence of local government is, therefore, assumed in all the state constitutions, and is matter of constitutional right, even when not in terms expresslj' provided for. It would not be competent to dispense with it by statute.^ Their Creation. — Nevertheless there is no constitu- tional form or model of local government, or standard or measure of local powers ; and these need to be different according to the circumstances. A citj' of a million of inhabitants, with boulevards, parks, water-works, docks, and other public property, may need an elaborate structure of government with extensive powers, while a very simple form and few powers maj' answer the purposes of a coun- try hamlet. To determine the local needs in this regard, legislation is requisite ; and the State, therefore, will create local governments, confer upon them such powers as in its wisdom may seem expedient, and prescribe such safeguards and limitations to their exercise as shall be deemed needful or prudent. The powers thus conferred the State ma}' in- crease at discretion, so long as they are limited to govern- mental matters of purely local concern ; but the State may also diminish them at discretion, and may at any time 1 People V. Hurlbut, 24 Mich. 44; People v. Lynch, 51 Cal. 15. MUNICIPAL CORPORATIONS. 859 abolish any particular local government and substitute another in its place. In other words, while the local com- munity is entitled to local government, it cannot claim, as against the State, any particular charter or form of local government.'' The creation of municipal governments within the States belongs exclusively to the States. Congress may create them in the District of Columbia and the Territories. Within the Territories, however, it is customary to leave the authority with the territorial legislature. Duplicate Nature of Municipalities. — Municipal cor- porations are sometimes spoken of as having a duplicate nature, and thej' certainly possess and exercise two classes of powers ; the one of which pertains to them in what may be called their private capacity, and does not differ in nature from the powers exercised by other corporations, while the other pertains to their public capacity, and is purely governmental. In the one capacity the municipal corporation may acquire property for its own purposes and the benefit of its people ; and it has a constitutional right to be protected in this, as any individual or private corpo- ration has.^ It may also make contracts within the limits of the powers the State has conferred, and it is entitled to exercise its own proper judgment and discretion in making such contracts, and cannot be forced by the State to con- tract debts against its will.^ But in its public capacity the municipal corporation is merely an agent in govern- ment, and the State will employ it as seems best, and mould and control its powers with a view to the utmost 1 Dartmouth College v. Woodward, 4 Wheat. 518 ; Barnes v. Dis- trict of Columbia, 91 U. S. 540 ; Laramie Co. v. Albany Co., 92 U. S. 307. See, as to the full control of the State over municipalities, Co- manche Co. V. Lewis, 133 U. S. 198. ^ Terrett v. Taylor, 9 Cranch, 43 ; Pawlet v. Clark, 9 Cranch, 292 ; State V. Haben, 22 Wis. 660. 8 Hasbrouck v. Milwaukee, 13 Wis. 37 ; Pope v. Phifer, 3 Heisk. (Tenn.) 682; Howell v. Bristol, 8 Bush (Ky.), 493; Washington Avenue, 69 Penn. St. 352. 360 CONSTITUTIONAL LAW. usefulness. To a large extent state duties are apportioned for performance between the local governments, and they are required to perform them within their limits, and to levy taxes for the purpose if necessary-. Illustrations of state duties thus apportioned are those of maintaining local courts, and the local police force, and of making and keeping in repair the highway's.* If the localities fail in these particulars, the State may coerce them ; but it is inconsistent with local institutions, as they have always existed in this country, that the local community should be coerced by the State in matters of purely local con- venience, or that the State should appoint officers to take charge of local affairs. Ziegislative Powers. — Within their -proper sphere the municipalities have legislative powers, and may make by- laws and ordinances which have the force of local law. These powers they exercise under the same rules which govern state legislative authorit}'. They cannot delegate them to individuals for exercise ; they must employ them in conformity to the charter of local government ; they are subject to all the restrictions which the federal Constitution imposes on the States, — such as that ex post facto laws and laws impairing the obligation of contracts shall not be passed ; and they must restrain their action within the municipal limits. The State itself cannot so far enlarge municipal powers as to enable the local officers to burden their people with taxes for objects not of local interest.'' Nor can the people of a certain district in a countj' be empowered to determine whether any person in the State shall take oysters with a dredge within the public waters of the county.