Qlnrnpll Ham Bc\^aa\ Sltbtaty 
 
Cornell University Library 
 KF 8840.B32 
 
 V.I 
 
 Federal procedure at law :a treatise on 
 
 3 1924 020 178 723 
 

 Cornell University 
 Library 
 
 The original of this bool< 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/cu31924020178723 
 
FEDERAL 
 PROCEDURE AT LAW 
 
 A TREATISE ON THE PHOCKDUEE IN 
 
 SUITS AT COMMON LAW 
 
 GIRCUIT COURTS OF THE UNITED STATES 
 
 ACCOMPANIED WITH, AS A 
 BASIS OF FEDERAL JUDICIAL PEOCEDUEE, 
 A STATEMENT OP THE DUAL S'XSTEM OP GOVEENMENT 
 CEEATED BY THE PEDEEAL CONSTITUTION AND THE CONSTITUTIONAL 
 LIMITATIONS IMPOSED UPON THE STATE AND FEDERAL GOV- 
 ERNMENTS AND THE CREATION OF THE PEDEEAL 
 JUDICIAL SYSTEM AND THE JUEISDICTION 
 OF ALL THE PEDEEAL COUETS 
 
 By C.L. bates 
 
 Of thb Bab of San Antonio, Texas 
 (authob of bates' fedebal equity fbooedubb) 
 
 In Two Volumes 
 
 VOXiXTlIE I 
 
 CHICAGO 
 
 T. H. FLOOD AND COMPANY 
 
 1908 
 
COPYKIGHT, 1908, 
 BT 
 
 C. L. BATES. 
 
 /.' 
 
 STATE JOURNAL PRINTINa COMPANY, 
 
 Pbihtbbs and Stekkotypebs, 
 
 uadison, "wis. 
 
To the Honorable 
 
 ALBERT H. WHITFIELD, 
 
 Chief Justice of t^ie Supreme' Court of the State of Mississippi, 
 a jurist of broad and profound learning, an orator of matchless 
 eloquence, a patriot, pure and simple, a votary of constitutional 
 government, and a Christian gentleman of scholarly attainments, 
 this work is respectfully dedicated, as a tribute of respect, at- 
 tachment and esteem. 
 
PREFACE. 
 
 The purpose of this work is to state the principles controlling 
 the judicial procedure in suits at common law, in the circuit 
 courts of the United States. There are inherent difficulties in 
 the subject, resulting from the complex basis of that procedure, 
 there being four distinct sources from which its rules and prin- 
 ciples are derived, namely, (1) the federal constitution, (2) the 
 English common law, (3) the federal statutes, and (4) the state 
 procedure. The act of conformity adopts the state i)rocedure 
 only "as near as may be" — consistently with the federal con- 
 stitution and valid laws of the United States. 
 
 The great outlines of federal procedure are laid in the consti- 
 tution, and cannot be overridden by acts of congress adopting 
 state procedure. Among the rights secured by those constitu- 
 tional provisions is the right to a trial, in suits at common law, 
 by a jury, as that right existed at common law. The federal 
 government is the only government on this continent preserving 
 that right in its full integrity. The states are, iu many insidious 
 ways, breaking away from this great guaranty of life, liberty 
 and property — this great fundamental principle of Anglo-Saxon 
 civilization. The jurisdiction, both original and appellate, of 
 the several courts of the federal judicial system, and the nature 
 and character of the judicial remedies and procedure established 
 and pursued in them, arise out of and are limited by the nature 
 of the dual system of government created by the federal consti- 
 
VI PREFACE. 
 
 tution, the relations existing between the federal and state gov- 
 ernments, the constitutional powers of each, respectively, and 
 the limitations imposed upon each of them by the fundamental 
 law, and, therefore, a comprehensive knowledge of the entire 
 scheme of government is absolutely essential to an accurate 
 knowledge and full comprehension of federal jurisdiction and 
 procedure in all their branches and details; and, for this reason, 
 the author has, as a basis of the discussion of Federal Procedure 
 at Law, assayed a statement of the Dual System of Government 
 established by the constitution, the constitutional limitations 
 of the state and federal governments, the judicial power of the 
 federal government, the creation of the federal judiciary, the 
 jurisdiction of all the courts of the system, and the distinction 
 between law, equity and admiralty, and the remedies appropri- 
 ate to each, as maintained in the federal courts. An effort has 
 been made to define suits at common law, and to point out and 
 particularly specify the particulars in which the federal courts 
 will, and in which they will not, conform to state procedure in 
 suits at common law. 
 
 The work has been written in the hope that it may supply an 
 additional aid to the working lawyer and also to the earnest stu- 
 dent of American institutions, and is respectfully submitted to 
 the kindly judgment of the American bench and bar. 
 
 C. L. BATES. 
 
 Swn Antonio, Texas, June 1, 1908. 
 
TABLE OF CONTENTS. 
 
 VOLUME I. 
 
 CHAPTER I.i 
 
 THE CONSTITUTIONAL, BASIS OF PROCBDURB IN THE COURTS 
 OF THE UNITED STATES. 
 
 § 1. Three branches of the law, 1 
 
 2. -No definite line between procedure and substantive law, . . 2 
 
 3. Same — Illustration — ^Remedy on contract, 2 
 
 4. Same — Illustration — Procedure for protection of life and 
 
 personal liberty, 2 
 
 5. Importance of the law of procedure 2 
 
 6. ^me — Judicial murders in England, 3 
 
 7. Same — Same — Statement of Hallam 3 
 
 8. Struggle in England for just procedure, 4 
 
 9. Same — In American colonies, , 4 
 
 ;10. Federal, procedure established by constitutional provision, 5 
 
 11. Same, 6 
 
 12. The study of federal procedure should begin with the con- 
 
 stitution, 6 
 
 13. Same — Intimate relation between criminal and civil pro- 
 
 cedure 6 
 
 ■i 14. Same — Further necessity for the examination of the con- 
 stitution in the study of federal procedure 7 
 
 15. Same — ^A general view of the government requisite, 8 
 
 CHAPTER II. 
 "THE DUAL SYSTEM OF GOVERNMENT IN THE UNITED STATES. 
 
 16. By revolution the thirteen colonies became sovereign states, 10 
 
 17. Two governments in each state — ^Relationsi between them — 
 
 Each supreme in its sphere, 11 
 
 18. Sovereignty of the state restricted by the federal constitu- 
 
 tion, 12 
 
 19. Two judicial systems in each state 13 
 
 .20. The federal government does not possess all the attributes 
 
 of sovereignty, 13 
 
Vlll TABLE OP CONTENTS. 
 
 I 21. The government of the United States is national in its char- 
 acter 14 
 
 22. General statement of the powers of the government 14 
 
 23. Implied powers of the federal government, 15- 
 
 24. Same — ^Meaning of implication, 16 
 
 25. Same — Power of congress not left to general reasoning, .... 16 
 
 26. An implied power deduced from a group of specified pow- 
 
 ers 16 
 
 27. The powers of government classified according to their dis- 
 
 tribution by the constitution, IT 
 
 28. Same — What powers may he exercised by the states, 17 
 
 29. The commercial power — ^Reasons for vesting it in the na- 
 
 tional government 18; 
 
 30. The power to regulate commerce is vested in the legislative 
 
 branch of the government, 19' 
 
 31. The commercial power and the taxing power are distinct, . . 19 
 
 32. Limitations upon the commercial power of congress, 19' 
 
 33. Constitutional provisions correlated to the commerce clause, 20 
 
 34. Commerce within the meaning of the constitution is a unit, 21. 
 
 35. The commercial power of congress does not extend to statei 
 
 commerce 22 
 
 36. Commerce defined 23. 
 
 37. When the commercial power of congress is exclusive, and 
 
 when paramount only, 23 
 
 38. Failure of congress to act in regard to any commercial sub- 
 
 ject of a national nature is a declaration that as to such 
 matter commerce shall remain free, 24 
 
 39. Powers expressly prohibited to the states, 24 
 
 40. The reserved powers of the states 25- 
 
 41. Sovereignty of the states over their navigable waters and 
 
 the soils beneath them 26^ 
 
 42. Same— Tide Waters— The Great Lakes 26 
 
 43. Same — Mississippi River 27 
 
 44. Riparian rights determined by state laws, 27 
 
 45. Riparian rights subordinate to the commercial power of 
 
 congress 28' 
 
 46. Authority to maintain bridge across navigable stream, .... 29 
 
 47. Same — Federal statute requiring assent of the federal gov- 
 
 ernment 30' 
 
 48. Power of the states to improve their harbors, bays and navi- 
 
 gable rivers, jSl 
 
 49. Same — Federal statute requiring assent of the federal gov- 
 
 ernment 31. 
 
 50. Distinction between municipal sovereignty and national 
 
 sovereignty, ; 31. 
 
 51. Admiralty jurisdiction of the United States over the public 
 
 navigable lakes and rivers of the states, 32 
 
 52. State pilotage laws — Administered in federal courts 33. 
 
TABLE OP CONTENTS. IX 
 
 S 53. Cionstitutional power of the states to levy duties on imports 
 
 and exports for executing their inspection laws 33 
 
 54. The subject-matter of inspection laws — Do not operate upon 
 
 persons, 34 
 
 55. What articles are subject to state Inspection laws, 34 
 
 !56. The object of state inspection laws, 34 
 
 57. The methods and means of executing inspection 35 
 
 ■58. Distinction between the power to enact Inspection laws and 
 
 the power to levy duty for their executioi\ 36 
 
 59. Commercial classification of the subjects of inspection laws, 36 
 
 60. Inspection laws act on articles of commerce in the exercise 
 
 of the police powers of the state, 36 
 
 61. Same — Harmony with the commercial power 38 
 
 62. Quarantine laws enacted by the states 41 
 
 63. State action incidentally affecting foreign and interstate 
 
 commerce, 41, 
 
 CHAPTER III. 
 
 THE BASES AND SOURCES OP THE LAW AND JURISPRtJDENCB 
 
 ADMINISTERED IN THE CIRCUIT COURTS OF THE 
 
 UNITED STATES. 
 
 64. Two systems of law administered in; the circuit courts of the 
 
 United States, 43 
 
 65. Federal and state laws form one composite system of juris- 
 
 prudence for the state 45 
 
 66. The supreme law of the land, 46 
 
 67. Same — Treaties; their nature^— New principal introduced by 
 
 the constitution, 47 
 
 68. The United States government vested with power to execute 
 
 the federal laws on every foot of American soil 47 
 
 69. Power of federal judiciary to declare state law void, 48 
 
 CHAPTER IV. I 
 
 THE ADMINISTRATION OF STATE LAWS BY THE FEDERAL 
 
 JUDICIARY. 
 
 70. The great body of municipal law derived from state author- 
 
 ity, 50 
 
 71. Legislative recognition of state laws by act of congress, ... 52 
 
 72. The construction of the thirty-fourth section of the judiciary 
 
 act not uniform, 52 
 
 73. Independent and co-ordinate jurisdiction of the federal 
 
 courts in the administration of state laws 53 
 
 74. Only the strictly local laws of the state are binding on the 
 
 federal courts, 54 
 
X TABLE OF CONTENTS. 
 
 § 75. When United States supreme court follows state decisions 
 
 construing state constitutions and statutes — General rule, 54 
 
 76. Construction of state constitutions and statutes when fed- 
 
 eral question involved — Impairing obligation of contracts, 55 
 
 77. State deeisions on enactment of state laws and their har- 
 
 mony with state constitution, 55 
 
 78. Construction of state statutes providing for the levy and 
 
 collection of taxes 56 
 
 79. State deeisions not allowed to impair the obligation of con- 
 
 tracts, J. 56 
 
 80. State decisions establishing rules of property, 57 
 
 81. Statutes of limitations 58 
 
 82. Statutes of frauds 58 
 
 83. Same — Fraudulent conveyances 59 
 
 84. Recording acts of the states 59 
 
 85. Decisions as to whether a corporation has been created, ... 59 
 
 86. Principles of general law — Responsibility of railroad com- 
 
 pany to employe, 59 
 
 87. General commercial law, 60 
 
 88. Same — Insurance policies 61 
 
 89. When private rights determined by common law 61 
 
 90. Constitutionality of state statute authorizing issue of bonds 
 
 in aid of railway construction, 61 
 
 91. When federal courts will change their decisions to conform 
 
 to state decisions 62 
 
 92. When federal courts will not change their decisions to con- 
 
 form to state decisions, 63 
 
 93. Federal administration of state laws in cases where a fed- 
 
 eral question Is involved 63 
 
 CHAPTER V. 
 
 CONSTITUTIONAL LIMITATIONS IMPOSED UPON THE FEDERAL 
 GOVERNMENT AFFECTING JUDICIAL PROCEDURE. 
 
 94. Great and important limitations imposed by the constitution 
 
 on the federal judiciary, 67 
 
 95. The federal constitution must be construed in the light of 
 
 the history and principles of the English common law, . . 68 
 
 96. The federal constitution construed in the light of contempo- 
 
 raneous history 69 
 
 97. Same — Contemporaneous exposition 69 
 
 98. Construction of constitutional amendments 7fl 
 
 99. The first ten amendments are limitations on the federal gov- 
 
 ernment 70 
 
 100. Same — Effect of the fourteenth amendment 71 
 
 101. Treason defined, the quantity of evidence requisite for con- 
 
 viction prescribed and the penalty limited by the consti- 
 tution, 71 
 
TABLE OF CONTENTS. XI 
 
 102. Same — Statutory definition — Punishment of treason 72 
 
 103. Bills of attainder prohibited— Defined 72 
 
 104. Same — Defined by United States supreme court, 74 
 
 105. Limitations upon the power of the government in prosecu- 
 
 tions by impeachment, 74: 
 
 106. Same — History and character of the procedure in England — 
 
 The commons the grand inquest of the realm, 75i 
 
 107. Same — Same — Objects and purposes of parliamentary im- 
 
 peachments in England — ^Ministerial responsibility, 78 
 
 108. Same— Objects and purposes of impeachments under the 
 
 federal constitution, 79 
 
 109. Same' — Restraint upon pardoning power of the president, . . 79 
 
 110. Same — Right of trial by common-law jury, 80 
 
 111. Due process of law — Maxims of the English constitution and 
 
 the common law, 81 
 
 112. Same — Means and methods by which these guaranties were 
 
 violated, 81 
 
 113. Due process of law secured by constitutional limitation upon 
 
 both federal and state governments 82 
 
 114. The constitutional provision securing due process of law as 
 
 against the action of the federal government 83 
 
 115. Same — The Inhibition is a restraint on all the departments 
 
 of the government, 83 
 
 116. Due process of law defined, 83 
 
 117. The federal rule for determining what is "due process of 
 
 law," 85 
 
 118. Same — Controlling force of the federal constitution, 86 
 
 119. Same — Same — Decision of administrative oflScers as to 
 
 right of foreigners to enter the United States, 86 
 
 120. The "due process of law" of the English constitution em- 
 
 bodied in the amendments to the federal constitution, . . 88 
 
 121. Unreasonable search and seizure, 88 
 
 122. Same — Requisites of lawful search, 89 
 
 123. No person compelled to be a witness against himself in a 
 
 criminal case, 90 
 
 124. Same — Extent and application of the principle, 91 
 
 125. Same — Meaning of the words, "any criminal case," 92 
 
 126. Same — Same — Discovery in a suit in chancery, 93 
 
 127. Same — Same — Statutes protecting witnesses from prosecu- 
 
 tion, 94 
 
 128. Same — Same — Act in relation to testimony before the inter- 
 
 state commerce commission, 95 
 
 129. The maxim Nemo tenetur seipsum aceusare — Its history, 
 
 and exceptions to the rule, 9& 
 
 130. Same — Test of admissibility of confessions, 98 
 
 131. Fourth and fifth amendments violated by federal legislation, 99 
 
 132. Presentment or indictment by grand jury required in prose- 
 
 cutions for infamous crimes, 101 
 
 b 
 
Xll TABLE OF CONTENTS. 
 
 i 133. Office and functions of the grand jury, ..'. 101 
 
 134. Indictment cannot be amended or changed by the court, . . . 104 
 134a. Defendant discharged on habeas corpus when convicted of 
 
 infamous crime without indictment of grand jury, 104 
 
 135. "Infamous crime" defined, 105 
 
 136. Same — Felony, 105 
 
 137. Exception to the constitutional rule requiring indictments 
 
 in the prosecution of infamous crimes — Land and naval 
 forces — Militia in actual service, 107 
 
 138. Constitutional right of trial by jury in criminal cases 107 
 
 139. Same — It is a common-law jury of twelve men, and a trial 
 
 according to the rules of the common law, 107 
 
 140. Speedy and public trial, ; . . 108 
 
 141. Same — When crimes against federal laws are local and 
 
 when not, 109 
 
 142. Same — Right of accused to be informed of the nature and 
 
 cause of the accusation, 110 
 
 143. Same — Right of accused to be confronted with the witnesses 
 
 against him— Exceptions — Dying declarations Ill 
 
 144. Same — Same — Object of the constitutional provision — Cross- 
 
 examination ground of exception to the rule, . . .' 113 
 
 145. Same — Right of accused to compulsory process for witnesses 
 
 and assistance of counsel, 114 
 
 146. Punishment — Cruel and unusual not to be inflicted, 115 
 
 147. Same — Same — Cumulative penalties imposed on habitual 
 
 criminals 116 
 
 148. No person twice in jeopardy for same offense — Meaning of 
 
 the prohibition, 116 
 
 149. Same — Acquittal upon defective indictment — Common-law 
 
 rule, 116 
 
 150. Same — Same — Rule as to acquittal upon defective indict- 
 
 ment in the federal courts 117 
 
 151. Same — The verdict constitutes the bar, 117 
 
 152. Same — When defendant procures verdict of conviction set 
 
 aside, 117 
 
 153. Same — Several counts in the indictment — Nolle prosequi as 
 
 to some — No finding as to others 118 
 
 154. Same — Disagreement of the jury — Discharge for bias, dis- 
 
 qualification or corruption 119 
 
 155. Ex post facto laws — Inhibition applies only to legislation 
 
 concerning crimes, 120 
 
 156. Same — ^Reason for the constitutional inhibition, 121 
 
 157. Same — Defined 122 
 
 158. Same — Change in the law of procedure, 123 
 
 159. Same — Legislative acts valid as to one class of cases and 
 
 void as to another class, 124 
 
 160. Same — Illustrations, 124 
 
 161. Same — Statutes mitigating punishment — What is a mitiga- 
 
 tion, 125 
 
TABLE OF CONTENTS. XUl 
 
 g 162. Same — When accused discharged 126 
 
 163. Constitutional right of trial by jury in civil cases at law, . . 126 
 
 164. Same — Meaning of the phrases "cases in law" and "suits at 
 
 common law," 127 
 
 165. Same — Trial hy jury defined, 127 
 
 166. Same — ^Not to be defeated by blending legal and equitable 
 
 demands, 128 
 
 167. Same — Philippine Islands, 128 
 
 168. Same — ^Not applicable to court of claims, 129 
 
 169. Fact tried by jury not re-examined otherwise than accord- 
 
 ing to the rules of the common law 130 
 
 170. Same — Doctrine stated by Justice Gray 131 
 
 171. Same — Facts tried by jury in bankruptcy proceedings, re- 
 
 viewable on writ of error only, 131 
 
 172. Eminent domain, 132 
 
 173. Same— Public use, 132 
 
 174. same — What is a taking 133 
 
 175. Same — Mode of procedure in exercising the power 134 
 
 176. Samie — Compensation 134 
 
 177. Writ of habeas corpus, " 135 
 
 CHAPTER VI. 
 
 LIMITATIONS IMPOSED BY THE FEDERAL CONSTITUTION 
 UPON THE STATES. 
 
 <a) The Effect of the La.te Amendments Upon the State and Fed- 
 eral Governments and Their Relations Toward Each Other, 
 AND Upon the Relations of Each Toward the People., 
 
 178. The purposes of this chapter 143 
 
 179. Principles of the government as settled prior to the adoption 
 
 of the late amendments, 144 
 
 180. Same — Divided sovereignty — The doctrine of Marshall, Ta- 
 
 ney and Waite, 146 
 
 181. Same — Municipal sovereignty of the states defined, 148 
 
 182. Same — Same — State's power of taxation, 150 
 
 183. Same — Same — Taxation of property employed in interstate 
 
 commerce, 151 
 
 184. Same — Same — Taxation of intangible property 152 
 
 185. Same — Same — Same, 153 
 
 186. Same — Same — Power of state to fix situs of stock of corpora- 
 
 tion for purposes of taxation, 153 
 
 187. Same — Same — Power of state to tax personal property with- 
 
 out regard to domicile of owner, 153 
 
 188. Same — Same — Inheritance tax, 155 
 
 189. System of government not changed by the adoption of the ' 
 
 late amendments 156 
 
 190. The police power of the states preserved intact, 157 
 
XIV TABLE OF CONTENTS. 
 