* ■ 1 See People v. Draper, 15 N. Y. 532 ; Baltimore v. State, 15 Md. 476 ; In re Pennsylvania Hall, 5 Penn. St. 204; People v. Detroit, 28 Mich. 228. 2 Wells V. "Weston, 22 Mo. 385 ; Livingston County v. Welder, 64 111. 427 ; Mills o. Charlton, 29 Wis. 413. 8 Bradshavr v. Lankford, 21 Atl. Rep. 66 (Md.). INDEX. ACCUSED PARTIES. (See Bail; Crimes; Habeas Corpus.) ACTIONS, for divorce, 187. penal, 188. local aud transitory, 188. rights in, are property, 339, 340. ADMIRALTY JURISDICTION, of federal courts, 117-120, 125. ADMISSION OF STATES, how brought about, 175-183. ALIEN AND SEDITION LAWS, provisions of, 97, 98. ALIENS, how made citizens, 79, 253-255. may be given special privileges, 80. AMBASSADORS, jurisdiction of cases affecting, 116, 117. AMENDMENTS, to federal Constitution, 86, 207-212. discussion of provisions of first ten, 213-216, 248-251, 278- 293, 301-310, 327 el seq., 344 et seq. . of thirteenth, 226-229. of fourteenth, 229-248, 251-259. of fifteenth, 273-278. to State constitutions, 208-205. 362 i^DEX. APPELLATE JURISDICTION, of federal courts, 114, 137. APPOINTMENT, to fill senatorial vacancy, 44, 45. to offices by the President, 108. APPORTIONMENT, of representatives, 44. of taxes, 346. APPROPRIATIONS, no money to be drawn but in pursuance of, 109. APPROVAL OF LAWS. by the President, 49, 108, 166-169. ARBITRARY ARRESTS, forbidden, 218-222. relief from, 138-136, 299-301. ARBITRARY EXACTIONS, on pretence of taxation, 339. ARMS, right to keep and bear, 281-283. ARMY, Congress may raise and support, 90. commander-in-chief, 103. standing, 282. ARREST, privilege of Congressmen from, 47, 48. without warrant, 221. unlawful, 218-222. relief from, 133-136, 299-301. ART, WORKS OF, copyright of, 86, 87. ARTICLES OF CONFEDERATION. (See Confederation, Articles of.) ASSEMBLY, right of, 278-281. ATTAINDER, bills of, forbidden, 294-296. in cases of treason, 94. AUTHOR, exclusive rights of, 86, 87. INDEX. 363 B. BAIL, right of accused parties to give, 302. BALLOT, voting by, 45, 263-266. BANKRUPTCY, power over, 80, 81, 825, 326. exemptions in cases of, 80, 81. BEARING ARMS, right of, 281-288. BETTERMENT LAWS, right to pass, 343. BILL OF RIGHTS, of 1 William and Mary, 7. none in the Constitution, 17. supplied by amendments, 17, 18. BILLS, LEGISLATIVE, introduction of, 48. BILLS OF ATTAINDER, prohibition of, 294-296. BILLS OF CREDIT, States not to emit, 84. what are, 84. BLASPHEMY, may be punished, 215. in publications, 286. BOOKS, copyright of, 86, 87. criticism of, 291. BORROWING MONEY, power of, in Congress, 62. BOUNTIES, offer of, may be recalled, 314. BRIDGES, State power to authorize, 7& 364 INDEX. c. CHARTERS, when contracts, 319. regulation of rights under, 321-324. CHECKS AND BALANCES, in government, what are, 148-169. CHRISTIANITY, recognition of, in the law, 213-216. CHURCH AND STATE, union of, forbidden, 213. CITIZENS, who are, 79, 124, 125, 196. aliens, how made, 79, 254, 255. of different States, may sue in federal courts. 111, 124. of States, privileges and immunities of, 195-197. of the United States, privileges and immunities of, 256-258. CITIZENSHIP, of colored persons, 253. how acquired, 253-255. how lost, 255. in State and nation, 255. CIVIL LIBERTY, meaning of, 235. CIVIL RIGHTS, religious liberty, 213-216. security of dwelling, person, and papers, 217-222. freedom guaranteed, 222-229. guaranties of life, liberty, and equality, 229-248. right to jury trial in civil cases, 248-251. CLASS LEGISLATION, not admissible, 235, 238. COINING MONEYS, power over, 81. , what it consists in, 82, 83 COLONIES, AMERICAN, legislation for, 4-6. imperial taxation of, 5, 6, ., CiMCinnati Law School. 5 THE STUDENTS' SERIES. It ought unquestionably to be made the basis of a course of instruction in all our higher schools and colleges. — Hon. John F. Dillon, Frofessor of Columbia Law School, New York. It is a work of great value, not only for students in institutions of learning, but as well for the lawyer, to whom it supplies at once a treatise and a digest of constitutional law. — Hbnet Hitchcock, late Dean of St. Louis Law School. Clearly and compactly written, and the general arrangement well adapted for students* use. — Hon. Simeon E. Baldwin, Law Department of Yale College. I have examined it with great care, comparing it carefully with the old edition, and testing it in various points. As a result, it gives me pleasure to state that we shall use the hook both in the courses in constitutional history and law in the col- legiate department, and in one of the classes in the law school. The work of the editor of the new edition, Mr. Angell, has been done with the exactness and care which an intimate acquaintance with him as a classmate at the University of Michi- gan led me to expect in whatever he undertook. Judge Cooley is fortunate in hav- ing so excellent an editor for the revision. — Letter from George W. Knight, Professor of Liternational and Constitutional Law, Ohio State University. Tour name alone as its author is a sufficient guarantee of its high character and general usefulness, not only for the use of the students of law schools and other institutions of learning, for which it was originally prepared, but also for members of the bar. The matters discussed are stated so concisely and clearly as to be of great benefit for ready reference. The edition sent me seems to have all the late cases cited and referred to ; and Mr. Angell seems to have been very careful and successful in making the changes from the first edition and adding additional notes. — Hon. Albbbt H. Hoeton, CAie/ Justice of the Supreme Court of Ka-nsas, to Judge Cooley. CURTIS ON united STATES COURTS. Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the United States. By Benjamin R. Cuetis, LL.D., late Associate Justice of the Supreme Court of the United States. Edited by Geokge Ticknou Curtis and Benjamin R. Cubtis. Second edition, by H. C. Merwin, Law Department of Boston University. 12mo. Cloth, |2.50 net; law sheep, $3.00 net. These lectures were delivered by the late Judge Curtis to a class of stu- dents in the Harvard Law School, in the academic rear 1872-73, and were edited and prepared for the press by his son and brother, both lawyers of prominence. Mr. Merwin has devoted much time to the consideration of the recent changes and developments in the practice of the Federal Courts; and his additions, in the second edition, are thought by those who have examined them to deserve the words of commendation bestowed upon Judge Curtis's original text. A work of the highest standard on the subject treated. — Boston Post. Cannot fail to be of great service to the student in tlie prosecution of his legal studies. — Chicago Legal News. It is by far the best epitome of that extensive subject ; and the clearness of the style and orderly arrangement of the learned author will especially recommend it to students. — Hon. Edmund H. Bennett, Dean of School of Law, Boston University. There is not to-day in existence so admirable a treatise on United States courts and their iurisdiction as thi^ little book. — Milwaukee Republican. 6 THE STUDENTS' SERIES. EWELL'S MEDICAL JURISPRUDENCE. A Manual of Medical Jurisprudeuce for the Use of Students at Law and of Medicine. By Marshall D. Ewell, M D., LL.D., of the Union College of Law, Chicago. 12mo. Cloth, |2.50 net; law- sheep, $3.00 net. Mr. Ewell has endeavored to produce a work which, within a moderate compass, states all the leading facts and principles of the science concisely and yet clearly. In it will be found the substance of all the principles stated in the more voluminous and eapensive worlcs. It is excellently done. I wish it might be read by every student of law as well as by every student of medicine. — Prof. Henkt Wade Kogebs, when at University of Michigan. I can safely say that for use as a text-book, either in a medical college or law school, it is preferable to any book of my acquaintance. In his chapter on Mal- practice, Professor Ewell has succeeded, within the compass of eighteen pages, in setting forth the general doctrine of the law so comprehensively as to make it highly useful for the practitioner as well as the student. — Henrt H. Inoeesoll, Dean Law Department, University of Tennessee. HARRIMAN OH CONTRACTS. Elements of the Law of Contracts. By Edward Avery Haekiman, Professor of Law in the Northwestern University Law School. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. The justification of this book is . . . that it is an attempt to explain the rules of positive contract law in accordance with the actual historical development of those rules, and to classify and arrange those rules as far as possible in a scientific manner. ... As regards legal theory, the most dis tinctive features of this book may be briefly stated : — First. The recognition of the fact that contractual obligation may be due to the act of one party or of two. Second. The careful separation of the facts which are essential to the formation of contracts from those which merely affect the validity of con- tracts when formed. Third. Voidable contracts are treated under the one head of " Rescission." Fourth. Rules of offer and acceptance have been reduced to rules of consideration as far as possible. Fifth. Under the head of " Con.itruction of Contracts" certain sub- jects like Impossibility have been treated, which are usuall.v considered under other heads. Sixth. The difficult subject of Conditions has been especially carefully considered. Seventh. An account of the nature and results of the judicial legisla- tion by which, in many States, a stranger to a contract is permitted to sue npon it. The cases cited and referred to have been selected with the greatest care, as best illustrating and explaining tlie rules and doctrines of the law of con- tracts. References are made to the official Reports; and where the cases 7 THE STUDENTS' SERIES. have been reprinted in the collections of cases on contracts, those volumes are indicated. A most admirable Bummary of the subject. — B. J. Bamage, Dean Law Depart- mcTitf University of the South. A superior and original work, — William Tbickbtt, Dean Dickmson School of Law, It is certainly a departure from the usual method of dealing with the subject, and I am inulined to think a departure in the direction of a clearer and better understanding of the law. — C. P. Norton, Buffalo Law School. Such examination as I have been able to make of the book leads me to think that it is a logical and accurate statement of the leading principles of the subject, such as a law student might profitably use. — EMT.m McClain, Chancellor Law Depart- ment, State University of Iowa. HEARD ON CIVIL PLEADING. The Principles of Pleading in Civil Actions. By Franklin Fiske Heard. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. Under whatever system of statutory procedure a law student may design to practise, he will find it equally necessary to becom.e familiar with the principles of common law pleading. Mr. Heard's work is a plain and clear guide to these. — ' Hon. Simeon E. Baldwin, Law Department of Yale College. HEARD ON CRIMINAL PLEADING. The Principles of Criminal Pleading. By Franki/IN Fiske Heard. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. It deserves an important position among the text-books in every law school in the country. — William C. Robinson, Dean Law Department, Catholic University of America, HUTFCUT ON AGENCY. Elements of the la-w of Agency as relating to Contract. By Ernest W. HuFFCUT, Professor of Law in Cornell University School of Law. 12mo. Cloth, $2.50 net; law sheep, $.S.OO net. Law schools and law offices obtain in this book what has long been needed, — a book on Agency written clearly and concisely by a man whose own experience with his classes has taught him what were the funda- mental principles of the law, and how best to arrange and present those principles. The citation of authorities for the purpose of illustrating the rules of law is very full and from varied sources. It is not intended as a special digest of the subject, but all the points of law are amply supported by the best authorities. ■We commend the book to the careful consideration of our law teachers, and advise its use by all students. — Green Sag. I am particularly impressed by the clear and Bcientiflc arrangement. — Georgb E. Beers, Lato Department, Yale OhiversUy. Perhaps the most striking characteristic of the book is the painstaking and accu- late analysis which the subject has received. ... It is logical in its arrangement, 8 THE STUDENTS' SERIES. accurate in its statement of the law, and discriminating in its citations of authori- ties. — American Law Register and Review. The work is a very good one indeed. — Chables M. Slack, Dean Hastings CoU lege of Law. 1 have examined with some care Professor Hu£fcut*s treatise on Agency, and am much pleased with it as a text-book for the use of students. — Prof. R. S. Gould, Jjww Department, University of Texas. To accompany " Huffcut on Agency": — Cases on the Law of Agency. By Eknest W. Huffcut. Crown 8vo. Cloth, f 3 00 net. MAY ON CRIMmAL LAW. The Law of Crimes. By