 § 191. Same — State police regulations incidentally affecting inter- 
 state and foreign commerce — ^Rights secured by tlie con- 
 stitution 160 
 
 192. Same— Sunday laws, 162 
 
 193. Same — Power of the state to regulate the use of property 
 
 "affected with a public interest," 163 
 
 194. Same — Regulation of railroads, , 165 
 
 195. Same — Same — The state may prohibit the consolidation of 
 
 parallel railway lines 166 
 
 196. Same — Maintaining safety of railroad crossings 168 
 
 197. Same — Limiting hours of labor in unhealthy employments, 169 
 
 198. Same — State statute requiring company "store orders" to 
 
 be redeemed in cash, 170' 
 
 199. Same — Health regulations 171 
 
 200. Same — Power of municipal corporations to impose license 
 
 fee on interstate telegraph lines to pay cost of police su- 
 pervision, 172 
 
 201. Same — Power of the state to protect local commerce and 
 
 local industries from unlawful restraints and monopolies, 173 
 
 202. Same — Same — Distinction between commerce and manufac- 
 
 ture, 174 
 
 203. Same — Growth and expansion of the police power since the 
 
 adoption of the late amendments 174 
 
 204. The power of the states to maintain their own internal pol- 
 
 ity and judicial systems not taken away by the adoption 
 
 of the fourteenth amendment, 176 
 
 205. Same — Sovereignty for protection of fundamental rights 
 
 rests with the states — ^Not in the federal government, . . . 178 
 206. Same — Same — Same — Individual invasion of the rights guar- 
 antied by the fourteenth amendment, 182 
 
 207. Same — Same — Same — Protection of the elective franchise, 184 
 
 208. Same — Power of the states to maintain their own judicial 
 
 procedure, 186 
 
 (6) The Iktent a>t) Application op the Late Amendments 
 Wgeked Out by the "Gradital Pkocess of Judicial Inocu- 
 sioN AND Exclusion." 
 
 209. Judicial method of constitutional construction — Early con- 
 
 stitutional history, 186 
 
 210. Same — Modern method — "Judicial inclusion and exclusion," 188 
 
 211. Same — Same — Same — Usual points of alleged conflict — 
 
 Frivolous contentions of litigants, 189 
 
 (c) Citizenship — National and State. 
 
 212. Citizenship defined 190 
 
 213. Same — The African race — Dred Scott case, 192 
 
 214. Two sources of citizenship 194 
 
 215. Natural-born citizens — ^Not defined by the constitution — 
 
 Resort had to the common law, 195 
 
TABLE OF CONTENTS. XV 
 
 § 216. Same — Common law rule, 196 
 
 217. Same — Common law rule prevailed in American colonies 
 
 and under original constitution — Slave population ex- 
 cepted, 197 
 
 218. ~ Same— Same — The Indian tribes, 197 
 
 219. "Same — Indian tribes not citizens by birth, since fourteenth 
 
 amendment, 199 
 
 220. The fourteenth amendment affirms and extends the coin- 
 
 mon law rule of citizenship by birth 199 
 
 221. 'Same — Chinese person born in the United States 201 
 
 222. Same — Meaning of the qualifying words; "And subject to 
 
 the jurisdiction thereof," 201 
 
 223.' The principle upon which foreign ministers are exempt 
 
 from local jurisdiction and their children excluded from 
 
 citizenship by birth, 202 
 
 224. Same — Same — The doctrine of Chief Justice Marshall re- 
 
 affirmed by recent decision, 204 
 
 225. Same — Same — Consiils and their children not within the 
 
 principle, 207 
 
 226. Principle upon which children born in hostile occupation 
 
 are excluded from citizenship, 208 
 
 227. Same — Person horn within the seceded states, 209 
 
 228. Resume as to the qualifying words of the citizenship clause 
 
 of the fourteenth amendment, 209 
 
 229. Citizenship by naturalization 210 
 
 230. Same — Citizenship of married woman follows that of her 
 
 husband, 210 
 
 231. "Collective naturalization" by the admission of new states 
 
 into the union 211 
 
 232. Same — Texas admitted into the union with her population 
 
 as it stood. 211 
 
 233. "Collective naturalization" by treaty or statute, 212 
 
 234. Dual citizenship, 213 
 
 235. The fourteenth amendment added nothing to the rights of 
 
 citizenship, 214 
 
 236. Expatriation — Right of declared by federal statute, 214 
 
 237. Same-^Not accomplished by mere declaration of intention, 214 
 
 (d) The Pbiveleges and Immunities of the Citizens of the Sev- 
 eral States. 
 
 238. Complex nature of those rights denominated "Privileges 
 
 and immunities of citizens," 215 
 
 239. Privileges and immunities of citizens not defined in the 
 
 constitution, 217 
 
 240. Privileges and immunities of citizens defined by judicial 
 
 inclusion and exclusion only 218 
 
 241. History of the words "Privileges and immunities, of citi- 
 
 zens"-^Colonial charters 218 
 
 242. Same — Declaration of rights of 1774 219 
 
XVI TABLE OP CONTENTS. 
 
 § 243. Same — Provisions of the articles of confederation, 219 
 
 244. Privileges and immunities of the citizens of the several 
 
 states under the constitution 220 . 
 
 245. Same — Defined by Justice Washington, 220 
 
 246. Same — Defined by Justice Field, 221 
 
 247. S^me— Defined by Justice Miller 222 
 
 248. Same — Commercial equality, ..•....' .■ 222 
 
 249. Same — Equality of right in assets of insolvent debtor, .... 223 
 
 250. Same — Protection of personal liberty 223 
 
 251. Same — Same — ^Liberty of contract, 224 
 
 252. Same — Corporations not citizens within the meaning of 
 
 this constitutional provision, 226 
 
 253. Same — Common property of the state — Fisheries, 227 
 
 254. Same — ^Marital rights 228 
 
 255. Same — Statute of limitations not running in favor of party 
 
 out of the state, 229 
 
 256. Same — Intention of the constitutional provision 229 
 
 (e) The Pbivilegbs and Immunities op Citizens of the United 
 
 States not to be Abeidged. 
 
 257. Privileges and immunities of citizens of the United States 
 
 protected by the fourteenth amendment — Limitation upon 
 the states 229 
 
 258. Privileges and immunities of citizens of the United States 
 
 partially enumerated by the supreme court, 229 
 
 259. What are not privileges and immunities of citizens of the 
 
 United States— Right to vote, 231 
 
 260. Same — Right to practice law in state courts, 231 
 
 261. Same — Right to sell Intoxicating liquors, 231 
 
 262. Same — State statutes prohibiting the carrying of danger- 
 
 ous weapons, 232 
 
 263. Same — State laws requiring separation of the races on rail- 
 
 way trains 232 
 
 264. Same — State statute regulating the slaughter of animals, 232 
 
 265. Same — State judicial procedure, 233 
 
 260. Same — Same — Jury in civil cases 234 
 
 267. Same — Same — Form of action in civil cases 235 
 
 268. Corporations not citizens within the meaning of the consti- 
 
 tutional provision, 235 
 
 (f ) No State to Depeive Any Peeson of Life, Liberty, ok Prop- 
 
 erty, Without Due Process of Law. 
 
 269. The "due process of law" of the state — Meaning of the con- 
 
 stitutional provision, 235 
 
 270. Same — The states control their own judicial procedure — 
 
 Law a progressive science 237 
 
 271. Same — First ten amendments no restraint on the states, 239 
 
 272. Same — Same — Criminal prosecution upon information, . . . 240 
 
TABLE OF CONTENTS. XVU 
 
 § 273. Same — Same — Criminal trial by a jury of less than twelve 
 
 men, 240 
 
 274. Same — Same — Capital execution by electricity, 241 
 
 275. Same — Same — Confronting accused with witnesses 241 
 
 276. Same — Same — Unreasonable searches and seizures — Evi- 
 
 dence, 242 
 
 277. Same — Same — Trial without jury in civil cases 243 
 
 278. Same — ^Same — Contempt trial without a jury, 244 
 
 279. Same — Same — Form of action or proceedings, 244 
 
 280. Same — Same— Notice, 245 
 
 281. Same — E3ininent domain, 245 
 
 282. Same — Same — ^Whether a taking is for a public use presents 
 
 a federal question, 246 
 
 283. Same — Same — Taking for private use, 248 
 
 284. Same — Same — State laws fixing destructive rates for com- 
 
 mon carriers, 248 
 
 285. Same — ^State law requiring transfer facilities at railroad 
 
 intersections 249 
 
 286. Same — Same— Limitations of the fourteenth amendment 
 
 operate on all Instrumentalities of the state government, 251 
 
 287. Same — State statute denying non-resident corporation 
 
 equality in distribution of insolvent's assets, 252 
 
 288. Due process of law in state taxation — Strict judicial pro- 
 
 cedure not required 252 
 
 289. Same — ^When notice and an opportunity to be heard are 
 
 requisite, 254 
 
 290. Same — Same — ^What is due process of law in taxation — 
 
 General rule, 255 
 
 291. Same — Same — Saiae — Notice ., 256 
 
 292. Same — Same — Local assessments — rule of apportionment, 257 
 
 293. Same — Same — ^Same — Frontage rule — Norwood v. Parker, . 258 
 
 294. Same — Same — Taxing non-resident mortgagee's interest in 
 
 the mortgaged land 259 
 
 295. Same — Same — Classification for taxation, 260 
 
 296. Same — Same — Corporations, 260 
 
 297. Same — Same — State constitution and laws on taxation must 
 
 be considered together 260 
 
 298. Same — Taxing power vested in the legislature, 261 
 
 (g) Equal Protection of the Laws. 
 
 299. The states prohibited denying equal protection of the laws, 263 
 
 300. Corporations are persons within the prohibition, 263 
 
 301. Classification for purposes of legislation 263 
 
 302. Same — Rules stated by supreme court of Wisconsin, 264 
 
 303. Same — State statute abolishing common law fellow-servant 
 
 rule in personal injury cases, 264 
 
 304. Same — State statutes making railroad companies absolutely 
 
 responsible for damages by fire from their engines, 265 
 
XVlll TABLE OF CONTENTS. 
 
 § 305. Same — State statute making proof of fire by railroad en- 
 gine prima facie evidence of negligence — Attorney's fees, 266 
 
 306. Same — ^^Tien statute allowing attorney's fee is penalty for 
 
 failure to pay debt, 267 
 
 307. Same — State statute requiring railroad companies to fence 
 
 track — Double damages for killing stock, 267 
 
 308. Same — Regulation of warehouses and elevators, 267 
 
 309. Same — Life and health insurance companies — State statute 
 
 imposing damages and attorney's fees for failure to pay 
 
 policy when due 268 
 
 310. Same — Limiting hours of labor in mines, 268 
 
 311. Same — Illinois trust act, 269 
 
 312. Taxation and the equal protection of the laws, 269 
 
 313.. Same — The unit rule in the taxation of interstate commerce 
 
 lines, 271 
 
 314. Same — Same — Method of assessment, 272 
 
 315. Same — Power of the state to fix the situs of the transitory 
 
 property of railroads for purposes of taxation, 272 
 
 316. Same — ^Power of the state to tax railroad companies to pay 
 
 salaries and expenses of railroad commission, 274 
 
 317. Same — Classification 277 
 
 318. Power of the state to impose conditions of admission 
 
 upon foreign corporations, 277 
 
 319. Civil rights — Exclusion of negroes from grand and petit ' 
 
 juries, 278 
 
 320. The fourteenth amendment does not require state judicial 
 
 procedure to be uniform 279 
 
 321. Power of the state to classify cities for the registration of 
 
 voters, 280 
 
 322. State law imposing penalty on railroad companies for dis- 
 
 seminating Johnson grass seed 280 
 
 323. The design of the "equal protection" clause of the four- 
 
 teenth amendment, , 281 
 
 324. Conspiracy to deprive persons of the equal protection of the 
 
 laws— Section 5519 U. S. Revised Statutes void, 282 
 
 (7i) The Right of Citizens of the United States to Vote Not 
 TO be Abbidoed on Account of Race, Goloe, oe Pbevious 
 Condition of Seevitcjdb. 
 
 325. The fifteenth amendment does not confer the right to vote, 282 
 
 326. The right tn vote derived from the state, 283 
 
 327. The fifteenth amendment a limitation upon the federal and 
 
 state governments, 283 
 
 328. Same — The only inhibited abridgement is one based on 
 
 race, color, or previous condition of servitude, 284 
 
 (i) Laws Impairing the Obligation of Contracts. 
 
 329. No state to pass law impairing obligation of contracts — 
 
 Prohibition upon the states — Method of enforcement, . . . 284 
 
TABLE OF CONTENTS. XIX 
 
 ■§ 330. Same — Same— Power of United States circuit courts tD de- 
 clare such, statutes void, 285 
 
 331. The federal supreme court will determine for itself whether 
 
 there is a contract and whether its obligation is im- 
 paired, 285 
 
 332. Contract defined 286 
 
 333. Same — Charters of private corporations 287 
 
 334. Same — Same — Rule for construing legislative grants, 289 
 
 334a. The prohibition protects all contracts, without regard to 
 
 their nature or the character of the parties 289 
 
 3346. Marriage not within the prohibition 291 
 
 335. "Obligation of contract" defined 292 
 
 336. Same — Axioms in American jurisprudence, 293 
 
 337. Changing the remedy ; . . . 293 
 
 338. Same— Rule stated by Mr. Justice Bradley 294 
 
 339. Change in statute of limitations, 294 
 
 340. Judgment for tort not a contract, 295 
 
 341. Withdrawing the power of taxation from municipal cor- 
 
 porations impairs contract, when, 295 
 
 342. Increasing exemption from execution sale, 296 
 
 343. Laws altering terms of contracts 296 
 
 344. What are laws? .' 296 
 
 345. Same — Judicial decisions 296 
 
 ■346. Same — Same — Change of state decision 297 
 
 347. Same— Same 297 
 
 ■348. The constitutional inhibition prospective only 297 
 
 (j) No State to.Bmit Bills op Credit. 
 
 349. Bills of credit defined, 298 
 
 350. Same— Defined by Chief Justice Marshall, 298 
 
 (fc) Bills of Attainder and Ex Post Facto Laws. 
 
 351. Bills of attainder and ex post facto laws, 298 
 
 'it) No Imposts or Duties to be Laid by the States on Imports 
 OK Exports Except for Executing Inspection Laws. 
 
 352. The state prohibited from taxing imports and exports — Ex- 
 
 ception, 299 
 
 353. Imports and exports defined 299 
 
 354. Impost defined, 299 
 
 355. The inhibition does not apply to interstate shipments 299 
 
 356. Right of the importer to sell in the original packages with- 
 
 out taxation by the state, 300 
 
 357. Same — Brown v. Maryland 300 
 
 ■358. Same — ^What is the "original package," 301 
 
 359. Tax on sales of imports made by auctioneer 301 
 
 360. Effect of a sale of imported articles 302 
 
 361. Duty on exports defined, 303 
 
 ■3G2. Cost of executing Inspection laws — Exception to inhibition, 303 
 
XX TABLE OF CONTENTS. 
 
 (m) Tonnage Duties. 
 
 § 3G3. The states prohibited from levying tonnage tas, SO'f 
 
 364. Tonnage defined, 304 
 
 ■ 365. Tonnage tax defined 304 
 
 366. The prohibition applies to vessels engaged in local com- 
 
 merce, 305 
 
 367. The prohibition does not extend to property tax on vessels, 306 
 
 368. Charges for the use of local aids to commerce — ^Wharfage, 306 
 
 369. Same— Same, 307 
 
 370. Same — Same — ^What Is not wharfage 307 
 
 371. Tonnage tax cannot be levied to defray cost of executing 
 
 quarantine regulations, 308 
 
 372. Whether a charge is wharfage or a tonnage duty is a ques- 
 
 tion of fact and law, 309 
 
 373. Whether wharfage is reasonable must be determined by 
 
 the local law, SO* 
 
 374. Purpose and design of the constitutional prohibition 
 
 against state tonnage duties, 310 
 
 CHAPTER VII. 
 THE FEDERAL, JUDICIARY. 
 
 375. Judicial power requisite to the existence of government, .. 312 
 
 376. The vital principle which supports written constitutions — 
 
 The duty of the judiciary, 3ia 
 
 377. The legislative, executive and judicial departments of gov- 
 
 ernment to be kept separate 313- 
 
 378. The confederacy under the articles of confederation was a 
 
 league of sovereign states and not a government, 313 
 
 379. Same — No judiciary under the confederacy, 314 
 
 380. Same — The confederation had no power to enforce its laws, 314 
 
 381. The federal government created and invested with full ju- 
 
 dicial power, 315- 
 
 382. The limits of the judicial power defined in the constitution, 
 
 but the power not distributed by it, 316 
 
 383. Same — ^Limits of the grant of judicial power 316 
 
 384. Same — Constitutional distribution of judicial power to the 
 
 supreme court, 317 
 
 385. The constitution requires the judicial power to be vested 
 
 in a system of federal courts — Not in the state courts, . . 318 
 
 386. Same — "Inferior courts" of the United States 319' 
 
 387. Constitutional provision securing the independence of the 
 
 federal judiciary, 319' 
 
 388. The constitution mandatory upon congress to organize the 
 
 federal judiciary, 320 
 
 389. Same — The federal judiciary organized by congress under 
 
 the original judiciary act, 32* 
 
• TABLE OF CONTENTS. XXI 
 
 § 390. Same— Creation of the United States circuit courts of ap- 
 peals 321 
 
 ' 391. Courts constituting tlie federal judicial system 321 
 
 392. Same — Inferior courts not inferior in the common law 
 
 sense, 322' 
 
 393. The jurisdiction of the federal judiciary is co-extensive 
 
 with the legislative power, 322 
 
 394. The federal judiciary necessary to enforce the constitu- 
 
 tional limitations upon the states 323 
 
 395. The federal judiciary necessary to restrain federal legis- 
 
 lation within constitutional limits, - 325 
 
 396. The federal judiciary necessary to maintain the supremacy 
 
 of the federal constitution and the authority of the fed- 
 eral government, , 326 
 
 397. The federal judiciary a peaceful means of removing ob- 
 
 structions to interstate commerce, 327 
 
 398. Relation of the federal judiciary to the national peace, . . 328- 
 
 399. Relation of the federal judiciary to domestic tranquility 
 
 and peace, 32S 
 
 400. Territorial courts not courts of the United States, 329 
 
 401. The court of claims a special court 329 
 
 CHAPTER VIII. 
 
 THE RELATION OF THE FEDERAL JUDICIARY AND THE STATE 
 JUDICIARY TO EACH OTHER. 
 
 402. Eixclusive jurisdiction of federal courts over particular sub- 
 
 jects, .' 330 
 
 403. Same — Not affected by general statutes defining the concur- 
 
 rent jurisdiction 331 
 
 404. The threefold character of federal jurisdiction 332 
 
 405. The federal courts and state courts for Some purposes con- 
 
 stitute one judicial system, 333 
 
 CHAPTER IX. 
 
 THE ORIGINAL JURISDICTION OF THE SUPREME COURT OF 
 THE UNITED STATES. 
 
 406. Two general classes of cases over which the supreme court 
 
 is granted original jurisdiction 334 
 
 407. Same— Classification of cases in which a state may be a 
 
 party, 334 
 
 408. Same — Sam« — No jurisdiction of suit by state against own 
 
 citizens 335 
 
 409. The original jurisdiction not made exclusive 335 
 
 410. Same — Jurisdiction of the court of claims — United States 
 
 v. Louisiana, 336- 
 
XXll TABLE OP CONTENTS. 
 
 § 411. Suits 'between states to settle 'boundaries 336 
 
 412. Jurisdiction of suits between states not confined to contro- 
 
 versies to settle boundaries 337 
 
 413. Same — Diversion by one state of flow of water into another, 337 
 
 414. In suits between states there must be a justiciable contro- 
 
 versy between them as states, 338 
 
 415. Suits by the United States against a state, 339 
 
 416. The jurisdiction extends to suits of a civil nature only, . . . 339 
 
 417. Procedure in the supreme court in cases of original juriS' 
 
 diction, 340 
 
 CHAPTER X. 
 
 THE FEDERAL APPELLlATE JURISDICTION. 
 
 <o) The Appellate JuRiSMCTiojr of the Fedeeal SUpbeme Couet 
 OvEE THE State Courts. 
 