J. Wilder May, Chief Justice of the Muni- cipal Court of the City of Boston. Second edition, edited by Joseph Hekrt Bealb, Jr., Assistant Professor of Law in Harvard Univer- sity. 12rao. Cloth, $2.50 net; law sheep, ^3.00 net. This new edition of Judge May's deservedly popular work contains large additions. The editor states hi the preface that the original plan included no discussion of the subjects of Criminal Pleading and Practice ; but it was found that It would be better adapted to the use of students if these subjects were briefly considered, and this has accordingly been done. Much has also been added to the first chapter, which contains the general principles under- Ij'ing the criminal law. It is to be especially commended for its clear and concise definitions, as also for its citations of leading cases directly upon the matter under discussion. — JSVom J. H. Caepehtbe, Law Faculty, University of Wisconsim. It is not a mere synopsis, but an interesting discussion, quite full enough to give the student a true view of the subject, and minute enough to be a useful handbook to the practitioner. — New York Law Journal. To accompariy "May's Criminal Law" : — Cases on Criminal law. By H. W. Chaplin. New edition, enlarged. Crown 8vo. Cloth, 83.00 net. ROBINSON'S ELEMENTARY LAW. Elementary Law. By William C. Robinson, LL.D., Professor of Elementary Law in Yale College. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. Contains a statement of the principles, rules, and definitions of American Common Law, both civil and criminal, arranged in logical order, with refer- ences to treatises in which such definitions, rules, and principles are more extensively discusfsed. ^ n, „v This work is intended to serve three purposes : First, to form a text-book for the use of students in law schools, and of others who are under com- petent instruction ; second, to guide private students m their investigation THE STUDENTS' SERIES. of the rules and definitions of law; third, to render students familiar with some of the leading treatises upon the principal topics of the law. The book is convenient to the instructor who wiU use it as a text to be amplified in his lectures, and valuable to the student who wiU consult the references. - Prof. M. F. FoKOE, IiL.D., Cincinnati Law School. ROBINSON'S FORENSIC ORATORY. Forensic Oratory: A Manual for Advocates. By William C. Robinson, LL.D., author of "The Law of Patents for Useful Inventions," "Elementary Law," etc. 12mo. Cloth, $2.50 net; law sheep, |3.00 net. A new and suggestive work on the duties and functions of the advocate. The chapters on the Presentation of Ideas by the Production of Evidence in Court, the Qualification and Training of Witnesses, and on Direct, Cross, and Re-Direct Examination, commend the book especially to the bar as well as to students. The trained lawyer as well as the student will find much that is helpful and suggestive in the pages of this volume, especially on the subject of cross examination. It is the result of a long experience and a constant study of the trial of causes. This is a book which no student of law can afford to pass by vrithout a thorough study of it. It is also a work which no practising lawyer who undertakes the trial of causes, and is not already an acknowledged leader in the courts, can afford not to read and read again, — American Law Review. It touches upon vital points, just such as students of oratory, especially those who are entering upon the practice of law, need to have urged upon them in this forcible way. — Thomas C. Teueblood, Professor of Elocution and Oratory, Depart- ment of Law, Michigan University. SEDGWICK'S ELEMENTS OF DAMAGES. Elements of Damages : A Handbook for the Use of Students and Practitioners. By Arthur G. Sedgw^ick. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. This book is not an abridgment of the work embodied by the author in his edition of the well-known three-volume treatise on the Measure of Dam- ages, by Theodore Sedgwick. The entire Jleld has been re-examined, and the whole taw of Damages reviewed'. Its principles are stated in the form of rules or propositions of law such as a court might lay down to a jury, and these propositions are illustrated by the cases from which they have been drawn. Wherever local variations from these rules exist, such local differences are stated, and their causes, so far as possible, explained. As a students' book it is very admirable. Probably no one but the author can see how it could be made better than it is. — American Law Review. I can