 418. The appellate jurisdiction of the federal supreme court over 
 
 state courts derived from the constitution, 342 
 
 419. Same — Power of congress to regulate the exercise of the ap- 
 
 pellate jurisdiction of the supreme court 343 
 
 420. Text of the federal statutes regulating the exercise of the 
 
 appellate jurisdiction of the supreme court over the state 
 courts, 344 
 
 421. Judgment of state court reviewed by supreirie court upon 
 
 writ of error only, 345 
 
 422. Same — ^Writ of error defined by the common law, 346 
 
 423. Same — Same-^A writ of error is not the commencement of 
 
 a suit but the continuation of one previously brought, . . 348 
 
 424. No re-examination of facts upon writ of error from Su- 
 
 preme Court to state court 349 
 
 425. Classification of cases in which the supreme court has juris- 
 
 diction to review the final judgments and decrees of state 
 courts, 349 
 
 426. The jurisdiction of the supreme court must appear from 
 
 the face of the record, 350 
 
 427. When the federal question should be raised 351 
 
 428. Same — Discretion of state court as to when federal question 
 
 may be raised, 353 
 
 429. The federal question must be raised and presented in the 
 
 proper way, 353 
 
 430. Degree of certainty required in setting up the federal ques- 
 
 tion, 355 
 
 431. Same — Federal question must be called to attention of state 
 
 court, .'.......'... 356 
 
 432. The opinion of the state court is part of the record — Cer- 
 
 tificate of the presiding judge, 356 
 
TABLE OF CONTENTS. XXllI 
 
 ! 433. Neither petition for 'writ of error nor assignm-ent of errors 
 
 forms a part of record, 357 
 
 434. The supreme court must determine its .own jurisdiction, 357 
 435.. To .give the supreme court jurisdiction the federal question 
 must have been decided adversely to the plaintiff in er- 
 ror, 35S 
 
 436.. Extent of the jurisdiction of the supreme court on writ of 
 
 error to state court — What questions may be reviewed, . . 35S 
 
 437. Writ of error lies to review final judgments only, 360 
 
 438. Same — Final judgment defined, 361 
 
 439. To what court of the state the writ of error should be di- 
 
 rected 362 
 
 440. Same — The writ should run to the court where the record 
 
 remains, 363 
 
 441. Same — Same — ^When the writ of error is issued before the, 
 
 record is sent down to the inferior court, 363 
 
 442. The writ of error the foundation of the jurisdiction, 364 
 
 443. What judges may allow the writ of error, 364 
 
 444. What clerks authorized to issue the writ 364 
 
 445. Form and requisites of the writ of error, 365 
 
 446. Service and return of the writ of error, 365 
 
 447. Same — ^When clerk of state court refuses to make return, . . 366 
 
 448. The writ of error may be amended, 366 
 
 449. Supersedeas upon writ of error — A statutory remedy, .... 368 
 
 450. Citation in error — By what judges signed, 369 
 
 451. Service of citation In error — Upon attorney and counsel of 
 
 record, '. 369 
 
 452. Mode of serving citation in error, 371 
 
 453. Writ of error bond 371 
 
 454. The writ of error must be brought within two years, .... 371 
 
 455. Parties to writs of error, 372 
 
 456. The plaintiff in error must have a personal interest in the 
 
 federal question, 373 
 
 457. The plaintiff in error must bring his case within the judi- 
 
 ciary act, 374 
 
 458. Same — Specific classification of federal questions embraced 
 
 within the statute, 374 
 
 (6) Appellate Jurisdiction O^iik the Infeeioe Federal Coubts. 
 
 459. Appellate jurisdiction of the supreme court over circuit and" 
 
 district courts, 375 
 
 460. Same — No pecuniary limit, 378 
 
 461. Same — Two years allowed In which to take appeals and 
 
 writs of. error, 376 
 
 462. Same — ^Wrlts of error on behalf of the United States in 
 
 criminal cases where there has been no jeopardy or ver- 
 dict in favor of defendant, 377 
 
XXIV TABLE OP CONTENTS. 
 
 § 463. Appelate iurisdiction of tlie supreme court over the cir- 
 cuit courts of appeals 377 
 
 464. Appellate jurisdiction of the supreme court over the court 
 
 of claims 37S 
 
 465. Same — Time and manner of taking ^ — 378 
 
 466. Appellate jurisdiction of the United States circuit courts 
 
 of appeals 378 
 
 466a. Same — Time allowed for taking writ of error on appeal, 379 
 
 CHAPTER XI. 
 
 JURISDICTION OP THE FEDERAL JUDICIARY TO ISSUE WKITS 
 OF HABEAS CORPUS. 
 
 467. Jurisdiction of the federal judiciary to grant writs of ha- 
 
 beas corpus, 380 
 
 468. What courts and judges may issue writs of habeas corpus, 381 
 
 469. Supreme court may issue the writ in the exercise of either 
 
 original or appellate jurisdiction, 381 
 
 470. Nature and object of the writ — ^Cannot perform the office 
 
 of a writ of error 382 
 
 471. Classes of cases in which the federal courts may issue the 
 
 writ of habeas corpus, 383 
 
 472. Jurisdiction of the supreme court to issue the writ when 
 
 the prisoner is held under a void judgment of a federal 
 court, 384 
 
 473. Same — Writ may issue before, a final judgment, 385 
 
 474. Same — Same — Inquiry into the jurisdiction of Inferior 
 
 courts may extend to facts outside the record, 386 
 
 475. Jurisdiction to issue the writ when prisoner is held under 
 
 void judgment of court martial, 386 
 
 476. Jurisdiction to issue the writ when prisoner is held under 
 
 void sentence of military commission 386 
 
 477. Same — Jurisdiction of supreme court to issue writ when 
 
 circuit court remands prisoner 387 
 
 478. Jurisdiction to issue the writ when the prisoner is in cus- 
 
 tody under state authority in contravention of federal 
 
 authority 387 
 
 479. Same — Cases of urgency requiring immediate action, 389 
 
 480. Same — Interstate extradition, 389 
 
 481. Same — Same — Concurrent jurisdiction of state courts 391 
 
 482. Application for the writ of habeas corpus, 392 
 
 483. The award and direction of the writ, 392 
 
 484. Return of the writ 392 
 
 485. Same — Production of the body, 393 
 
 486. Day set for hearing— Pleadings 393 
 
 487. Same — Summary hearing and disposition of the party, . . . 393 
 
TABLE OP CONTENTS. XXV 
 
 CHAPTER XII. 
 
 THE JURISDICTION OP THE STJPREMEi COURT TO ISSUE WKITS 
 OF PROHIBITION, MANDAMUS AND CERTIORARI. 
 
 (a) The Weit op Pbohibition. 
 •■§ 488. Writ of prohibition denned 394 
 
 489. The writ is preventive — ^Will not lie after the cause is 
 
 ended 395 
 
 490. Jurisdiction of the supreme court of the United States to 
 
 issue the writ of prohibition, 395 
 
 491. When the writ will be granted, 396 
 
 492. The want of jurisdiction must appear from the record 396 
 
 493. The writ of prohibition not of great importance in the fed- 
 
 eral judicial system, '. 396 
 
 (6) The Wkit op Mandamus. 
 
 494. The writ of mandamus defined by the common law; 397 
 
 495. Jurisdiction of the supreme court to issue the writ of man- 
 
 damus regulated by statute, 397 
 
 496. Same — Power of supreme court to issue writ in exercise of 
 
 original jurisdiction limited by the constitution, 398 
 
 497. Writ of mandamus issued by the supreme court chiefly in 
 
 aid of its appellate jurisdiction, 398 
 
 498. 'WTien the writ of mandamus will issue to inferior courts of 
 
 the United States, 399 
 
 499. "Writ cannot issue in cases when the supreme court has 
 
 neither original nor appellate jurisdiction, 400 
 
 500. Writ cannot be used as a writ of error or appeal 400 
 
 501. The writ cannot be issued to state courts, 400 
 
 (c) The Writ op Germoraki. 
 
 502. Jurisdiction to issue the writ under the original judiciary 
 
 act 401 
 
 503. Same — Court cannot issue the writ when it has no jurisdic- 
 
 tion over the case, 401 
 
 504. Same — Writ cannot issue to review proceedings of military 
 
 tribunal, 401 
 
 505. Jurisdiction to issue the writ under the judiciary act of 
 
 March 3, 1891, 402 
 
 CHAPTER XIII. 
 
 'THE ADMIRALTY JURISDICTION OP THE DISTRICT COURTS OF 
 THE UNITED STATES. 
 
 (a) The Basis op the Admiralty Jurisdiction op the Pedebal 
 
 Judiciary. 
 
 506. Three great jurisdictions embraced within the judicial 
 
 power of the United States, 405 
 
XXYl TABLE OF CONTENTS. 
 
 § 507. The question as to the limits of the judicial power in ad- 
 miralty and maritime jurisdiction is a judiciarl question, 407 
 
 508. Same — Judicial tendency to enlarge the jurisdiction 408 
 
 509. The general maritime law not in force in this country ex- 
 
 cept so far as adopted 409 
 
 510. The power of congress to legislate upon the subject of mari- 
 
 time law, 410 
 
 511. Legislative adoption of rule of general maritime law 411 
 
 512. The maritime code of. the United States, 412 
 
 513. Same — The limited liability act 412 
 
 514. Same— The Harter act 413 
 
 515. Same — Legislation of congress in regard to seamen 413 
 
 516. Federal legislation forfeiting vessels fitted out with intent 
 
 to violate neutrality, 413 
 
 517. The law of the high seas, 414 
 
 518. Same — Contracts of affreightment made in foreign coun- 
 
 tries 415 
 
 519. The judicial power extends to two classes of civil suits in 
 
 admiralty, 415 
 
 520. In the adjudication of prizes, courts of admiralty are gov- 
 
 erned by the laws of nations 416 
 
 521. Power of congress to make rules concerning prizes or mar- 
 
 itime captures 416 
 
 522. Seizure and condemnation of piratical vessels, 417 
 
 523. Forfeiture and condemnation of maritime captures not de- 
 
 pendent upon criminal conviction in personam 417 
 
 524. Rule defining the public navigable waters of the United 
 
 States, . ., 418 
 
 525. Same — Portage and artificial improvements, 420 
 
 526. Same — Navigable rivers fiowing wholly within the terri- 
 
 torial limits of one state 431. 
 
 527. Same — Same — Illustration — The Alabama river 421 
 
 528. Same — Same — Same — The Yazoo river in the state of Mis- 
 
 sissippi 422 
 
 529. Same — Same — Same — Grand river in the state of Michigan, 423 
 
 530. Same — Same^ — Same — Fox river in the state of Wisconsin, 424 
 
 531. Same — Canals, 424 
 
 532. Same — The admiralty jurisdiction not controlled by the 
 
 power to regulate commerce, 425 
 
 533. Same — What are navigable waters is a judicial question, 426 
 
 534. Rule defining navigable waters of the state, 427 
 
 535. The constitutional grant of judicial power over admiralty 
 
 and maritime causes did not operate as a cession of navi- 
 gable waters, 427 
 
 536. Criminal jurisdiction in admiralty, 428 
 
 537. History of federal legislation vesting admiralty jurisdic- 
 
 tion — Ninth section of the original judiciary act, 428 
 
 538. Same — Same — Seizures upon water 428 
 
TABLE OF CONTENTS. XXVll 
 
 § 539. iSame — Act of Feb. 26, 1845 — Founded in judicial mistake, 429 
 
 540. Same — Same — Same — Obsolete legislation, 430 
 
 541. Tlie state courts hare no admiralty jurisdiction, 430 
 
 542. Same — Tie states may create maritime liens, but cannot 
 
 confer on their own courts admiralty jurisdiction to en- 
 force them, 431 
 
 543. Same — Same — State cannot create lien on foreign vessel, 431 
 
 544. Contract and tort the sources of admiralty jurisdiction — 
 
 Exceptions, 431 
 
 545. Maritime contracts, .• 432 
 
 546. Same — Contracts not maritime — Building ship 432 
 
 547. Same — Same — Mortgage of vessel 432 
 
 548. Same — Same — Same — Mortgage not made maritime con- 
 
 tract by the registry act 433 
 
 549. Marine torts, 434 
 
 549a. Maritime liens — Defined, 434 
 
 5496. Same — Difference between maritime lien and common law 
 
 lien, 435 
 
 550. Same — The subjects of maritime liens, 435 
 
 551. Same — ^A maritime lien is a present right of property, .... 436 
 
 552. Same — ^Maritime liens arise out of both contract and tort, 436 
 
 553. Same — When lien is created, 436 
 
 554. Same — Priority of maritime liens, 437 
 
 555. Same — Same — Lien arising out of collision takes prece- 
 
 dence over antecedent lien for supplies, 437 
 
 556. Same — Same — Maritime lien for supplies takes precedence 
 
 over prior mortgage 438 
 
 557. Formfi of actions or sdits in admiralty, 439 
 
 558. Same — Jurisdiction in rem based on maritime lien 439 
 
 559. Same — Intervention pro interesse suo, 439 
 
 (6) The Exclusive Oeioinal Jtjeisdiction of the District Coxikts 
 OF THE United States in Admiralty and Mabitime Causes. 
 
 560. Jurisdiction of civil causes in admiralty, 440 
 
 561. Suits on maritime contracts, 440 
 
 562. Suits based on marine torts, 440 
 
 563. Same — Immaterial that the tort is committed within the 
 
 waters of a foreign country, 441 
 
 564. Same — To enforce maritime liens, 441 
 
 565. The ship and the owner not to be joined in the same libel, 442 
 586. Jurisdiction of suits by materialmen, 442 
 
 567. Jurisdiction of suits by seamen for wages, 444 
 
 568. Same — ^Wages not dependent on freight, 444 
 
 569. Jurisdiction of suits by master for his wages, . . .■. 444 
 
 570. Towage contracts, 445 
 
 571. Jurisdiction of suits to recover compensation for pilotage, 445 
 
 572. Same — State laws regulating pilotage constitutional, .... 446 
 
 573. Jurisdiction of suits for salvage 446 
 
 574. Same — ^Libel for salvage against the United States, 447 
 
 c 
 
XXVIU TABLE OP CONTENTS. 
 
 § 575. General average contribution, 447 
 
 576. Jurisdiction of suits on policies of marine insurance, .... 448 
 
 577. Jurisdiction of suits on maritime hypothecation, 449 
 
 578. Same — Bottomry bonds defined, 449 
 
 579. Same — Respondentia bonds, 450 
 
 580. Jurisdiction of suits on affreightment contracts, 451 
 
 680a. Jurisdiction of suits on contracts for the transportation of 
 
 persons, 451 
 
 581. Jurisdiction of suits based on charter-party, 451 
 
 582. Demurrage, 451 
 
 583. Stevedores, 452 
 
 584. Wharfage, '. 452 
 
 585. Lighterage 452 
 
 586. Consortship, i 452 
 
 687. Jurisdiction of petitory and possessory suits, 452 
 
 688. Jurisdiction of suits for damages by collision, 453 
 
 689. Same— Collision infra corpus comitatus, 453 
 
 590. Same — ^Venue of suits for damages by collision 453 
 
 591. Same — Concurrent common law remedy for damages by 
 
 collision 453 
 
 592. Jurisdiction of suits for damages to vessels caused by ob- 
 
 structions negligently left in navigable waters 454 
 
 693. Jurisdiction of libel in rem against vessel for negligent 
 
 destruction of beacon, 454 
 
 594. Jurisdiction of suits for assault and battery, 455 
 
 595. Action for marine tort resulting in death 455 
 
 696. Same — Jurisdiction in admiralty under state statutes, . . 455 
 
 597. Jurisdiction of suits under the limited liability act, 456 
 
 698. Jurisdiction of maritime seizures, 456 
 
 699. Same — Seizure necessary to vest jurisdiction 457 
 
 600. Same — Venue of suits to forfeit and condemn seizures, . . 457 
 
 601. Jurisdiction of suits for the restitution of vessels Illegally 
 
 seized, 457 
 
 602. Jurisdiction of prize jure telli 458 
 
 603. Venue of suits in admiralty, 458 
 
 604. Same — Interventions, 459 
 
 CHAPTER XIV. 
 
 THE COMMON-LAW AND EQUITY JURISDICTION OP THE DIS- 
 TRICT COURTS OP THE UNITED STATES. 
 
 605. District courts are courts of common law, equity and ad- 
 
 miralty, 461 
 
 606. District courts are government courts, ; 462 
 
 607. Statutes defining the jurisdiction of the district courts, . . . 463 
 
 608. Same — Additional legislation — Revised Statutes, 464 
 
 609. Criminal jurisdiction of the district courts, 464 
 
TABLE OP CONTENTS. XXIX 
 
 610. The district courts have no common-law jurisdiction of 
 
 crimes, 464 
 
 '811. Suits for penalties and forfeitures 465 
 
 612. S&.me — Action Of debt for pecuniary penalty, 465 
 
 613. Same — Exclusive jurisdiction of the district courts as to 
 
 penalties incurred under the custom laws, 466 
 
 614. Sane — Actions for penalties under federal statutes prohib- 
 
 iting importation of foreigners under contract to labor, 466 
 
 615. Suits at common law by the United States or officers thereof, 466 
 
 616. Same — Suits by receivers of national banks, 467 
 
 617. Same — Same — Jurisdiction to order receivers to sell or com- 
 
 pound debts, and sell real and personal property, 438 
 
 €18. Same — ^Action of debt on postmaster's bond 468 
 
 619. Suits in equity to enforce internal revenue tax liens, .... 468 
 
 620. suits for penalties and damages for frauds against the 
 
 United States, 469 
 
 '621. Suits arising under the postal laws, 469 
 
 622. Same — Suits in equity to set aside fraudulent conveyances, 469 
 
 ■623. Jurisdiction of seizures on land and waters not navigable, 470 
 
 624. Condemnation of property used In aid of insurrection, .... 470 
 
 ■625. Suits by assignees of debentures, 471 
 
 '626. Suits for injuries resulting from conspiracies in violation 
 
 of the "civil rights" act, 471 
 
 ■627. Same — Certain provisions of the "civil rights" legislation 
 
 declared unconstitutional 471 
 
 628. Suits to redress deprivation of rights secured by constitu- 
 
 tion and laws of the United States 472 
 
 629. Suits brought by aliens for torts in violation of the laws of 
 
 nations or treaties, 473 
 
 630. Same — When the original act may be looked to in aid of 
 
 construction 473 
 
 631. suits against consuls and vice-consuls, 474 
 
 632. Suits against the government under "the Tucker Act," . . 475 
 
 633. Same — Set-offs and counterclaims 476 
 
 634. Same — Limitation of suits — Six years, 476 
 
 635. Same — Cases "sounding in tort" excluded by "the Tucker 
 
 Act," 476 
 
 636. Same — Four classes of cases contemplated by "the Tucker 
 
 Act," 477 
 
 637. Same — Same — Implied contracts 477 
 
 638. Same — Suits by marshal to recover disbursements made to 
 
 pay court bailiffs, 477 
 
 639. Same — Suit for salvage when the government ' Is benefited 
 
 by the salvage service, 478 
 
 640. Jurisdiction of judicial proceedings by the federal govern- 
 
 ment to condemn private property for public use, 478 
 
 641. Same — A proceeding to condemn private property for public 
 
 use Is a suit at common law, 479 
 
XXX TABLE OF CONTENTS. 
 
 § 642. Jurisdiction of suits under the act to prevent unlawful oc- 
 cupancy of the public lands, 480 
 
 643. Jurisdiction of actions for damages under the interstate 
 
 commerce act, 480 
 
 644. Jurisdiction to issue writs of mandamus to compel equal fa- 
 
 cilities to shippers, 481 
 
 645. Same — Foundation of the right to the writ of mandamus. 481 
 
 646. Same — Same — Purposes of the interstate commerce act, . . 482 
 
 647. Same — Plea in abatement — Former suit pending, 483 
 
 648. Same — Increased jurfsdiction of the district courts by the 
 
 last amendment to the act, 483 
 
 649. Seizure and destruction of obscene books, ' pictures and 
 
 other articles imported from foreign countries in viola- 
 tion of law, 483 
 
 650. Jurisdiction of actions to recover penalties for violations of 
 
 the Safety Appliances Act, .'. 484 
 
 651. Jurisdiction of suits pending In territorial courts upon ad- 
 
 mission of the territory as a state 485 
 
 652. All issues of fact in actions at law tried by jury, 485 
 
VOLUME II. 
 
 CHAPTER XV, 
 
 THE COMMON-LAW' AND EQUITY JURISDICTION OF THE CIR- 
 CUIT' COURTS OP THE UNITED STATES. 
 
 (a) Statement of Some Gbneeal Principles Intboductoey to 
 THIS Chapter. 
 
 § 653. The circuit courts have no appellate jurisdiction, 491 
 
 654. Same — ^Exception — Review of the decisions of the board of 
 
 general appraisers of merchandise, 492 
 
 655. The circuit court the great court of original jurisdiction!, . . 492 
 
 656. Extent of the judicial power — ^A great political principle, 493 
 
 657. Same — A new political principle established by the consti- 
 
 tution, 494 
 
 €58. Distinction between judicial power and jurisdiction, 495 
 
 659. Jurisdiction defined, 496 
 
 660. Same — Continues until the judgment Is satisfied 496 
 
 661. Power to issue writs necessary for the exercise of jurisdic- 
 
 tion 497 
 
 662. Same — ^Writs of injunction In aid of jurisdiction 498 
 
 663. The jurisdiction of the federal courts defined by federal 
 
 legislation, 498 
 
 664. Same — Pour great federal judiciary acts, 499 
 
 665. The jurisdiction of the circuit courts is either concurrent 
 
 or. exclusive, 499 
 
 666. Object and purposes of this chapter ' 499 
 
 667. Same — The word "concurrent" — Its broad significance in 
 
 the federal judiciary acts,, 500 
 
 6) 'The Common Law and Equity Jurisdiction or the Circuit 
 Courts or the United States Concurrent With the 
 Courts or the Several States. 
 
 668. Jurisdiction of suits arising under the constitution, laws and 
 
 treaties of the United States, 502 
 
 669. Same — Defined, 503 
 
 670. Same — Same — Cause of action must depend on construction 
 
 and application of the constitution, law, or treaty, 504 
 
 671. Same — Same — Jurisdiction must appear from plaintiff's 
 
 own statement of his claim, 505 
 
 672. Same — Same — Averment of frivolous constitutional ques- 
 
 tion, 506 
 
XXXll TABLE OF CONTENTS. 
 
 § 673. Same — Constituent elements of tlie jurisdiction, 506 
 
 674. Same — Same — Same — Tlie facts must be pleaded, 507 
 
 675. Same — Three classes of cases arising under this head of 
 
 federal jurisdiction, 508 
 
 676. Suits arising under the constitution — Not susceptible of 
 
 classification, 508 
 
 677. Same — State laws "impairing the obligation of contracts," 509 
 
 678. Same — Same — Contracts made by state, ..'. 510 
 
 679. Same — Same — Same — Th€ Virginia tax and coupon cases, 511 
 
 680. How a suit in equity may arise under the federal constitu- 
 
 tion, 513 
 
 681. Same — Suit in equity to enjoin unconstitutional sale of 
 
 property for taxes 514 
 
 €82. Same — Suit in equity to protect land grant to railroad com- 
 pany, 516 
 
 683. Same — Restraining state officers from executing unconsti- 
 
 tutional statute, 516 
 
 684. Same — Restraining state officers from wrongful administra- 
 
 tion of valid state statutes 517 
 
 685. Same — May arise under any constitutional provision secur- 
 
 ing a right 517 
 
 686. Municipal ordinances as laws "impairing the obligation of 
 
 contracts" — Suits to enjoin', 517 
 
 687. Suits at law arising under the federal constitution, 518 
 
 688. Same — Action of trespass against state officers for seizure 
 
 of property under constitutional state statutes, 518 
 
 689. Same — Same — Barry v. Edmunds, 519 
 
 690. Same— Same — Scott v. Bonald, 520 
 
 '691. Same — Same — Exemplary damages as an element in a case 
 
 arising under the constitution, 521 
 
 692. Same — Suit arising under both the constitution and a fed- 
 
 eral statute, 522 
 
 693. Suits arising under the laws of the United States, 523 
 
 694. Same— Suits on the official bonds of federal officers 524 
 
 695. Same— Same — Suit on bond of United States marshal, 524 
 
 696. Same — Same — Suit on bond of federal court clerk 524 
 
 697. Same — Suit to enforce individual liability of shareholders 
 
 of liquidating national bank, 525 
 
 698. Same — Ejectment when plaintiff's title depends upon valid- 
 
 ity of patent from the United States, 525 
 
 699. Same — Ejectment when plaintiff claims title through judi- 
 
 cial sale under federal court judgment 525 
 
 700. Same — Two corporations claiming same land under differ- 
 
 ent acts of congress 526 
 
 701. Same — Suit to test validity of the consolidation of railroad 
 
 companies under acts of congress 526 
 
 702. Suits by and against federal corporations, 526 
 
 703. Same— Same— Rule abolished as to national banks 527 
 
TABLE OF CONTENTS. XXXlll 
 
 704. Same — Suit against receiver of national bank 527 
 
 705. Same — ^Suit against federal court receiver does not arise un- 
 
 der laws of the United States, 527 
 
 706. Same — Suit against election oflBcers for wrongful denial of 
 
 right to vote for member of congress, 528 
 
 707. Suits arising under treaties of the United States 528 
 
 708. Same — Treaty provisions removing disability of alien to take 
 
 and hold landst 530 
 
 709. Jurisdiction based on diversity of citizenship, 531 
 
 710. Same — Not residence, but citizenship, 531 
 
 711. Same-v-Territories not states within the meaning of the fed- 
 
 eral constitution and judiciary acts, 531 
 
 712. Same — Corporation created by a state a citizen thereof 532 
 
 713. Same — Same — Incorporation in more than one state 532 
 
 714. Same — Citizenship of national banks for purposes of juris- 
 
 diction, 532 
 
 715. Same — ^A state not a citizen, 533 
 
 716. Saxae — Same — Suit brought by state on relation of a party, 533 
 717; Same — Persons standing in a fiduciary relation suing or 
 
 sued, 533 
 
 718. Same — ^Suit by assignee of chose in action 534 
 
 719. Same — Same — Bill for specific performance 535 
 
 720. Same — ^Same — Exceptions — ^Notes of corporations payable to 
 
 bearer, .~ 535 
 
 721. same — Same — Foreign bills of exchange, 535 
 
 722. Same — Same — The fact of assignment 536 
 
 723. Same — Several plaintiffs and defendants 53fe 
 
 724. Jurisdiction of suits between citizens of a state and foreign 
 
 states, citizens or subjects 536 
 
 725. Same — Corporation created by a foreign state a citizen 
 
 thereof, 537 
 
 726. Jurisdiction of suits in which the United States are plain- 
 
 tiffs, 538 
 
 727. Jurisdiction founded on claim to lands under grant of differ- 
 
 ent states 538 
 
 728. The amount in dispute — In what class of cases the jurisdic- 
 
 tional sum or value of two thousand dollars is necessary 
 
 to maintain jurisdiction 538 
 
 729. Same — Rules for determining the amount in dispute, 539 
 
 730. Same — Same — ^Rule when amount is to be determined from 
 
 the face of a pleading 541 
 
 731. Same — Same — Same — Cases justifying exemplary damages, 541 
 
 732. Same — Same — ^Rule when amount is to be determined upon 
 
 an issue of fact, 541 
 
 733. Same — Same — iRule when there are several parties, plain- 
 
 tiffs or defendants, 542 
 
 734. Same — Same — ^When interest is a principal demand, and 
 
 when an accessory demand, 543 
 
XXXIV TABLE OF CONTENTS. 
 
 § 735. Same — The jurisdictional amount not required in ancillary- 
 suits, 544 
 
 736. Jurisdiction once vested is not ousted by subsequent events, 545 
 
 (c) The Common Lavt and Equity Jurisdiction op the Circuit 
 Courts of the United States under Special Statutes. 
 
 737. Suits at common law by the United States or officers thereof, 545 
 
 738. Same — Suits by receivers of national banks, 546 
 
 739. Same — Action of debt on postmaster's bond, 546 
 
 740. Suits at law or in equity arising under the revenue laws, . . 546 
 
 741. Same — Revenue laws defined, 547 
 
 742. Same — Suit in equity to enforce internal revenue tax lien, . . 547 
 
 743. Suits arising underi the postal laws, 547 
 
 744. Same — Suits to recover money wrongfully or fraudulently 
 
 paid out by postoffice department 547 
 
 745. Same— Suits in equity to set aside fraudulent conveyances, 548 
 
 746. Suits for recovery of penalties for violation of laws regulat- 
 
 ing carriage of passengers in merchant vessels, 548 
 
 747. Condemnation of property used in aid of insurrection, 548 
 
 748. Suits arising under laws relating to slave trade, 549 
 
 749. Suits by assignees of debentures 549 
 
 750. Suits arising under the patent laws of the United States, . . . 549 
 
 751. Same — Defined 549 
 
 752. Same — Bill in equity to enjoin infringement, 550 
 
 753. Same — Same — Bill for naked accounting not maintainable, 550 
 
 754. Same — Trespass on the case for infringement, 550 
 
 755. Same — Suits arising out of contracts in relation to patents, 551 
 
 756. Same — Suits to enjoin collection of taxes levied on patent 
 
 rights 551 
 
 757. Suits arising under the copyright laws of the United States, 551 
 
 758. Same — Jurisdiction of district courts in suits to recover 
 
 penalties, 552 
 
 759. Same — Action of debt for penalties, 552 
 
 760. Suits by the United States or officers against national bank- 
 
 ing associations, 552 
 
 761. Suits by national banks to enjoin the comptroller of the cur- 
 
 rency, 552 
 
 762. Suits for injuries done under the revenue laws of the United 
 
 States 553 
 
 763. Suits to enforce the right of citizens to vote 553 
 
 764. Suits to redress deprivation of rights secured by the consti- 
 
 tution and laws of the United States 553 
 
 765. Suits for injuries resulting from conspiracies in violation of 
 
 the "civil rights" act 554 
 
 766. Same — Suits against persons having knowledge of such con- 
 
 spiracies, 554 
 
 767. Suits by and against trustees in bankruptcy, 554 
 
 768. Proceedings by the federal government to condemn private 
 
 property for public use, 555 
 
TABLE OF CONTENTS. XXXV 
 
 I 769. Suits against the government under "the Tucker act," .... 555 
 
 770. Actions of deht for penalties under laws prohibiting impor- 
 
 tation of foreigners under contract, to labor, 556 
 
 771. Jurisdiction of suits under the act to prevent unlawful occu- 
 
 pancy of the public lands 556 
 
 772. Suits for partition when United States are one of tenants, 557 
 
 773. Seizure and destruction of obscene hooks, pictures and other 
 
 articles imported from foreign countries in violation of 
 law, 557 
 
 774. Suits in equity and actions at law arising under the acts of 
 
 congress, to protect trade and commerce against unlawful 
 restraints and monopolies, 557 
 
 775. Same — Suits for injunction can be brought only by the 
 
 United States 558 
 
 776. Same — The damages must be recovered by direct suit and 
 
 not by set-off, 558 
 
 777. Same. — Applies to common carriers by railway — Suits to an- 
 
 nul illegal traffic arrangements, 559 
 
 778. Samei — Same — Consolidation of capital stock of competing 
 
 lines in holding company for purpose of joint control — ' 
 Suit to enjoin, 559 
 
 779. Same — Combinations in restraint of trade among states, in 
 articles of commerce — Injunction, 560 
 
 780. Suits under the act to regulate commerce, 560 
 
 781. Same — Rate-making power vested in the commission — Suits 
 
 to enjoin orders of commission 562 
 
 782. Jurisdiction to naturalize aliens as citizens of the United 
 
 States 563 
 
 783. No jurisdiction in original mandamus proceedings 563 
 
 CHAPTER XVI. 
 
 THE REMOVAL. OF CAUSES. 
 
 784. The removal of causes controlled by judiciary act of March 
 
 3, 1887, as corrected by act of August 13, 1888 — Two ex- 
 ceptions, - "• 565 
 
 785. Removal only a method by which federal courts acquire orig- 
 
 inal jurisdiction of causes 566 
 
 786. Same— State courts not bound to surrender jurisdiction If 
 
 record fails to show removable suit, 567 
 
 787. Same — Federal court may protect its jurisdiction by injunc- 
 
 tion 567 
 
 788. Right of removal limited to suits which could have been 
 
 originally brought in federal court, 568 
 
 789. Same — Classification of suits which may he removed from 
 
 state courts into federal circuit courts, 569 
 
 790. Same — Same — ^AU suits of a civil nature at common law or 
 
 in equity, ■- 570 
 
XXXVl TABLE OF CONTENTS. 
 
 § 791. Same — Same— Same— Illustration — Condemnation proceed- 
 ing 570 
 
 792. Same — The two classes of cases removable under special 
 
 statutes, 570 
 
 793. To what circuit court the removal of the cause Is to be made, 571 
 
 794. Defendants only can remove a cause, 572: 
 
 795. Same — None but non-resident defendants can remove — One 
 
 exception, ^ 572 
 
 796. All defendants required to join in application for removal — 
 
 Exceptions, 573^ 
 
 797. Removal of suits arising under the constitution or laws or 
 
 treaties of the United States 573. 
 
 798. Same — Nature of case must appear from plaintiff's statement 
 
 of his own claim, or it cannot be removed 573^ 
 
 799. Same — Same — When defendant is a federal corporation 574 
 
 800. Same — Same — Suit against receiver appointed by federal 
 
 court not removable, 574 
 
 801. Same — All defendants must join in the application for re>- 
 
 moval, 574 
 
 802. Removal of suits between citizens of different states, 575 
 
 803. Same — Statutory provision 575 
 
 804. Same — When diversity of citizenship must exist, 576 
 
 805. Removal of suits between citizens and aliens 576 
 
 806. Removal on ground of "separable controversy," 576 
 
 807. Same — "Separable Controversy" defined 577 
 
 808. Same — Same — Action of tort against several defendants, . . . 579 
 
 809. Same — Same — Samie — Right of state to regulate action for 
 
 negligence, 579 
 
 810. Same — Removal on this ground carries entire suit 579 
 
 811. Removal on the ground of prejudice or local influence, 580 
 
 812. Same — No removal unless suit could originally have been 
 
 brought in the circuit court, 581 
 
 813. S'ame — None but defendants can remove, 581 
 
 814. Same — Removal not allowed as between def endantSi 581 
 
 815. Same' — Application must be made to federal circuit court — 
 
 When made, 581 
 
 816. Same — Statutory jurisdictional amount must be involved, . . 582 
 
 817. Procedure to remove causes — Petition and bond — When to 
 
 be filed 583 
 
 818. Same — Application must be made when plea is due 584 
 
 819. Same — Same— When suit becomes a removable one after plea 
 
 is due, 584 
 
 820. Same — What petition for removal should state, 585 
 
 821. Same — Issues of fact must be tried in the circuit court, .... 585 
 
 822. Same — ^What citizens of same state claim land, under grants 
 
 of different states 586 
 
 823. Procedure for the removal of causes on the ground of prej- 
 
 udice or local influence 586 
 
 824. Same — Judicial inquiry into the facts, 586 
 
TABLE OF CONTENTS.' XXXvii 
 
 § 825. Remanding causes to the state courts, 58T 
 
 826. Same— Effect of this legislation 588 
 
 827. Same — Remanded because not removed within time allowed 
 
 hy law, 588 
 
 828. Removal of suits against persons denied civil rights, 589 
 
 829. Removal of suits against revenue officers 590 
 
 830. Same — Prosecutions of crimes against the states belong to 
 
 their courts — Exceptions, 590 
 
 CHAPTER XVII. 
 
 THE DISTINCTION BETWEEN LAW AND EQUITY AND LEGAL 
 
 AND EQUITABLE REMEDIES PRESERVED IN 
 
 THE FEDERAL COURTS. 
 
 (a) Statement op the G-enebal Doctkine. 
 
 831. The judicial power of the United States embraces three 
 
 classes of cases, 593 
 
 832. The distinction between law and equity and. legal and equi- 
 
 table remedies established by the constitution, 593 
 
 833. The distinction between legal and equitable remedies is 
 
 one of substance, '. 594 
 
 834. The rule requiring legal and equitable remedies to be sep- . 
 
 arately pursued not changed by federal adoption of state 
 procedure in actions at law, 594 
 
 835. Same — Action of assumpsit or debt on simple contract and 
 
 creditor's bill cannot be blended in one suit In the fed- 
 eral courts, 595 
 
 836. Same — Actions at law cannot be brought in federal equity, 
 
 nor legal and equitable claims blended In one suit, .... 596 
 
 837. Same — Same — Jury summoned to try issues In chancery not 
 
 the equivalent of constitutional right of trial by jury in 
 
 a court of law, .' 596 
 
 838. Same — Same — Bill in equity to remove cloud not malntainr 
 
 able when plaintiff has legal title and defendant is in pos- 
 session, 597 
 
 839. Samei — Same — Same — When the lands are wild and unoccu- 
 
 pied 598 
 
 840. Assignee of chose in action cannot without "special circum- 
 
 stances" sue in equity to collect it, 598 
 
 841. Equity no jurisdiction of a naked accounting of profits and 
 
 damages against infringer of patent, ~. 598 
 
 842. A proceeding to assess damages for taking private property 
 
 for public use cannot be joined with a proceeding to en- 
 join the taking, 599 
 
 843. Federal courts have nO' jurisdiction of a bill in equity In 
 
 cases of fraud to recover damages, 599 
 
 844. Federal courts sitting as courts of law cannot entertain suits 
 
 in equity, 59^ 
 
XXXVIU TABLE OF CONTENTS. 
 
 i 845. Same — Mechanic's lien cannot be enforced in an action at 
 
 law in the federal courts, 600 
 
 846. Same — Suit to enjoin collection of taxes in state of Loui- 
 
 siana 600 
 
 847. Equitable defenses cannot be interposed to actions at law, . . 600 
 
 848. Same — Equitable set-off cannot be interposed as a defense to 
 
 an action at law, 601 
 
 849. Federal courts will enforce new equitable rights created by 
 
 state statutes — Limitation upon the rule, 601 
 
 850. Same — ^T\'h6ther a case is one of common law or equitable 
 
 cognizance determined by its essential character, 603 
 
 ■851. A federal court sitting in equity has no jurisdiction of the 
 
 common law action of assumpsit, 603 
 
 852. Legal defenses to purely legal demands cannot be availed of 
 
 by bill in equity, 603 
 
 853. Same — Bill in equity will not lie to cancel life insurance 
 
 policy for fraud, after death of cestui que vie 604 
 
 854. Same — Action at law on municipal bonds not enjoined on 
 
 ground of fraud, 605 
 
 S55. Same — Action of ejectment not enjoined upon the ground 
 
 that plaintiff's muniments of title are void, 605 
 
 (6) Suits to Recovee Land. 
 
 856. Federal courts have no jurisdiction of suits in equity to re- 
 
 cover land, 606 
 
 857. Same — Ejectment bill not aided by prayer for an account- 
 
 ing, 606 
 
 858. Same — Ejectment bill cannot be maintained upon an equi- 
 
 table title 607 
 
 859. The legal title necessary to maintain the action of eject- 
 
 ment, 607 
 
 ■860. Same — No exception' to the nile at common law — ^Lord Mans>- 
 field's doctrine based upon the presumption that legal es- 
 tate had been conveyed to the equitable owner, 608 
 
 861. Same — Same — Same — Fenn v. Holme 609 
 
 S62. Same — Same — Same — ^Lord Mansfield's doctrine followed in 
 
 the federal courts 609 
 
 :863. Patents issued by the United States are conclusive evidence 
 
 of the legal title, 611 
 
 864. Same — ^Jurisdiction of the land department, 612 
 
 S69. Patents necessary to convey legal title under swamp land 
 
 act of 1850, 612 
 
 866. Exceptions to the rule requiring patent to convey the legal 
 
 title to public lands, 613 
 
 867. Void patents may be collaterally attacked, 614 
 
 868. Ejectment not maintainable on certificates of registers and 
 
 receivers of the government land offices — Statutes of Ar- 
 kansas and Nebraska 615 
 
TABLE OF CONTENTS. XXXIX 
 
 § 869. Mississippi statute declaring that land office certificates shall 
 
 vest legal title — Not binding on Federal courts 615- 
 
 870. Ejectment not maintainable in the Federal courts sitting in. 
 
 California on certificates of land purchase issued by that 
 state, 61& 
 
 871. Ejectment not maintainable in the Federal courts on land 
 
 certificates, location and survey issued and made under 
 
 the laws of Texas, 617 
 
 872. Ejectment maintained, in the Federal courts in Pennsylvania 
 
 on warrant and survey 618 
 
 873. Ejectment maintained in the Federal courts on prior posses- 
 sion, 619 
 
 874. Ejectment mainJtained in the Federal courts on legal title 
 
 by estoppel, 620 
 
 8^5. Plaintiff could not recover in ejectment at common law 
 upon a title which did not subsist in him at the com- 
 mencement of the action 621 
 
 876. Equitable titles cannot be interposed as a defense to the ac- 
 
 tion of ejectment, 621 
 
 877. Same — Title-bond and purchase money paid 622 
 
 878. Same' — Defendant not allowed to prove that patent was is- 
 
 sued through mistake — Bagnell v. Broderick, 622 
 
 879. Same — Defendant not allowed to prove elder patent was 
 
 founded on junior entry — Robinson v. Campbell, 622 
 
 880. Same — Defendant not allowed to show fraudulent survey, . . 623 
 
 881. Equitable estoppel may be set up at law as a defense to an 
 
 action of ejectment, 623 
 
 882. Whatever tolls plaintiff's right of entry will defeat the ac- 
 
 tion of ejectment, 624 
 
 883. Cross bill in equity not maintainable to recover land on a 
 
 legal title, 624 
 
 CHAPTER XVIII. 
 
 SUITS AT COMMON LAW IN THE CIRCUIT COURTS OF THE 
 UNITED STATES. 
 
 884. The primary object of this work, 625 
 
 885. The object of this chapter is to define suits at common law, 626 
 
 886. Same — A knowledge of the scheme of the government essen- 
 
 tial to an understanding of jurisdiction and procedure, . . '627 
 
 887. Same — Principles established in the previous discussion — 
 
 Three classes of cases — Distinction between law and 
 equity, 629 
 
 888. A summary of the common-law jurisdiction of the circuit 
 
 courts, concurrent with the courts of the several states, . . 630 
 
 889. Summary of the common-law jurisdiction of the circuit 
 
 courts under special statutes 631 
 
 890. Standard or rule for the classification of suits as being at 
 
 law or in equity 632 
 
Xl TABLE OF CONTENTS. 
 