cheerfully recommend the book as an excellent presentation of the elements of the subject. — 'Smlin McClain, Chancellor Law Department, State University of Iowa. 10 THE STUDENTS' SERIES. Throughout the volume the references to, as well as the illustrations of, under- lying principles are judicious. It is decidedly a meritorious work. — Prof. Chables M. Campbell, Law Department j University of Colorado. To accompany the foregoing work : — Cases on the Law of Damages. By Joseph H. Beale, Jr., of the Harvard Lavyr School. Crown 8vo. Cloth, $3.00 net. STEPHEN'S DIGEST OF EVIDENCE. A. Digest of the Law of Evidence. By Sir James Fitz-Jamks Stephen. From the fourth English edition. With Notes and Additional Illustrations to the present time, chiefly from American Cases, including those of John Wilder May, late Chief Justice of the Municipal Court of the City of Boston, author of " The Law of Insurance," etc. 12mo. Cloth, $2.50 nei; law sheep, $3.00 ne«. A full reprint of the fourth English edition, revised by the author, with references to American cases. Short as it is, we believe it will be found to contain practically the whole law of the subject. STIMSON'S LAW GLOSSARY. Glossary 'of Technical Terms, Phrases, and Maxims of the Common Law. By Frederick Jesdp Stimson. 12mo. Cloth, $2.50 ncf; law sheep, $3.00 net. This book is a concise Law Dictionary, giving in common English an explanation of the words and phrases, English as well as Saxcn, Latin, or French, which are of common technical use in the law. The popular and usual acceptation of each phrase is given in much fhe same general shape as it stands in the mind of the trained lawyer. A very convenient little work, especially useful to students of the law — Chicago Legal News. WAMBAUGH'S STUDY OF CASES. The Stndy of Gases : A Course of Instruction in Beading and Stating Beported Gases, Composing Head-Notes and Briefs, Criticising and Comparing Authorities, and Compiling Digests. By Eugene Wameaugh, Professor in the Law Department of Harvard Univer- sity. Second edition. 12mo. Cloth, $2.50 net ; law sheep, $3.00 net. The purpose of the work as expressed by its author is "to teach the methods by which lawyers detect dicta, and determine the weight of reported cases." The full discussion of this introduces many important and interest- ing topics, such as the following: How to write a Head-Note, How to criti- cise Cases, Combining and Preparing Cases, The Growth of Legal Doctrine, n THE STUDENTS' SERIES. The Importance of the Unwritten Law, The Respect for Authority, The ^'reparation of Briefs, How to compose a Digest, etc. A subjecfc of the greatest importance to legal practitioners, and one which, strange to say, has never before engaged the attention of any of our legal writers. We know of no work of greater importance to the student. It should be adopted as a text-book by every law school in the country. — The Green Bag. We commend this book, not merely to students of the law, but to practising lawyers, and even to judges on the bench. It incidentally teaches how to write a decision, as well as how to find out the doctrine of a decision after it is written. — The American Law Review. Will be foimd to be of great value to the student or young lawyer when studying by himself, and if carefully studied, cannot fail to give him ideas which he could get elsewhere only by long experience, and from hints found scattered through many volumes. — Prof. O. W. Aldeich, of the Ohio State University, Altogether unique in the way of legal literature. There are very many lawyers old in the practice who will regret that they were not afforded in their student days such discipline as is suggested by this book ; and there is no lawyer who cannot read with profit its first eight chapters. — The Chicago Law Journal. Among the most valuable publications for the use of students which have appeared in recent years. The work abounds in fertile suggestions. — The Ameru can Law Register and Review. It is a valuable addition to the Law Students' Series, — E. H. Bennett, Dean School of Law, Boston University. By the same author , to accompany " The Study of Cases " .• — Cases for Analysis. By Eugene Wambaugh, Professor in the Law Department of Harvard University. Crown 8vo. Cloth, $3.00 net. HOWE ON THE CIVIL LAW. studies in the Civil Law and its Relations to the Law of England and America. By William Wirt Howe, late Justice of the Su- preme Court of Louisiana. 12ino. Cloth, $2.50 net; law sheep, $3.00 net. LITTLE, BROWN, AND COMPANY. PUBLISHERS, 254 Washington Street, BOSTON. 12