 § 891. Suits at common law defined, 638 
 
 892. Same — Embraces all suits to settle legal rights 033 
 
 893. Important features of trial at common law, 633 
 
 894. Classification of suits at common law, 634 
 
 895. Same — Classification of contracts at common law, . '. 634 
 
 898. Actions at law are local or transitory, 635 
 
 897. Same — Distinction preserved in the federal courts, 636 
 
 898. Parties to actions at law, 636 
 
 899. Same — Parties to actions on contracts, 637 
 
 900. Same — ^Parties to actions ex delicto, 637 
 
 901. The common-law action of account, 638 
 
 902. Same — Concurrent jurisdiction in equity, 639 
 
 903. Annuity 639 
 
 904. Assumpsit, 639 
 
 905. Same — The great common-law action, 641 
 
 906. Covenant, 642 
 
 907. Debt, 642 
 
 908. Detinue 642 
 
 909. Same — Peculiar nature of the action, 643 
 
 910. Trespass vi et armis 643 
 
 911. Trespass on the case, 644 
 
 912. Same — Defined by Tidd 644 
 
 913. Same — ^Action under Lord Campbell's Act, _ 645 
 
 914. Trover 646 
 
 915. Replevin, 646 
 
 916. Ejectment : 647 
 
 917. Action for mesne profits 647 
 
 918. Scire facias, 648 
 
 919. Same — Authority of federal courts to issue, 648 
 
 920. Proceedings to condemn property for public use, 648 
 
 CHAPTER XIX. 
 
 THE BASIS OF PROCEDURE IN SUITS AT COMMON LAW IN THE 
 CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES 
 —LIMITATIONS UPON THE OPERATION OF "THE ACT OF 
 CONFORMITY." 
 
 921. The complex basis of federal procedure at law, 651 
 
 922. Same — Common law principles confirmed in the federal con- 
 
 stitution 651 
 
 923. The conformity act — Its language, 652 
 
 924. Same — The act restricted in its operation — Popular error con- 
 
 cerning it, 653 
 
 925. Same — Must be construed in the light of the federal constitu- 
 
 tion and laws, 653 
 
 926. Same — Power of the federal courts to reject subordinate pro- 
 
 visions of state procedure — "As near as may be," 654 
 
 927. Same — Purpose of the act 654 
 
TABLE OF CONTENTS. xll 
 
 "928. Same — Act applies "in like causes" only 655 
 
 929. The personal administration of the judges not controlled by 
 
 state procedure '. 655 
 
 930; When federal courts will not conform to state procedure — 
 
 General rule, 656 
 
 931. Same — When state procedure blends legal and equitable rem- 
 
 edies, : 656 
 
 932. Same — Same — When state procedure permits legal actions 
 
 upon equitable titles 657 
 
 933. When congress has legislated upon a matter of procedure, . . 657 
 
 934. Service of process and appearance not controlled by state 
 
 laws, 657 
 
 •935. When the state procedure would defeat the lawfully-acquired 
 
 jurisdiction of the court, 658 
 
 936. Mode of trial not controlled by state legislation 658 
 
 937. The mode of proof controlled by federal legislation, 659 
 
 938. Same — ^Production of documentary evidence 660 
 
 939. Manner of instructing the jury — Submitting special issues 
 
 — State procedure not binding on federal courts, , 661 
 
 940. Jury carrying with them written evidence upon retiring from 
 
 the bar 661 
 
 941. Departure in pleading under code procedure defined by the 
 
 common law, ' 661 
 
 942. Execution of judgments controlled by state law — ^When and 
 
 how adopted 662 
 
 943. Same — "Proceedings supplementary to execution," 664 
 
 944. Refusing or granting new trial not controlled by state pro- 
 
 cedure, 664 
 
 945. Preparing case for review on writ of error by appellate court 
 
 not controlled by state procedure, 665 
 
 .946. State procedure obligatory on federal courts — Subject to the 
 
 above exceptions, 665 
 
 CHAPTER XX. 
 
 THE VEJNUE OF SUITS IN THE CIRCUIT COURTS OF THE 
 UNITED STATES. 
 
 "947. Suits are local or transitory, 667 
 
 948. The venue of suits in the federal courts regulated by fed- 
 eral statute, 668 
 
 ■949. Suit must be brought in the state of which the defendant is 
 a citizen and in the district whereof he is an inhabitant — 
 
 General rule — Exceptions, 668 
 
 950. Same — Citizenship and residence of corporations 669 
 
 "951. Venue when the jurisdiction is founded on the diversity of 
 
 the citizenship of the parties, 669 
 
 / 
 
Xlil TABLE OF CONTENTS. 
 
 § 952. Same — When there are more plaintiffs or defendants than 
 
 one, 670 
 
 953. Same — Suits against national banks, '670 
 
 954. Venue of suits against aliens and alien corporations, 671 
 
 955. Venue of local suits, 671 
 
 956. Same — Not necessary that plaintiff or defendant shall be an 
 
 inhabitant of the district where suit is brought 672 
 
 957. Same — Suit to remove cloud from shares of stock in a cor- 
 
 poration, 672 
 
 958. Same — Trespass quare clausum fr^git, 672 
 
 959. Special acts regulating venue in particular districts, 673 
 
 960. Venue of suits of which federal courts have exclusive juris- 
 
 diction not controlled by general judiciary act, 674 
 
 961. Same — Venue of suits for infringement of letters patent, . . . 675 
 
 962. Same — ^Venue of suits under federal statute to protect com- 
 
 merce, 675 
 
 963. Same — Venue of actions for damages under the federal anti- 
 
 trust act — Where defendant resides or is found, 676 
 
 964. Vendue of suits for pecuniary penalties' and forfeitures, 676 
 
 965. Venue of suits for internal revenue taxes, 676 
 
 966. Venue of suits by national banks to enjoin comptroller of the 
 
 currency, 676 
 
 CHAPTER XXI. 
 
 PARTIES TO SUITS AT COMMON LAW IN THE. CIRCUIT COURTS 
 OF THE UNITED STATES. 
 
 967. The subject of parties controlled by state legislation — Gen- 
 
 eral rule, 677 
 
 968. Same — Limitations upon the rule, 678 
 
 969. Same — Same — Actions at law must be brought in the name 
 
 of the party holding the legal title, 679 
 
 910. Same — Same — Actions at law must be brought against the 
 
 party legally liable to plaintiff 679 
 
 971. Same — Federal statute authorizing omission of parties de- 
 
 fendant under certain contingencies, 680 
 
 972. Subject of parties controlled by tihe rules of the common 
 
 law— When, 681 
 
 973. Parties to suits for duties, imposts, taxes, penalties, and for- 
 
 feitures, 681 
 
 974. Death of parties' — Scire facias to bring in executor or admin- 
 
 istrator 681 
 
 975. Same — When one of several plaintiffs or defendants dies, . . . 682 
 
 976. Death or expiration of term of public officer who is a party 
 
 to a suit, 682 
 
TABLE OP CONTENTS. ^ Xliii 
 
 CHAPTER XXII. 
 
 THE STATE SYSTEM OF PUSADING FOLiLOWED IN THE FED- 
 BRAli COURTS IN SUITS AT COMMON LAW— IMPORTANT 
 
 EXCEPTIONS. , i 
 
 i' I 
 
 § 977. State system of pleading adopted in the federal courts In 
 
 ■suits at common law 683 
 
 978. A summary of the limitations upon the rule that the fed- 
 
 eral courts are required to follow the state system of 
 pleading, 684 
 
 979. Same — Equitable set-off and equitahle counter-claim, 685 
 
 980. Reason and foundation of the rule limiting conformity to 
 
 the state system of pleading, , 685 
 
 CHAPTER XXIII. 
 
 PLAINTIFF'S DECLARATION, COMPLAINT OR PETITION IN A 
 
 SUIT AT COMMON LAW IN THE CIRCUIT COURTS OF THE 
 
 UNITED STATES. 
 
 981. The commencement of an action at law in the federal cir- 
 
 cuit courts, 687 
 
 982. The declaration, complaint or petition should conform to 
 
 the laws of the state, '688 
 
 983. The general requisites of the declaration, complaint or pe- 
 
 tition, €89 
 
 984. The three essential elements of the body of the declaration, 
 
 complaint or petition, 689 
 
 985. The declaration, complaint or petition m,ust state a cause 
 
 ■of action within the jurisdiction of a court of law, 689 
 
 986. Same — ^Must state a case upon which a court of common 
 
 law has jurisdiction to render and execute judgment, . . 690 
 
 987. Joinder of causes of action at common law — ^Actions ex 
 
 contractu 691 
 
 988. Same — Actions ex delicto, 691 
 
 989. Sarnie — Same — ^Exception to rule last stated, 692 
 
 990. Same — Same — Action against master and servant, 692 
 
 991. Same — Causes of action ex contractu and ex delicto cannot 
 
 be joined, 693 
 
 992. Same — Same — Exception — Debt and detinue, 693 
 
 '993. Same — All causes joined must be in the same right 693 
 
 994. Same — Counts in trespass quare clausum. fregit and de 6o- 
 
 nis asportatis may be joined, 694 
 
 995. Same — Counts in trespass quare clausum fregit and for as- 
 
 sault and battery may be joined, 695 
 
 996. Saiine — Counts for false warranty and! deceit may be joined, 695 
 
 997. Same — Duplicity, , 695 
 
 d 
 
Xliv TABLE OF CONTENTS. 
 
 § 998. Same — Joinder under code procedure, 696 
 
 999. Same — Same — Joinder of legal and equitable causes of ac- 
 
 tion, 696 
 
 1000. Same— Same — Death by wrongful act, 696 
 
 1001. Stating plaintiff's cause of action — Conformity to state 
 
 pleading ". 697 
 
 1002. The jurisdictional facts must be alleged, 698 
 
 CHAPTER XXIV. 
 
 PROCESS, SERVICE AND RETURN IN SUITS AT COMMON LAW 
 IN THE CIRCUIT COURTS OP THE UNITED STATES. 
 
 1003. Necessity for service of original process upon defendant, 701 
 
 1004. Federal statutory requisites of the process for defendant, 703 
 
 1005. Same — Same — Power of the circuit and district courts to 
 
 make rules controlling process, 703 
 
 1006. Process served by the marshal, 704 
 
 1007. Service of process in personal action on a money demand, 704 
 
 1008. Same — Service on foreign corporation, 705 
 
 1009. Same — Service upon aliens and alien corporations, 707 
 
 1010. Service in local suits where defendant resides in a district 
 
 different from that in which the suit is brought, 707 
 
 1011. Same — Substituted service upon non-resident defendants, 707 
 
 1012. Return of the process, 708 
 
 1013. Persons privileged from the service of process, 708 
 
 CHAPTER XXV. 
 
 THE APPEARANCE OP THE DEPENDANT IN SUITS AT COMMON 
 LAW IN THE CIRCUIT COURTS OP THE UNITED STATES. 
 
 1014. Two methods of obtaining jurisdiction over person of the 
 
 defendant 709 
 
 1015. Appearance at common law, 709 
 
 1016. Two kinds of appearances in federal procedure — General 
 
 and special — Same at common law, 710 
 
 1017. General appearance defined — Its effect 710 
 
 1018. What constitutes a general appearance, 711 
 
 1019. A general appearance cannot be withdrawn without leave 
 
 of court, 711 
 
 1020. Special appearance defined, 712 
 
 1021. Same — A state statute giving to a special appearance the 
 
 effect of a general appearance not binding on the fed- 
 eral courts, 713 
 
 1022. A petition for removal is a special appearance only, .... 713 
 
 1023. Absence of jurisdiction over subject-matter not waived by 
 
 general appearance,' 714 
 
 1024. Parties may appear by themselves or attorneys, 715 
 
TABLE OF CONTENTS. , xlv 
 
 CHAPTER XXVI. 
 
 THE DEFENSES OP DEFENDANT IN A SUIT AT COMMON LAW 
 IN THE CIRCUIT COUR.TS OF THE UNITED STATES. 
 
 § 1025. Preparing the defense 716 
 
 1026. Classification of defenses to suits at law 717 
 
 1027. Same — Plea in suspension of the suit 717 
 
 102S. Same — These defenses exist in two forms, 717 
 
 1029. Defenses to the jurisdiction are of two classes, 718 
 
 1030. Pleas In abatement, 719 
 
 1031. Plea in bar defined, 719 
 
 1032. Classification of pleas in bar, 719 
 
 1033. Form and order of pleading the three defenses — Common 
 
 law procedure — Code procedure, 720 
 
 1034. Defendant's defense must conform to state procedure — 
 
 Important exception, 721 
 
 1035. Same — Plea to jurisdiction over person separately pre- 
 
 sented — Illustration, 722 
 
 1036. Same— Same — Coupled with a demurrer to the merits, 724 
 
 1037. Plea denying jurisdiction of subject matter presented in 
 
 general answer, 724 
 
 1038. Equitable defenses cannot be pleaded to actions at law, 725 
 
 1039. Resume, 726 
 
 1040. Cross-demands in actions at law available in federal cir- 
 
 cuit courts, 726 
 
 1041. Equitable cross-demands cannot be pleaded in an action 
 
 at law, 727 
 
 CHAPTER XXVII. 
 
 INTERVENTIONS IN SUITS AT COMMON KAW IN THE CIRCUIT 
 COURTS OF THE UNITED STATES. 
 
 1042. The remedy by intervention unknown at common law, . . 728 
 
 1043. The remedy by intervention available in actions at law in 
 
 the federal circuit courts, 729 
 
 1044. Intervention cannot be used to blend legal and equitable 
 
 remedies, 729 
 
 CHAPTER XXVIII. 
 
 AMENDMENTS OF PLEADINGS AND PROCESS IN SUITS AT COM^ 
 
 MON LAW, IN THE CIRCUIT COURTS OF THE UNITED 
 
 STATES. 
 
 1045. Court's power of amendment controlled by federal statute, 730 
 
 1046. Extent of the power to allow amendments, 730 
 
Xlvi TABLE OF CONTENTS. 
 
 § 1047. Amendment of process 731 
 
 1048. Allowance of amendments discretionary, ." 731 
 
 1049. Amendment after reversal by the supreme court, 732 
 
 CHAPTER XXIX. 
 
 TRIAL OF SUITS AT COMMON LAW IN THE CIRCUIT COURTS 
 OF THE UNITED STATES. 
 
 1050. Two modes for the trial of issues of fact, 735 
 
 1051. Same— All material issues of fact, 73& 
 
 1052. State law authorizing trial by referee not followed in fed- 
 
 eral courts, 736 
 
 1053. Mode of trying the issue of jurisdiction, 737 
 
 (a) Tkiai, by Jury. 
 
 1054. Must be a trial by a common law jury and a common law 
 
 jury trial, 737 
 
 1055. Qualifications of jurors, 738 
 
 1056. Same — Certain persons disqualified to serve in suits aris- 
 
 ing under the "Civil Rights" act ,739' 
 
 1057. Jurors apportioned to district by direction of the court, 739 
 
 1058. How jurors are drawn, , 739 
 
 1059. Mileage and per diem of jurors, 740- 
 
 1060. Writs of Venire Facias — How issued and served 740 
 
 1061. Talesmen for petit jurors, 740 
 
 1062. Sanae — Provisions of revised statutes as to talesmen not 
 
 repealed, 741 
 
 1063. Special jurors, 741 
 
 1064. Each party entitled to three peremptory challenges in 
 
 civil cases, 741 
 
 1065. Same — Challenges are of two kinds 742 
 
 1065a. Challenges should be specific, .• 742 
 
 1066. Impaneling the jury — Mode of procedure 743 
 
 1067. Stating the issues of fact to the court and jury, 743 
 
 1068. State rules of evidence control in federal courts 744 
 
 1069. Competency of witnesses — State law controls, 745 
 
 1070. S'ubpoenas for witnesses — One hundred mile limit, 745 
 
 1071. Witnesses must testify orally in open court — Exceptions — 
 
 Controlled exclusively by federal statutes, '. 745 
 
 1072. ISame — ^Depositions de bene esse cannot be read if presence 
 
 of witness can be procured 748 
 
 1073. Mode of taking depositions de bene esse — Either federal or 
 
 state statutes may be followed, 748- 
 
 1074. Motions to suppress depositions — Should be opportunely 
 
 made, 748 
 
 1075. Surgical examination of plaintiff in personal injury suits 
 
 without his consent, 749 
 
 1076. Same — Surgical examination does not contravene rule re- 
 
 quiring oral testimony In open court, 750 
 
TABLE OP CONTENTS. xlvii 
 
 I 1077. Cross-examination of witnesses confined to matters of di- 
 rect examination — Exceptions to the rule 750 
 
 1078. Documentary evidence — Legislation of congress, 751 
 
 1079. Statutory power of federal courts to compel production of 
 
 books and writings in evidence in trials at law, 751 
 
 1080. Same — The requisite procedure to obtain the order for pro- 
 
 duction 752 
 
 108L Same — Shall the production be at or before trial? 753 
 
 1082. Same — Limitations upon the power to compel production, 753 
 
 1083. Same — Same — Immunity statutes, 754 
 
 1084. Subpcena duces temim — Power of federal courts to issuei, ^54 
 
 1085. Same — Same — To obtain original papers in the general 
 
 land office, ' 755 
 
 1086. Introduction of evidence — Order of proof, : 756 
 
 1087. Objections to the admission of evidence — ^Must be specific, 756 
 
 1088. Same — Objections not specified are waived 757 
 
 1089. Same — When the objection should be made, 758 
 
 1090. Dem;irrer to the evidence, 759 
 
 1091. Province of court and jury, respectively, in trials at com- 
 
 mon law, 760 
 
 1092. The court not controlled by state constitutions and laws as 
 
 to the manner of instructing juries 761 
 
 1093. Duty of the court to submit all issues of fact to the jury, 762 
 
 1094. Duty of the court to charge the law of the whole case, . . 763 
 
 1095. Requested instructions — Sound and erroneous proposi- 
 
 tions asked in the aggregate, 763 
 
 1096. Court not required to submit special issues to the jury, 764 
 
 1097. Peremptory instructions, 764 
 
 1098. Same — ^Existence of negligence or contributory negligence 
 
 a question for the jury, ■ 784 
 
 1099. Same — Motion for peremptory instruction should not be 
 
 made till evidence closes 765 
 
 1100. Duty of federal courts to give in charge the law of the 
 
 state to the jury, .765 
 
 1101. Same — Must maintain the supremacy of the federal con>- 
 
 stitution, 766 
 
 1102. Withdrawal of the jury from the bar to deliberate upon 
 
 their verdict, 767 
 
 1103. The verdict of the jury — ^Either general or special, 768 
 
 1104. Same — Special verdict, defined and practice on it stated, 769 
 
 1105. Same — Same — Distinction between a special verdict at 
 
 common law, and special issues under state statutes, . . 770 
 
 HOG. Same — A "special case" defined, 771 
 
 1107. Same — Same— "Special Case" and "Agreed Case" recog- 
 
 nized as proper procedure in the federal courts, 772 
 
 1108. The verdict must find all the material issues of fact, 773 
 
 1109. Same — The federal rule accords with the common law 
 
 rule 774 
 
 1110. The legal effect of verdicts determined by state law, .... 774 
 
xlviii TABLE OF CONTENTS. 
 
 § 1111. Writs of inquiry 775 
 
 1112. Amending the verdict, 776 
 
 1113. Same — "Manifest intent of the jury," "TTT 
 
 1114. Defects cured by verdicts-Common law rule, 777 
 
 1115. Motion in arrest of judgment, 778 
 
 1116. Motions for judgment non obstante verdicto, and repleader 
 
 —Distinction, 778 
 
 1117. New trials — ^Authority of the federal courts to grant, 779 
 
 1118. Same — Not controlled by rules of state procedure 780 
 
 1119. Same — Same — ^When state law gives new trial in eject- 
 
 ment 780 
 
 1120. Same — It is a matter of right to make a motion for a new 
 
 trial 781 
 
 1121. Same — Granting or refusing rests in discretion of the trial 
 
 court 782 
 
 1122. Same — When the motion for new trial must be filed 782 
 
 1123. Same — Reasons for granting new trial, 783 
 
 1124.' The judgment — Controlled by state laws 783 
 
 1125. Same — Lien of judgments of the United States courts, .... 784 
 
 1126. Same — Federal court clerks to keep index of judgments, . . 785 
 
 1127. Execution — State remedies in force on December 1, A. D. 
 
 1873 — State remedies subsequently adopted by federal 
 
 courts, 785 
 
 1128. Same — Executions to run in all districts of a state, 786 
 
 (t)) Tbiax by the Couet Without the Inteevention of a Juet. 
 
 1129. Procedure in trials by the court 786 
 
 1130. Same — Analysis of the procedure, 787 
 
 1131. The stipulation waiving a jury, 788 
 
 1132. What questions of law may be raised on the trial and re- 
 
 viewed on writ of error, ' 789 
 
 1133. Same — Obiter dictum of Mr. Justice Bradley, 791 
 
 1134. The practice and procedure stated by Mr. Justice Miller, . . 791 
 
 1135. Requisites of a special finding by the court 792 
 
 1136. The special finding should be "spread at large upon the 
 
 record," 793 
 
 1137. Nonsuit upon the trial 794 
 
 CHAPTER XXX. 
 
 BILLS OP EXCEPTIONS TAKEN TO THE DECISIONS AND RUL- 
 INGS OP THE COURT UPON THE TRIAL OP SUITS AT COM- 
 MON LAW IN THE CIRCUIT COURTS OP THE UNITED 
 STATES. 
 
 1138. Bills of exceptions defined 793 
 
 1139. Preparing the cause for review upon writ of error, 797 
 
 1140 Rulings upon the trial must be excepted to at the time 
 
 they are made, 798 
 
TABLE OP CONTENTS. xlix 
 
 § 1141. Errors apparent upon the record, not requiring a bill of 
 
 exceptions 800 
 
 1142. Bills of exceptions to the admission: of evidence, 801 
 
 1143. Bills of exception to the exclusion of evidence 801 
 
 1144. Exceptions to the ruling of the court in giving and refus- 
 
 ing instructions to the jury — ^When taken 802 
 
 1145. Exceptions to the court's charge must be specific — Counsel 
 
 must except "Distinctly and Severally," 804 
 
 1146. Requested charges — ^When the general charge of the court 
 
 covers the entire case, 806 
 
 1147. Same — A series of instructions presented as one request, . . 806 
 
 1148. Same — Exception to the portion of the court's charge 
 
 which is variant from requested charge 807 
 
 1149. Bills of exception taken to the rulings of the court in giv- 
 
 ing and refusing Instructions — ^What to contain, 807 
 
 1150'. Same — Same — Supreme court rule, 808 
 
 1151. Same — How much of the evidence should be set out in 
 
 bill of exceptionsi — General rule, 809 
 
 1152. Authentication of bills of exceptions, 809 
 
 1153. Mandamus to compel the trial judge to settle and sign a 
 
 bill of exceptions 810 
 
 1154. Order giving time to prepare a bill of exceptions, 810 
 
 CHAPTER XXXI. 
 
 THE WRIT OP ERROR FOR THE REVIEW OF THE FINAL JUDG- 
 MENTS OF THE CIRCUIT COURTS OF THE UNITED STATES 
 IN SUITS AT COMMON LAW. 
 
 1155. Judgments in suits at common law reviewed upon writ of 
 
 error only, 811 
 
 1156. Application for the writ 812 
 
 1157. When and by what judges allowed, 812 
 
 1158. By what clerks issued, 812 
 
 1159. Service of the writ of error 813 
 
 1160. Return of the writ of error, 813 
 
 1161. Service of citation in error — Return 813 
 
 1162. Time within which writ of error must be sued out, 813 
 
 1163. Reference to a discussion of writs of error in a previous 
 
 chapter, 814 
 
TABLE OF CASES CITED. 
 
 [references are to pages.] 
 
 A. 
 
 .Abeel v. Culberson, 498. 
 Ableman v. Booth, 8, 12, 13, 15, 
 
 43', 47, 144, 146, 147, 316, 324- 
 
 328, 330, 333, 343, 365, 366, 478, 
 
 627, 813. 
 -Acadia, The, 440, 445. 
 Accident Ins. Co. v. Crandal, 765. 
 Adams V. Church, 346, 347. 
 -Adams v. New York, 242, 243. 
 _A.dams V. Railroad Co., 167, 168. 
 Adams V. Woods, 465. 
 Adams County v. Burlington & M. 
 
 R. R. Co., 358. 
 Adams Eixpress Co. v. Kentucky, 
 
 152. 
 Adams Express Co. v. Ohio State 
 
 Auditor, 44, 152, 153, 271. 
 Addyston Pipe & Steel Co. v. 
 
 United States. 174, 225, 558, 560. 
 -Adeline, The, 416. 
 Aetna Life Ins. Co. v. Smith, 604. 
 Alabama v. Georgia, 329, 337. 
 Alabama, The, 436. 
 .Alabama Southern Ry. Co. v. 
 
 Thompson, 578, 579, 681, 692. 
 Albany and Renesselaer Iron & 
 
 Steel Co. V. Lundberg, 666, 677, 
 
 678. 
 .Albert Dumois, The, 455, 456. 
 Albright v. Teas, 551. 
 -Alderson v. Dole, 603. 
 Aldrich v. Campbell, 332, 467, 545, 
 
 546. 
 Alkan v. Bean, 547. 
 .Allen V. Argimbau, 357, 359. 
 
 Allen V. Baltimore & Ohio R. R. 
 Co., 510, 511, 513-515. 
 
 Allen V. Blount, 708. 
 
 Allen V; Massey, 59. 
 
 Allen V. Rivington, 619. 
 
 Allen V. Seawall, 623. 
 
 Allen V. Southern Pac. R. Co., 376, 
 813. 
 
 Allen V. Staples, 90. 
 
 Alley V. Nott, 582. 
 
 Allgeyer v. Louisiana, 224, 225. 
 
 Ailing V. Shelton, 372. 
 
 Alzena, The, 445. 
 
 Ambler v. Choteau, 599. 
 
 Ambrose Light, The, 418. 
 
 American Colortype Co. v. Conti- 
 nental Colortype Co., 535. 
 
 American Const. Co. v. Jackson- 
 ville, Tampa & Key West Ry. 
 Co., 321, 400, 401. 
 
 American Ins. Co. v. Canter, 212, 
 213. 
 
 American Ins. Co. v. 356 Bales 
 Cotton, 146, 148. 
 
 American Mortgage Co. v. Hop- 
 per, 619. 
 
 American Steel & Wire Co. v. 
 Speed, 299, 300. 
 
 American Sugar Refining Co. v. 
 Louisiaina, 270, 271. 
 
 American Union Tel. Co. v. Mid- 
 dleton, 636. 
 
 Ames V. Kansas, 335, 506, 508, 
 523, 526. 
 
 Amey v. Long, 755. 
 
 Amiable Nancy, The, 458, 
 
 Amory v. Amory, 585. 
 
lii 
 
 TABLE OF CASES CITED. 
 
 [references are to pages.] 
 
 Amoskeag Nat. Bank v. Ottawa, 
 
 44. 
 Amy V? City of Watertown, 666. 
 Amy V. Dubuque, 44, 58. 
 Andersen v. Treat, 392. 
 Anderson v. Jett, 173. 
 Anderson v. Santa Anna, 63. 
 Anderson County Comrs. Vi. Beal, 
 
 764. 
 Andes v. Ely, 535. 
 Andrews v. Hall, 440. 
 Andrews v. Swartz, 384. 
 Andrews v. Wall, 433, 452. ' 
 Andrews, Ex parte, 163. 
 Anglo-American Land, Mortgage 
 
 & Agency Co., Limited, v. Lom- 
 bard, 793. 
 Anne, The, 208. 
 Anthony v. Louisville & N. R. Co., 
 
 783. 
 Antoni v. Greenhow, 2, 513. 
 Appleyard v. Massachusetts, 390. 
 Appollon, The, 451. 
 Arbucker v. Blackburn, 504, 507. 
 Arkansas v. Kansas & T. Coal 
 
 Co., 504, 506, 533, 569, 570, 573, 
 
 574. 
 Arkansas Valley Smelting Co. v. 
 
 Belden Mining Co., 677. 
 Armstrong v. Ettlesohn, 332, 467, 
 
 545, 546. 
 Armstrong v. Trautman, 546. 
 Armstrong v. Treasurer of Athens 
 
 County, 344, 354. 
 Armstrong Foundry v. United 
 
 States, 471, 549. 
 Arndt v. Griggs, 671, 708. 
 Arnett v. Evans, 640. 
 Arnett v. McCain, 372. 
 Arnold v. Maudlin, 695. 
 Arnot V. Pillston & B. Coal Co., 
 
 173. I 
 
 Arthur v. Dodge, 474. 
 Arthurs v. Hart, 801, 
 Arturo, The, 445. 
 Ashley v. Peterson, 90. 
 Association v. Niezerowski, 173. 
 
 Assurance Co. v. Mayer, 760. 
 Atchison, Topeka & S. F. R. Co. 
 
 V. Matthews, 264, 265, 267, 346, 
 
 349. 
 Atherton v. Fowler, 348, 363, 367, 
 
 619. 
 Atherton Match Co. v. Atwood- 
 
 Morris Co., 550. 
 Atkin V. Kansas, 162, 224, 225. 
 Atkins V. Dlsintergrating Co., 458. 
 Atkyns v. Horde, 624. 
 Atlanta v. Chattanoogo Foundry 
 
 & C. Co., 558. 
 Atlantic & C. Pae. R. CO. v. Laird,. 
 
 662, 697. 
 Atlantic & Pacific Tel. Co. v. City 
 
 of Philadelphia, 152, 173. 
 Atlantic Coast Line R. Co. v. 
 
 North Carolina Corp. Com., 163; 
 
 166, 249, 517. 
 Atlantic, The, 444. 
 Atlas, The, 441. 
 Atlee V. Northwestern Packet Cow 
 
 454. 
 Atty. Gen. v. Detroit, 212. 
 Augier v. Stannard, 608, 610. 
 Aurora, The Brig, 19. 
 Auten V. Bank, 502, 508, 527.. 
 Avon, The, 425, 441. 
 Ayers v. "Watson, 589, 763. 
 Ayers v. Wiswall, 578. 
 
 B. 
 
 Bachrack v. Norton, 502, 508, 524. 
 
 Backus V. Fort Street Union De- 
 pot Co., 245. 
 
 Backus v. Gould, 551, 552. 
 
 Bacon v. Hart, 370. 
 
 Bacon v. Insurance Co., 493. 
 
 Bacon v. Northwestern Mut. L. 
 Ins. Co., 44. 
 
 Bacon v. Texas, 297, 362, 363. 
 
 Bacon v. United States, 243. 
 
 Bagnell v. Broderick, 594, 601, 
 611, 612, 616, 621, 622, 628, 725. 
 
 Bailey v. Bussing, G92. 
 
TABLE OF CASES. 
 
 liii 
 
 [references are to pages.] 
 
 Bailey v. Maguire, 56. 
 
 Bain, Ex parte, 86, 88, 102, 104, 
 
 105. 
 Baines r. The James, 444. 
 Baiz, Ex parte, 475. 
 Baiz, Re, 207, 208, 393, 396. 
 Balier v. Dumbolton, 691. 
 Baker v. Norwood, 246. 
 Baldwin v. Franks, 282. 
 Balkam v. Woodstock Iron Co., 58. 
 Ball V. United States, 116-118. 
 Balle-vsr y. United States, 118. 
 Ballu V. Nebraska, 179. 
 Baltimore & Potomac Railroad 
 
 Co. V. Hopkins, 349, 355. 
 Baltimore & Ohio R. Co. v. Baugh, 
 
 54, 60. 
 Baltimore* Ohio R. Co. v. Joy, 
 
 646. 
 Baltimore & Ohio R. Co. v. Koontz, 
 
 567. 
 Baltimore & S. R. R. Co. v. Nes- 
 
 hit, 121. 
 Baltimore R. Co. v. Ford, 498. 
 Banchard v. Sprague, 551. 
 Bank v. Belleville, 788i. 
 Bank v. Billings, 291. 
 Bank v. Buckingham, 297. 
 Bank V. Cooper, 527. 
 Bank v. Crine, 601, 621. 
 Bank v. Dalton, 44. 
 Bank v. Dearing, 1.7. 
 Bank v. Grand Lodge of Masons, 
 
 679-681. 
 Bank v. Halstead, 497. 
 Bank v. Harrison, 332. 
 Bank v. Kelly, 51, 64. 
 Bank v. Knoop, 286, 288, 290. 
 Bank v. Morgan, 710, 711. 
 Bank v. Pennsylvania. 256. 
 Bank V. Ohio, 291. 
 Bank v. Ottawa, 55. 
 Bank V. Seton, 749. 
 Bank v. Sharp, 510. 
 Bank v. Skelly, 55, 286, 291. 
 Bank v. Smith, 759, 812. 
 Bank V, Sprague- 59. 
 
 Bank v. Stevens, 495. 
 Bank v. Thomas, 291, 296. 
 Bank v. United States, 492. 
 Bank v. Weems, 729. 
 Bank v. Yankton Co., 148, 
 Bank of Augusta v. Barle, 43. 
 Bank of Columbia v. Patterson, 
 
 640. 
 Bank of Columbia v. Okely, 83. 
 Bank of Hamilton v. Dudley, 659. 
 Bank of the United States v. Dan- 
 iel, 536. 
 Banning v. Taylor, 84. 
 Bannon v. United States, 105, 106.. 
 Barbier v. Connolly, 38, 157, 158, 
 
 189, 232, 282. 
 Bardon v. Land & R. Imp. Co., 44, 
 
 58. 
 Barge Jennie Lind, The, 447. 
 Bark Reindeer, The, 456. 
 Barnard v. Adams, 448. 
 Barnes v. Williams, 736, 762, 769, 
 
 770, 773. 
 Barnet v. People, 114. 
 Barney v. Baltimore, 532. 
 Barney v. Latham, 578, 580. 
 Barnitz v. Beverly, 2, 291, 293, 
 
 294. 
 Barnwell v. Barnwell, 607. 
 Barreda v. Silsbee, 130. 
 Barren v. Tilton, 67T. 
 Barrett v, Andrews, 211. 
 Barrett v. United States, 109, 110.. 
 Barriere v. Nairac, 778. 
 Barron v. Baltimore, 70, 186. 
 Barroum v. Culmell, 617, 618, 621. 
 Barrow Steamship Co. v. Kane,, 
 
 537, 671, 707. 
 Barry V. Edmunds, 507, 508, 510, 
 511, 513, 518, 519, 522, 541, 542, 
 767. 
 Barry, Ebc parte, 382. 
 Bartemeyer v. Iowa, 158, 231, 364, 
 
 369. 
 Bartlett v. Lockwood, 345, 349. 
 Barton v. Brown, 439. 
 Barton v. Forsyth, 800, 803. 
 
liy 
 
 TABLE OF CASES CITED. 
 
 [BEFEEENCES ABE TO PAGES.] 
 
 Batt V. Proctor, 708. 
 
 Baugham v. Gratiam, 758. 
 
 Bauman v. Ross, 257, 259. 
 
 Bauserman v. Blount, 44, 58. 
 
 Bausman. v. Dixon, 528. 
 
 Bayard v. Lombard, 372. 
 
 B. & L. Asso. V. Brahan, 57. 
 
 Beaureguard v. New Orleans, 43, 
 51, 58, 493. 
 
 Bearer t. Taylor, 764, 805, 807. 
 
 Beazley v. Prentiss, 372. 
 
 Beckwlth v. Bean, 805. 
 
 Bedford v. Eastern Bldg. & L. 
 Ass'n, 285,. 
 
 Bedford v. Nashville, 2!75. 
 
 Bedgood v. State, 94. 
 
 Beebees, Ex parte, 745. 
 
 Belfast, The, 33, 420, 421, 426, 430, 
 431, 440, 442, 451. 
 
 Belgenland, The, 409. 
 
 Belk V. Meagher, 619, 757, 758. 
 
 Bell V. Clapp, 90. 
 
 Bellaire v. Baltimore & Ohio B. 
 Co., 578. 
 
 Bellingham Bay & British Colum- 
 bia R. R. Co. V. City of New 
 Whatcom, 253, 254, 256, 257. 
 
 Bell's Gap R. Co. v. Pennsylvania, 
 253, 260, 270. 
 
 Benefactor, The, 412. 
 
 Benner v. Porter, 14, 329, 485. 
 
 Bennett v. Butterworth, 127, 593- 
 596, 626, 628, 633, 651, 657, 678, 
 690. 
 
 Benney v. Canal Co., 621. 
 
 Bergmann v. Backus, 389. 
 
 Bertholf v. O'Reilly, 224. 
 
 Best V. Polk, 605. 
 
 Beuttel V. Railway Co., 692. 
 
 Bibb V. Allen, 749. 
 
 Bier v. McGehee, 296. 
 
 Bigby V. United States, 476. 
 
 Bigelow V. Nickerson, 455. 
 
 Bigham v. Talbot, 662. 
 
 Bigelow, Ex parte, 383. 
 
 Bigler v. "Waller, 370. 
 
 Billings T. Breining, 458. 
 
 Bingham v. Cabot, 458, 699. 
 Bishop V. Baker, 694. 
 Bishop V. Preserves, 173. 
 Bissell V. Briggs, 701. 
 Bissell V. Penrose, 614. 
 Bittenhaus v. Johnston, 124. 
 Black V. Bourbon County, 63. 
 Blackburn v. Portland Gold Min. 
 
 Co., 506. 
 Blackheath, The, 407, 408, 417, 
 
 434, 439, *54. 
 Blair v. Chicago, 536. 
 Blake v. McClung, 216, 218, 220. 
 
 223, 226, 235, 252, 263. 
 Blake, Re, 401. 
 Blanchard v. Brown, 58. 
 Blankburn v. Mining Co., 504, 506. 
 Blitz V. United States, 110. 
 Block v. Darling, 805. 
 Bloom v. Richards, 163. 
 Blount V. Walker, 358. 
 Blythe v. Ayres, 211. 
 Blythe v. Hinckley, 530, 598, 628. 
 Board of Commissioners v. Gor- 
 man, 369. 
 Bock V. Perkins, 502, 508, 524. 
 Bogart V. The John Day, 423. 
 Bogk V. Gassert, 807. 
 Bold Buccleugh, 435, 436, 438. 
 Bolles V. Outing Co., 552. 
 BoUman, Ex parte, 135, 381-383, 
 
 385. 
 Bolln V. Nebraska, 236, 239, 240. 
 Bolton V. Georgia Pacific R. Co, 
 
 662. 
 Bonafee V. Williams, 534. 
 Bond V. Dustin, 774, 778, 784, 789. 
 Bondurant v. Watson, 44, 58, 365. 
 Boogher Y. Life Ins. Co., 665, 737, 
 
 798. 
 Boom Co. V. Patterson, 132, 502. 
 Booth V. Denik, 731. 
 Borden v. Pitch, 701. 
 Bors V. Preston, 335, 475, 537. 
 Boske V. Comingore, 389. 
 Boston Beer Co. v. Massachusetts> 
 
 157. 
 
TABLE OP CASES, 
 
 Iv 
 
 [befeebnces aee to pages.] 
 
 Boston Min. Co. v. Montana Ore 
 
 Co., 504, 506. 
 Bostwick V. BrinkerhofC, 360, 361. 
 Botlller V. Dominguez, 47. 
 Bouldin v. Phelps, 601, 621. 
 Bowman v. Chicago & Northwest- 
 ern Ry. Co., 23. 
 Bowman v. Lewis, 157, 176, 178, 
 
 236, 279, 282. 
 Boyce V. Tahb, 291. 
 Boyd W. Nebraska, 358. 
 Boyd v. State of Nebraska, 211, 
 
 212. 
 Boyd V. United States, 7, 69, 88- 
 93, 95, 100, 101, 196, 326, 652, 
 753, 754. 
 Boyd, Ex parte, 663, 664, 666. 
 Boyer, Ex parte, 420, 425-427, 434, 
 
 439, 441. 
 Boyle V. Zacharie, 506, 594, 627, 
 
 628, 633, 651. 
 Braceville Coal Co. v. People, 224. 
 Bracken v. Railway Co., 803. 
 Bradley v. McCrabb, .397. 
 Bradshaw v. Ashley, 619. 
 Bradstreet v. Thomas, 800, 803. 
 Bradstreet, Ex parte, 400. 
 Bradwell v. Illinois, 216. 
 Brady v. Daly, 552. 
 Braithwaite v. Aiken, 729. 
 Bram V. United States, 88, 99. 
 Brandlocht, Ex parte, 395. 
 Breedlove v. Nicolet, 537. 
 Brent v. Chapman, 772, 773, 800. 
 Brewster v. Tuthill Springs Co., 
 
 573. 
 Brewster v. Wakefield, 373. 
 Bridge Co. v. Bridge Co., 288. 
 Bridge Props, v. Hoboten Co., 364. 
 Bridge Proprietors v. Hoboken L. 
 
 & I. Co., 290. 
 Brig America, The, 445. ' 
 Brig Ann, The, 456, 457. 
 Brig Kate, The, 456. 
 Brimmer v. Rebam, 40. 
 Brine v. Hartford Fire Ins. Co., 
 44, 293, 294. 
 
 Brine v. Ins. Co., 530, 618. 
 Briscoe v. Bank of Kentucky, 298. 
 Briseden v. Chamberlain, 506. 
 Brisenden v. Chamberlain, 502. 
 Britton v. Thornton, 43. 
 Broadis v. Broadis, 211. 
 Broderick's Will, 602. 
 Bronson v. Keokuk, 708. 
 Bronson v. Kinzie, 2, 285, 293, 294. 
 Brooklyn, The, 445. 
 Brooklyn City v. Newton R. Co. 
 
 V. Nat. Bank, 44, 61. 
 Brooklyn Life Ins. Co. v. Miller, 
 
 788, 793. 
 Brooks V. Norris, 813. 
 Brooks V. Scott, 641. 
 Brow V. Houston, 303. 
 Browell v. Illinois, 231. 
 Brown v. Atwell, 358. 
 Brown t. Campbell, 245. 
 Brown v. Chandler, 444. 
 Brown V. Clark, 798, 800. 
 Brown y. Clarke, 803. 
 Brown v. Commonwealth, 114. 
 Brown v. Farwell, 602. 
 Brown v. Hitchcock, 612, 613. 
 Brown v. Houston, 21, 24, 299, 300. 
 Brown v. Levee Com'rs, 83. 
 Brown v. Lull, 437. 
 Brown V. Marion Nat. Bank, 360. 
 Brown v. Maryland, 18, 20, 21, 23, 
 
 34, 35, 145, 188, 299, 300, 304, 
 
 316, '325, 327, 333, 350, 353, 354, 
 
 627. 
 Brown v. Massachusetts, 778. 
 Brown v. New Jersey, 56, 70, 71, 
 
 157, 173, 179, 186, 236, 238, 239, 
 
 241. 
 Brown v. Railroad Co., 521. 
 Brown v. Saul, 728. 
 Brown v. Shannon, 551. 
 Brown v. Smart, 279, 298, 373. 
 Brown v. Smith, 332, 467, 546. 
 Brown v. United States, 417. 
 Brown v. Walker, 88, 96, 97, 652. 
 Brown v. Webster, 543, 544. 
 Browne v. Browne, 534. 
 
Ivi 
 
 TABLE OP CASES CITED. 
 
 [EBFEEENCES ABE TO PAGES.] 
 
 Bryan v. Board of Education, 286. 
 
 Bryan v. Shirley, 617. 
 
 Buchanan v. Delaware Ins. Co., 
 736, 769, 773. 
 
 Bucher v. Cheshire R. Co., 52, 745, 
 749, 766. 
 
 Buchanan v. Rucker, 701. 
 
 Buckner v. Pinley, 535. 
 
 Bucksworth's Case, 114. 
 
 Budd V. State of New York, 164. 
 
 Buddicum v. Kirk, 749. 
 
 Budzesz V. Illinois Steel Co., 529. 
 
 Buel V. Van Ness, 365. 
 
 Buell V. Connecticut Mut. Life 
 Ins. Co., 752. 
 
 Bull V. Loveland, 755. 
 
 Bull V. Meloney, 372. 
 
 Burdett v. Haley, 617. i 
 
 Burford, Ex parte, 385. 
 
 Burgess v. Selegman, 54, 63, 766. 
 
 Burlington, Cedar Rapids & North- 
 ern Ry. Co. V. Dunn, 567, 586. 
 
 Burnes v. Scott, 601, 628, 725. 
 
 Burr V. Des Moines, 793, 794. 
 
 Burrows y. Carrow, 811. 
 
 Burrows v. Niblack, 778. 
 
 Burrows-Giles Lithographic Co. v. 
 Sarony, 70. 
 
 Burrus, Ex parte, 384. 
 
 Burt V. Merchants' Ins. Co., 479. 
 
 Burt V. Panjoud, 619. 
 
 Burtis, Ex parte, 399. 
 
 Burton v. Driggs, 757, 806. 
 
 Bush V. Kentucky, 157, 590. 
 
 Bush V. Marshall, 620. 
 
 Butchers' Union v. Crescent City 
 Co., 158. 
 
 Butler V. Gage, 357, 364, 369. 
 
 Butler V. Home for Soldiers, 527. 
 
 Butler V. National Home for Dis- 
 abled Volunteer Soldiers, 744. 
 
 Butler V. Steamship Co., 406, 407, 
 411, 412, 432. 
 
 Butterfield v. Stranahan, 19. 
 
 Butz V. Muscatine, 44-52, 498. 
 
 Buzard v. Houston, 598, 597, 599, 
 628. 
 
 Byers v. McAuley, 58. 
 Byers, Ex parte, 428. 
 
 c. 
 
 Cable V. United States Life Ins. 
 Co., 604, 605, 626. 
 
 Cable Co. v. Alabama, 507. 
 
 Cable Co. v. Watertown, 504. 
 
 Cableman v. Peoria & EvanvlUe 
 Ry. Co., 574. 
 
 Cain V. Emery, 635. 
 
 Calder v. Bull, 121, 122, 125. 
 
 Caldwell v. American River Bridge 
 Co., 30. 
 
 Caldwell v Texas, 157, 176, 179, 
 236. 
 
 California Ins. Co. v. Union Com- 
 press Co., 761, 762. 
 
 California Nat. Bank v. Stateler, 
 3G0, 361. 
 
 California v. Southern Pac. Co., 
 335, 340. 
 
 California, The, 445. 
 
 Callaghan v. Myers, 552. 
 
 Callan v. Wilson, 107. 
 
 Callison v. Brake, 696. 
 
 Calvin's Case, 201. 
 
 Cambria Iron Company v. Ash- 
 bum, 474. 
 
 Camden v. Doremus, 757. 
 
 Camden & S. Ry. Co. v. Stetson, 
 750'. 
 
 Cameron v. United States, 480. 
 
 Camfield y. United States, 480. 
 
 Campbell v. Bayreau, 758, 800. 
 
 Campbell v. Rankin, 019. 
 
 Campbell v. Sugar Co., 692. 
 
 Canal Boat W. J. Walsh, 440, 445. 
 
 Canal and Claiborne Streets R. R. 
 Co. V. Hart, 663. 
 
 Canfleld v. United States, 557. 
 
 Cannon v. New Orleans, 304, 305, 
 308. 
 
 Caperton v. Ballard, 344. 
 
 Capital City Dairy Co. v. Ohio, 
 356. 
 
TABLE OP CASES. 
 
 Ivii 
 
 [eefbrences aeb to pages.] 
 
 Capital Nat. Bank v. First Nat. 
 
 Bank, 344, 374. 
 Capital Traction Co. v. Hof, 128, 
 
 130, 131, 659, 738, 746. 
 Capron v. Van Noorden, 699. 
 Cardwell v. American Bridge Co., 
 
 24, 162. 
 Carey v. Curtis, 499. , 
 Carey v. Sprague, 114. ' 
 
 Carfer v. Caldwell, 384. 
 Cargill Co. v. Minnesota Railroad 
 
 & Warehouse Comm., 224, 225, 
 
 264. 
 Carlisle v. United States, 201. 
 Carneal v. Bank, 529. 
 Carolina Gold Amalgamating Co., 
 
 753. 
 Carpenter v. Insurance Company, 
 
 61. 
 Carpenter v. Pennsylvania, 121. 
 Carroll v. Dorsey, 366. 
 Carroll v. SafCord, 262. 
 Carroll County v. Smith, 63. 
 Carson v. Dunham, 586. 
 Carson v. Hyatt, 567, 586. 
 Carstarphen v. Graves, 693. 
 Carter v. Bennett, 778. 
 Carter v. Reedy, 879. 
 Carter v. Ruddy, 608, 615, 679. 
 Carter v. Territory, 211. 
 Carter v. Texas, 278, 354, 358. 
 Carteret v. Paschal, 608, 610. 
 Carver v. Jackson, 738, 701, 808. 
 Carver's Case, 805. 
 Cary v. Curtis, 316, 320, 496. 
 Casey v. Adams, 668. 
 Cass Farm Co. v. Detroit, 257, 259. 
 Cassius, The, 464. 
 Cates V. Allen, 128, 594-597, 602, 
 
 603, 626, 628, 651, 656, 696, 729. 
 Cates V. Hardacre, 92. 
 Catholic Missions v. Missoula 
 
 County, 504, 507. 
 Central Coal Co. v. Hartman, 558. 
 Ceatral Land Co. v. Laidley, 279. 
 Central Ohio Salt Co. V. Guthrie, 
 • 173. 
 
 Chae Chan Ping v. United States, 
 
 14, 15. 
 Chaftee v. Hayward, T05. 
 Chaffee v. United States, 465, 466. 
 Chaffln v. Taylor, 513. 
 Chamberlain v. Bittersohn, 731. 
 Chamberlain v. Chandler, 455'. 
 Champion v. Ames, 18, 23. 
 Chanute v. Trader, 497. 
 Chapin v. Brown, 173. 
 Chapman v. Barney, 732. 
 Chappell V. United States, 478, 
 
 479. 
 Chappell V. Waterworth, 574, 649, 
 
 656, 657, 659, 680. ■ 
 Chappell Chem'. & Fert. Co. v. Sul- 
 phur Mines Co., 279. 
 Charles River Bridge v. Warren 
 
 Bridge, 289, 510. 
 Charlotte, C. & A. R. Co. v. Gibbes, 
 
 249, 260, 274-276. 
 Charnley v. Sibley, 727. 
 Chastang v. State, 242. 
 Chase v. Curtis, 295. 
 Chateaugay Ore & Iron Co.'s Peti- 
 tion, Re, 399. 
 Chateaugay Ore & Iron Co., Ex 
 
 parte, 798, 800, 810. 
 Chateaugay Ore & Iron Co., Re, 
 
 653, 665. 
 Chattahoochee, The, 413. 
 Chattanooga Foundry & Pipe 
 
 Works v. City of Atlanta, 676. 
 Chemung Canal Bank v. Lowry, 
 
 229, 721. 
 Chenango Bridge Co. v. Bingham- 
 
 ton Bridge Co., 289, 290. 
 Cherokee Nation v. Georgia, 197.' 
 Cherokee Nation v. Southern 
 
 Kansas R. Co., 478, 599, 603, 696. 
 Cherokee Tobacco, The, 198. 
 Chesapeake & Ohio Canal Co. v. 
 
 Knapp, 762, 763. 
 Chesapeake & Ohio R. Co. v. Dixon, 
 
 578, 579, 692. 
 Chesapeake Ins. Co. v. Stark, 736, 
 
 769, 770, 773. 
 
J.TIU 
 
 TABLE OP CASES CITED. 
 
 [eefekences are to pages.] 
 
 Chetwood, Ex parte, 401. 
 
 Chicago V. Sheldon, 57, 61, 64, 297. 
 
 Chicago V. Taylor, 134. 
 
 Chicago & G. T. R. Co. v. "Well- 
 man, 249. 
 
 Chicago & N. W. R. Co. v. Fuller, 
 162, 165, 168. 
 
 Chicago & N. W. R. R. Co. v. 
 Whitton, 52, 501. 
 
 Chicago, B. & Q. R. Co. v. Chicago, 
 246, 251, 263, 345, S46, 349, 354. 
 
 Chicago, B. & Q. R. R. Co. y. Cutts, 
 165. 
 
 Chicago, B. & Q. R. R. Co. v. State 
 ex rel. City of Omaha, 168. 
 
 Chicago, I. & L. Ry. Co. v. Mc- 
 Guire, 352. 
 
 Chicago, K. & W. R. Co. v. Pon- 
 tius, 264, 265;- 
 
 Chicago Life Ins. Co. v. Needles, 
 297. 
 
 Chicago, M. & St. P. R. Co. v. 
 Minnesota, 249. 
 
 Chicago, R. I. & P. I. Co. v. Mar- 
 tin, 573, 575, 576. 
 
 China, The, 436. 
 
 Chinoweth v. Lessees of Haskell, 
 759. 
 
 Chirac v. Chirac, 529. 
 
 Chouteau v. Gibson, 358. 
 
 Christy v. Pridgeon, 43, 44, 52, 
 57, 64. 
 
 Christy v. Scott, 619. 
 
 Christy, Ex parte, 396. 
 
 Church V. Hubbart, 415. 
 
 Church V. Kelsey, 176, 244. 
 
 Church V. Mumford, 693. 
 
 Church V. Spiegelburg, 601. 
 
 Cincinnati v. White, 624. 
 
 Cincinnati, N. 0. & T. P. R. Co. v. 
 Kentucky, 253. 
 
 Cincinnati, New Orleans & Texas 
 Pacific Ry. Co. v. Bohon, 578, 
 579. 
 
 Cincinnati, New Orleans & Texas 
 Pac. Ry. Co. v. Bohon, 696, 697. 
 
 Cincinnati Street Ry. Co. v. Snell,. 
 279, 280, 361. 
 
 Citizens' Bank v. Board of Liqui- 
 dation, 358. 
 
 Citizens' Bank of Louisiana v.. 
 Cameron, 540, 543. 
 
 Citizens' Savings & Trust Co. v, 
 Illinois Central Railroad Co., 
 672, 708. 
 
 Citizens' Savings Bank v. Owens- 
 boro, 55, 64. 
 
 City Nat. Bank, Re, 399. 
 
 City of Key West v. Baer, 790, 
 791. 
 
 City of Mexico, The, 416. 
 
 City of Norwalk, The, 411. 
 
 City of Pittsburg, 436. 
 
 City of St. Louis v. Western Union 
 Tel. Co., 788, 791, 792. 
 
 Civil Rights Cases, 156, 179, 182, 
 184, 263, 325, 326, 472. 
 
 Claasen's Case, 118. 
 
 Claasen, In re, 105. 
 
 Claflin V. Houseman, 46. 
 
 Clark V. City of Kansas City, 361. 
 
 Clark V. Clark, 530. 
 
 Clark V. Graham, 530, 618. 
 
 Clark V. Kansas City, 373. 
 
 Clark V. Pry, 692. 
 
 Clark V. Mathewson, 545. 
 
 Clark V. Pennsylvania, 362, 363. 
 
 Clark V. Smith, 602. 
 
 Clay V. Field, 543. 
 
 Clay County v. Society for Sav- 
 ings, 290. 
 
 Clayton v. Heidelberg, 395. 
 
 Clement v. Ins. Co. 791. 
 
 Clement v. Packer, 44. 
 
 Clements v. Berry, 58. 
 
 Cleveland v. Cleveland, 624. 
 
 Cleveland v. Cleveland City R. 
 Co., 510, 518. 
 
 Cleveland, C, C. & St. L. R. Co. v. 
 Backus, 271. 
 
 Cleveland, etc., R. R. Co. v. Penn- 
 sylvania, 291, 293, 296. 
 
TABLE OF CASES. 
 
 lix 
 
 [EEFEEENCBS ABE TO PAGES.] 
 
 Cleveland P. £ N. R. Co. v. Penn- 
 sylvania, 261, 
 
 Clipper Min. Co. v. Ell. Min. Co., 
 346, 349. 
 
 Clinton v. ESngelbrecht, 329. 
 
 Coal Boat D. C Salisbury, The, 
 444. 
 
 Coal Co. T. Blatchford, 534. 
 
 Cochran v. United States, 110. 
 
 Cochran V. Montgomery County, 
 566, 569, 570, 572, 573, 577, 581, 
 583. 
 
 Cockcroft, Ex parte, 372. 
 
 Coddington v. Richardson, 788. 
 
 Coe V. Connecticut, 372. 
 
 Coe V. Errall, 174. 
 
 Coffey V. Greenfield, 729. 
 
 Coffey V. United States, 655, 664. 
 
 Coggeshall v. United States, 549. 
 
 Cohens v. Virginia, 14, 47-49, 64, 
 69, 70, 144, 145, 188, 312, 316, 
 318, 322, 324 325, 327, 333, 343, 
 345, 347-349, 353, 354, 362, 363, 
 493, 627. 
 
 Cole V. Cunningham, 216, 229. 
 
 Colorado Cent. Min. Co. v. Turck, 
 506. 
 
 Colorado Midland R. Co. v. Jones, 
 570. 
 
 Columbia & Puget Sound R. Co. 
 V. Hawthonue, 765, 795. 
 
 Columbia, Water Power Co. v. Co- 
 lumbia Electric Street Ry. Light 
 Power Co., 344, 349-351, 356. 
 
 Columbus Southern Ry. Co v. 
 Wright, 273, 274. 
 
 Comities v. Parkenson, 216. 
 
 Commonwealth v. Acton, 242. 
 
 Commonwealth v. Cratty, 90. 
 
 Commonwealth v. Dana, 242. 
 
 Commonwealth v. Elisha, 111. 
 
 Commonwealth v. Lottery Tickets, 
 90. 
 
 Commonwealth v. Manchester, 32. 
 
 Commonwealth v. Perry, 224. 
 
 Commonwealth v. Peters, 116, 428. 
 
 Commonwealth v. Richards, 114, 
 
 Commonwealth v. Smith, 242. 
 Commonwealth v. Tibbetts, 242, 
 Commonwealth v. Tucker, 117. 
 Commonwealth v. Wyman, 126. - 
 Commonwealth of Virginia, Ex 
 
 parte, 182, 229, 235. 
 Confiscation Cases, 471, 549. 
 Conley v. Mathieson Alkali Works, 
 
 705, 718. 
 Connaway, Ex parte, 399, 681, 688. 
 Connecticut River R. R. Co. v. 
 
 PYanklin County Comm'rs, 395. 
 Connecticut Mut. Life Ins. Co. v. 
 
 Hillman, 741, 745, 749. 
 Connecticut Mut. Life Ins. Co. v. 
 
 Cushman, 44. 
 Connecticut Mut. Life Ins. Co. v. 
 
 Spratley, 702, 707. 
 Connecticut Mut. Life Ins. Co. v. 
 
 Union Trust Co., 807. 
 Connell v. Smiley, 578, 580. 
 Conner v. Elliott, 216, 218, 228. 
 Connolly v. Union Sewer Pipe Co., 
 
 269, 558. 
 Conqueror, The, 451, 457. 
 Conrad v. Atlantic Ins. Co., 451, 
 
 756. 
 Conrad v. Ins. Co., 808. 
 Considine v. United States, 106. 
 Consol. Silver Min. & M. Co. v. 
 
 Pennsylvania, 260. 
 Constable v. National Steamship 
 
 Co., 681. 
 Converse, Re, 179. 
 Cook V. Avery, 502, 508, 526, 6C3, 
 
 664, 785. 
 Cook V. Hart, 389, 390. 
 Cook V. Pennsylvania, 18, 20, 21,. 
 
 300, 301. 
 Cook V. United States, 109. 
 Cook County v. Calumet & O. Ca- 
 nal & D. Co., 44, 358. 
 Cooley V. Port Wardens, 17, 18, 24,. 
 
 33, 70, 162, 163, 446. 
 Cooper V. Omohundro, 788, 790,. 
 
 791. 
 Cooper V. Reynolds, 709. 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 [EEFEEENCES ABE TO PAGES.] 
 
 Cooper Mnfg. Co. v. Ferguson, 278. 
 Coop«r, Ex parte, 322, 395, 396. 
 Corbin v. Blockham County, 535. 
 Corbln v. Brunt, 5{!8. 
 Corfleld v. Coryell, 216, 221, 224. 
 Corporation v. Dawson, 636. 
 Corry v. Baltimore, 153. 
 Corsair, The, 442, 455. ' 
 
 Cotter V. Ala. G. S. Co., 348. 
 Cotton V. Rand, 662. 
 Coughran v. Bigelow, 795. 
 Couillard v. United States, 549. 
 Coulter V. Louisville & Nashville 
 
 R. R. Co., 153. 
 Counselman v. Hitchcock, 91, 93, 
 
 94, 100, 101, 652, 754. 
 County of Lincoln v. Luning, 56. 
 Coupe V. Royer, 550. 
 Cousin V. Labatut, 352. 
 Coutez V. United States, 213. 
 Covington & Cincinnati Bridge 
 
 Co. V. Hager, 563. 
 Covington & L. Turnpike Road 
 
 Co. V. Sandford, 249, 260, 289. 
 Cox V. Lott, 304, 306. 
 Craft V. McCOnoughy, 173. 
 Craig V. Lowell, 636. j 
 
 Craig V. Missouri, 298, 794. ! 
 
 Craighead v. Wilson, 361. 
 Crain v. United States, 86, 110. 
 Cramer v. Washinton, 392. 
 Crandall v. Nevada, 23, 230, 231. 
 Crandall v. Piano Mfg. Co, 751. 
 Crane v. Reeder, 212, 
 Crane, Ex parte, 397, 399, 804, 805, 
 
 808, 810. 
 Crawford v. Johnson, 553. 
 Creighton v. Kerr, 710-712. 
 Crehore v. Ohio & Mississippi R. 
 
 Co., 567, 586. 
 Crescent Live Stock Landing & 
 
 Slaughter-House Co. v. Butch- 
 ers' Union, 354. 
 Cross v. Allen, 58. 
 Cross V. Harrison, 148. 
 Crossley v. New Orleans 352. 
 Crow Dog's Case, 198. 
 
 Crowell V. Randall, 344, 350. 
 Crowley v. Christensen, 162. 
 Cruteher, v. Kentucky, 20, 33. 
 Cryer v. Andrews, 211. 
 Cuddy, Ex parte, 322, 392. 
 CuUen V. Commonwealth, 92, 94. 
 Cummings v. Chicago, 30, 31, 502, 
 
 523. 
 Cummings v. James, 372. 
 Cummings v. Missouri, 73, 74, 124. 
 Cunningham v. Nagle, 381, 384, 
 
 389, 393, 590. 
 Curran v. Arkansas, 285, 290, 293. 
 dishing V. Laird, 458. 
 Cutler V. Houston, 325. 
 Cutler T. Powell, 641. 
 
 Dale Tile Mfg. Co. v. Hyatt, 551. 
 Daniel v. United States Machinery 
 
 Co., 731. 
 Daniel Ball, The, 22, 33, 408, 420, 
 
 421, 423, 427. 
 Darlington v. Jackson County, 44, 
 
 63. 
 Darrlngton v. Branch of The Bank 
 
 of Alabama, 298. 
 Dartmouth College v. Woodward, 
 
 150, 285, 288, 290, 291, 293, 316, 
 
 325, 327, 333, 350, 353, 354, 510, 
 
 627, 769. 
 Davenport v. Fletcher 366, 372. 
 Davidson v. Calkins, 598, 628. 
 Davidson v. Lanier, 365, 813. 
 Davidson v. New Orleans, 83, 157, 
 
 189, 190, 236, 253-255, 257. 
 Davie v. Briggs, 44. 
 Davies v. Lathrop, 534. 
 Davis V. Alvord, 600. 
 Davis V. Burke, 240. 
 Davis V. Coblens, 751. 
 Davis V. Davis, 594, 601, 621, 628. 
 Davis V. Delpit, 647, 648. 
 Davis V. Gray, 280, 286, 288, 290, 
 
 514, 516. 
 Davis V. Kansas City R. Co., 731. 
 
TABLE OP CASES. 
 
 Ixi 
 
 [UEFEBENCES ARE TO PAGES.] 
 
 Davis V. Los Angeles, 518. 
 
 Davis V. Massacliusetts, 158. 
 
 Davis V. Patrictc, 800. 
 
 Davis V. Schwartz, 540, 543. 
 
 Davis V. South Carolina, 590. 
 
 Davis V. Texas, 70, 186. 
 
 Davis V. Wakelee, 245. 
 
 Davis V. Waklee, 370. 
 
 Davis & Farnum Mfg. Co. V. Los 
 
 Angeles, 510. 
 Davis, The, 447. 
 Dax V. Postmaster-General, 468. 
 Day V. Woodworth, 521. 
 Dayton v. Lash, 370. 
 Dealy v. United States, 118. 
 Debs, Re, 13, 15, 47, 48, 64, 627. 
 Decatur v. Paulding, 399, 
 Deck V. Whitman 618. 
 Deer, The, 445. 
 Defiance Water Co. v. Defiance, 
 
 504, 506. 
 Ueford v. Mehafty, 731. 
 De Geofroy v. Riggs, 529. 
 De Groot v. United States, 378. 
 Delaware County v. Diebold Safe 
 
 & Lock Co., 677, 680. 
 Delaware, Lackawanna & West- 
 ern R. Co. V. Converse, 764, 765, 
 
 809. 
 Delaware, The, 413. 
 De Lima v. Bedwell, 547. 
 Delma v. iMerchants' Mut. Ins. 
 
 Co., 296. 
 De Lovio v. Bolt, 406, 432, 440, 
 
 448. 
 Deneale v. Archer, 366. 
 Dennick v. Central R. Co., 502, 
 
 606, 645. 
 Denny v. Bennett, 297. 
 Denny v. Pironi, 531. 
 Deputron v. Young, 542, 721, 723. 
 Dermott v. Jones, 640. 
 De Saussure v. Galllard, 358. 
 Desbois' Case, 212 213. 
 Desbrow v. Walsh Bros., 444. 
 ;Desept Salt Co. v. Tarpey, 613, 
 
 614, 
 
 Despaux v. Pennsylvania R. Co., 
 
 659, 747. 
 Detroit v. Detroit Citizens' Street 
 
 R. Co., 518. 
 Detroit v. Parker, 257 269. 
 Detroit City R. Co. v. Guthard, 
 
 358. 
 Detroit River Ferry Co., EK parte, 
 
 395. 
 De Vaughn v. Hutchinson, 530. 
 Devine v. Los Angeles, 504. 
 Devoe Mfg. Co., Petitioner, 109, 
 
 458. 
 Deweese v. Reinhard, 604, 605, 
 
 626, 628. 
 Dewing v. Perdicarles, 209. 
 Diana, The, 441. 
 Dibble v. Bellingham Bay Land 
 
 Co., 56, 357, 359. 
 Dick V. Foraker, 671, 672. 
 Dickens v. Beal, 535. 
 rWckerson v. Colgrave, 623, 624. 
 Dickinson v. Brown, 616. 
 Dietzsch v. Hendekoper, 567, 568. 
 Dietzsch v. Huldelkoper, 498. 
 Dimmick v. Tomkins, 383. 
 Dirst V. Morris, 788, 790, 791. 
 Divine v. Los Angeles, 506. 
 Dixon V. Porter, 616. 
 Doane v. Glenn, 749. 
 Doane v. Penhallow, 314. 
 Dobbins v. Com'rs, 26, 146. 
 Dobbins v. Erie County, 262. 
 Dodge V. Tulley, 534. 
 Dodge V. Woolsey, 291, 511, 514. 
 Doe V. Dyball, 619. 
 Doe V. Hilder, 608, 610. 
 Doe V. Pegge, 608. 
 Doe V. Reade, 619. 
 Doe V. Staple, 608, 610. 
 Doe V. Sybourn, 608, 610. 
 Doe V. Wright, 608, 610. 
 Doe V. Wroot, 607-610^ 647. 
 Donald v. Massachusetts, 363. 
 Doolan v. Carr, 502, 508, 525, 615. 
 Dooley v. Pease, 788. 
 Dooley v. United States, 477. 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 [EEEEKENCKS ABE TO PAGES.] 
 
 Dora Mathews, The, 452. 
 
 Dormer v. Fortescue, 607. 
 
 Dorsey v. Brigham, 211. 
 
 Dougherty v. Compton, 372. 
 
 Douglas V. Commoiiwealth of Ken- 
 tucky, 158. 
 
 Douglass V. Pike County, 44, 55, 
 57, 63, 64. 
 
 Doulson. v. Matthews, 636, 667, 
 694. 
 
 Dovany v. Koon, 758. 
 
 Dow V. Beidelmau, 249. 
 
 Dowell V. Applegate, 322. 
 
 Dower v. Richards, 345, 346, 349, 
 359. 
 
 Downes v. Bedwell, 129, 547. 
 
 Dox V. Postmaster-General, 546. 
 
 Doyle V. Continental Ins. Co., 277. 
 
 Draco, The, 450. 
 
 Drake v. Kochersperger, 360. 
 
 Dravo v. Fabel, 596, 628. 
 
 Dred Scott v. Sandford, 13, 16, 
 146, 147, 191, 194, 197. 
 
 Dredgei v. Forsyth, 758, 800, 803. 
 
 Dubuque & P. R. R. Co. v. Litch- 
 field, 289. 
 
 Ducat V. Chicago, 226, 277. 
 
 Duffy V. White, 621. 
 
 Dulles V. Jones, 44. 
 
 Duncan v. McCall, 389. 
 
 Duncan v. Missouri, 236. 
 
 Dundee Mortgage & Trust Invest- 
 ment Co. V. Hughes, 789. 
 
 Dunlap V. Monroe, 807. 
 
 Dunlap V. State, 114. 
 
 Duiin V. Clarke, 545, 
 
 Dupree v. Perry, 372. 
 
 Duren v. H. & T. C. Ry. Co., 617, 
 618. 
 
 Dushane v. Benedict, 695, 726. 
 Dynes v. Hoover, 107. 
 Dyson v. Baker, 758. 
 
 Dyson's Case, 758. 
 
 E. 
 
 Eagle, The, 33, 420, 430, 432, 434, 
 439, 441. 
 
 E. A. Packer, 441. 
 
 Earl V. Southern Pacific Co., 675. 
 
 Earl of Macclesfield's Case, 92. 
 
 East St. Louis v. United States, 
 498. 
 
 East Tenn. V. & G. R. Co. v. At- 
 lanta & F. R. Co., 705. 
 
 East Tennesse, Virginia & Geor- 
 gia R. R. Co. V. Grayson, 578. 
 
 Easterling v. Blythe, 617. 
 
 Eastern Transportation Line v. 
 Hope, 761, 764. 
 
 Easton v. Salisbury, 605, 614, 620-. 
 
 Easton, Ex parte. 395, 396, 440, 
 452. 
 
 Eberly v. Moore, 732. 
 
 Bckart, Re, 383. 
 
 Ederhart v. -Huntsville College, 
 531. 
 
 Eddy, The, 440. 
 
 Edge v. Robertson, 47, 529. 
 
 Edith Godden, The, 445. 
 
 Edwards v. Bates County, 543, 
 544. 
 
 Edwards V. Elliott, 70, 244, 432. 
 
 Edwards v. Kearzey, 2, 293, 296, 
 297. 
 
 EfBnger v. Kenney, 291. 
 
 Egan V. Hart, 345, 349 
 
 Egler V. Marsden, 636 
 
 Eib V. Pendall, 691. 
 
 Eilembecker v. District Court, 244. 
 
 Eilenbecker v. Plymouth Co. Dist» 
 Ct., 186. 
 
 Bkin V. United States, 86, 87. 
 
 Elder v. Hilzheim, 668, 694. 
 
 Eldred v. Bank, 710-712. 
 
 Elfreda, The, 409. 
 
 Elk V. "Wilkins, 194, 195, 197, 199, 
 200, 202, 212. 
 
 Eilenbecker v. Plymouth County 
 Dist. Ct., 70. 
 
 EUenwood v. Marrieta Chair Co.,. 
 636, 668, 673, 694. 
 
 Elliott v. Ry. Co., 765. 
 
 Elliott & Co. v. Tolppner, 132. 
 
 Emanuel v. Gates, 803. 
 
TABLE OF CASES. 
 
 Ixiii 
 
 [REFEBBNCES ABE TO PAGES.] 
 
 Emery v. Candler Co., 173. 
 
 Emery's Case, 92, 94. 
 
 E. M. McChesney, The, 426'. 
 
 England v. Slade, 608, 610. 
 
 Ennis v. Smith, 415. 
 
 Enterprise, The, 415. 
 
 Entick V. Carrington, 88, 92. 
 
 Equator Mining & Smelting Co. 
 V. Hall, 431, 781. 
 
 Brie Railroad v. Purdy, 352. 
 
 Erie Railway Co. v. Pennsylva- 
 nia, 59, 272, 274. 
 
 Erastina, The, 445. 
 
 Ernstein v. Rothschild, 654, 731. 
 
 Erskine v. Forest Oil Co., 598, 
 628. 
 
 Ervines Appeal, 84. 
 
 Escambia Co. v. Chicago, 1C2. 
 
 Escanaba & L. M. Transp. Co. v. 
 Chicago, 24, 30, 39, 418. 
 
 Estes V. Trabue, 367, 372, 373. 
 
 Estrella, The, 458. 
 
 Eustis V. BoUes, 358, 359. 
 
 Ethel, The, 442, 444. 
 
 Evans v. Brown, 367. 
 
 Evans v. BoUen, 464. 
 
 Evans v. Eaton, 549. 
 
 Evans v. United States, 110. 
 
 Evanston v. Gunn, 757. 
 
 Evers v. Watson, 322. 
 
 Excelsior Wooden Pipe Co. v. Pa- 
 cific Bridge Co., 549, 550. 
 
 Exchange v. McFadden, 203-206. 
 
 Exchange National Bank v. Wa- 
 shitla Cattle Co., 753. 
 
 Exposition Cotton Mills v. West- 
 ern & A. R. Co., 662. 
 
 F. 
 
 Faber v. Indianapolis Journal 
 
 Newspaper Co., 659. 
 Fairfax v. Hunter, 328, 353, 354, 
 
 529, 530. 
 Fairfield v. Burt, 691. 
 Fairfield -v. Gallatin County, 44, 
 
 57, 62, 64. 
 
 Falbrook Irr. Co. v. Bradley, 189, 
 
 247, 253, 256, 257. 
 Farnham v. Hay, 691. 
 Farrell v. O'Brien, 502, 506. 
 Farrell v. West Chicago Park 
 
 Com'rs, 253, 259. 
 Farrington. v. Tennessee, 287, 288, 
 
 291. 
 Fassett, Ex parte, 457. 
 Faust V. United States, 756. 
 Paw V. Roberdeau, 772, 773, 800. 
 F. & P. M. Co. No. 2, The, 436. 
 Feibleman v. Packard, 372, 502, 
 
 508, 524. 
 Felton V. Spiro, 780, 781-783. 
 Felts V. Murphy, 383. 
 Fenn v. Holme, 128, 594, 607, 609, 
 
 612, 616, 626, 628, 633, 651, 657, 
 
 678, 679, 690. 
 Ferry Co. v. East St. ouis, 19, 20. 
 Fest V. Union Pac. R. Co., 498. 
 Fidelity Ins. T. & S. D. Co. v. 
 
 Huntington, 578'. 
 Fidelity Ins., Trust & Safe De- 
 posit Co. V. Norfolk & W. R. Co., 
 
 498. 
 Fidelity Mutual Life Ass'n v. Met- 
 
 tier, 268. 
 Field V. Barber Asphalt Pav. Co., 
 
 260. 
 Field V. Clark, 19. 
 Fifty Thousand Feet Timber, 447. 
 Filhiol V. Maurice, 504, 506, 508, 
 
 529. 
 Fir© Ass'n of Phildelphia v. New 
 
 York, 263, 277. 
 Fish V, Henarie, 580, 582, 587. 
 Pishback v. Western Union Tele- 
 phone Co., 7, 507, 539, 540, 542, 
 
 573. 
 Fishburn v. Chicago, Milwaukee 
 
 & St. Paul Ry. Co., 780, 782. 
 Fisher v. Carrico, 362, 363. 
 Fisher v. Lane, 701. 
 Fisher v. McCirr, 90. 
 Fisher v. Yoder, 332, 467, 545, 54'6. 
 Fisk v. Henarie, 566. 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 [KEFEEENCES ABE TO PAGES.] 
 
 Fiske, EX parte, 7, 651, 653, 654, 
 
 656, 657, 659, 680, 680, 747 
 Fitch V. Credghton, 43, 51. 
 Fitzgerald & Mallory Const. Co. v. 
 
 Fitzgerald, 702, 710, 711, 717, 
 
 718, 722, 724. 
 Fitts V. McGliee, 127. 
 Flanders v. Tweed, 798, 800. 
 Flatley v. Memphis & Charleston 
 
 R. Co., 662. 
 Fleitas v. Cockrem, 44. 
 Fletcher v. Morey,.506. 
 Fletcher v. Peck, 124, 285-287, 316, 
 
 327, 510, 511, 628, 642, 698, 767, 
 
 769. 
 Flood V. Yandes, 691. 
 Florida v. Georgia, 329, 337, 340. 
 Florida R. Co. v. Smith, 802. 
 Flournoy v. Smith, 372. 
 Fonda, Ex parte, 388. 
 Foote V. Pike County, 44, 63. 
 Ford V. Association, 173. 
 Forsyth v. Doolittle, 721. 
 Forsyth v. Pierson, 708. 
 Forsyth v. United States, 485. 
 Fort Leavenworth R. Co. v. Lowe, 
 
 478. 
 Foster v. Kansas, 158, 389. 
 Foster v. Nellson, 47, 529. 
 Foster v. Mora, 594, 601, 608, 621, 
 
 628, 657, 679, 725. 
 Fowle V. Alexandria, 759, 760. 
 Fowle V. Lawrason, 639. 
 Fowker v. Lindsey, 742. 
 Fox V. Ohio, 70, 146, 186. 
 Francisco v. Chicago & A. R. Co., 
 
 665, 798. 
 Fraser v. Tennison, 578. 
 Frederick, Ex parte, 389.. 
 Freeland v. Williams, 176, 295. 
 Frellnghuysen v. Baldwin, 332, 
 
 467, 545, 546. 
 French v. Barber Asphalt Pav. 
 
 Co., 259. 
 French v. Edwards, 610, 628. 
 French v. Fuller, 352. 
 French v. Hay, 498, 507, 568. 
 
 French v. Stewart, 589. 
 French v. Wise, 540, 543. 
 Freshman v. Insurance Co., 498. 
 Fretz V. Bull, 32, 408, 420, 427, 
 
 441. 
 Friedenstein v. United States, 470. 
 Frisbee v. United States, 224-226. 
 Froer v. People, 224. 
 Frolickstein v. Mobile, 163. 
 Fullerton v. , Texas, 352, 353, 357. 
 Furnam v. Nichol, 294. 
 Fussell V. Gregg, 607, 626. 
 
 G. 
 
 Gableman v. D. & E. R. Co., 528. 
 
 Gableman v. Peoria D. & E. R. Co., 
 573, 575. 
 
 Gacier Mountain S. Min. Co. r. 
 Willis, 619. 
 
 Gaines v. Caldwell, 399. 
 
 Gaines v. Puentes, 330, 501, 570. 
 
 Gaines v. Stiles, 761. 
 
 Gallatin v. Alexander, 274. 
 
 Galena v. Amy, 498. 
 
 Galena v. Railroad Co., 521. 
 
 Galena v. United States, 295. 
 
 Gait V. Galloway, 607, 626. 
 
 Galveston, Harrisburg & San An- 
 tonio Ry. Co. V. Gonzales, 658, 
 668, 669, e^t), 710, 712, 713, 718. 
 
 Gardner v. Michigan Central R. 
 Co., 60. 
 
 Garland, Ex parte, 73, 124, 326. 
 
 Garner v. Second Nat. Bank, 498. 
 
 Garnett, Ex parte, 32, 412, 420, 
 422, 456. 
 
 Garnett, Re, 426. 
 
 Gasquet y. Johnson, 728. 
 
 Gates r. Johnson, 427. 
 
 Gay V. Joplin, 777. 
 
 Gelpcke v. Dubuque, 57, 63, 64, 
 297. 
 
 Gelston v. Hoyt, 363, 456. 
 
 General Smith, The, 409, 440, 442, 
 443. 
 
 Generes v. Campbell, 349. 
 
TABLE OF CASES. 
 
 Ixv 
 
 [REFEKENCES ABE TO PAGES.] 
 
 Generes v. Bonnemer, 800. 
 Genessee Chief, The, v. Fitzhugh, 
 
 32. 
 Genesee Chief, 407-409, 417-420, 
 
 426, 427, 429-431, 439, 441. 
 George S. Wright, The, 445. 
 George T. Kemp, The, 452. 
 Georgia v. Grant, 340. 
 Georgia v. Stanton, 8, 316, 340. 
 G«orgia H. & Bkg. Co. v. Smith, 
 
 289. 
 Gerling v. Baltimore & Ohio R. 
 
 Co., 572. 
 Germain v. Mason, 373. 
 German Nat. Bank v. Kimball, 
 
 269. 
 Geirmanic, The, 413. 
 Gertrude Glaser, Bx parte, 400. 
 Geyger v. Geyger, 752. 
 Gibbs V. Consolidated Gas Co. of 
 
 Baltimore, 173. 
 Gibbons v. Ogden, 11, 14, 18-23, 34, 
 
 35, 48, 51, 64, 145 150, 162, 188, 
 
 314, 316, 325, 327, 333, 353-355, 
 
 '627. 
 Gibson v. Chouteau, 612. 
 Gison V. Mississippi, 123, 125, 157, 
 
 176, 251, 263, 274, 590. 
 Gibson v. Peters, 468, 546. 
 Gibson v. Shufeldt, 543. 
 Gibson v. United States, 29, 133. 
 Gilbert v. McNulta, 528. 
 Gilbert Knapp, The, 452. 
 Giles V. Teasley, 359. 
 Giles V. Little, 373. 
 Gilman v. Philadelphia, 17, 24, 30, 
 
 42, 162. 
 Gilman .V. Sheboygan, 56, 146, 150. 
 Gimble v. Pitkin, 367. 
 Gindrat v. People, 243. 
 Gist, Ex parte, 319. 
 Gittings V. Crawford, 207, 335, 475, 
 
 537. 
 Giozza V. Tiernan, 231, 232, 236. 
 Glass V. The Betsey, 416, 456, 457, 
 
 458, 
 Gleason v. Florida, 364. 
 
 Glenarne, The, 445. 
 
 Glenn v. Sumner, 688, 697, 721, 
 774. 
 
 Glide, The, 431, 435, 436, 440, 442- 
 444. 
 
 Globe Ref. Co. v. Landa Cotton 
 Oil Co., 541, 718, 737. 
 
 Gloucester Ferry Co. v. Pennsyl- 
 vania, 21, 23, 24. 
 
 Goddard v. Moeller, 705. 
 
 Goldey v. Morning News, 658, 702, 
 705, 710, 712, 713, 718. 
 
 Golsby V. United States, 756. 
 
 Gombert v. Lyon, 598, 628. 
 
 Gon Shay-Ee, Ex parte, 329. 
 
 Goodcharles v. Wigeman, 224. 
 
 Goodell V. Jackson, 198. 
 
 Goodett V. Louisville & National 
 R. Co., 809. 
 
 Goodier v. Barnes, 554. 
 
 Goodrich v. Detroit, 256. 
 
 Goodson V. Ellison, 608, 610. 
 
 GoodtiUe v. Herbert, 621. 
 
 GoodtitLe v. Jones, 607, 609, 610, 
 611, 647. 
 
 Goodwin v. Fox, 370. 
 
 Goodyear v. Day, 551. 
 
 Gordan v. Appeal Tax Cases, 288, 
 290. 
 
 Gordon v. Gibs, 372. 
 
 Gordon v. Jackson, 598, 628. 
 
 Gordon v. Longest, 502, 506. 
 
 Gordon, Ex parte, 395, 396. 
 
 Gormley v. Bunyan, 732. 
 
 Gormley v. Clark, 44, 55, 57. 
 
 Gould V. Day, 757, 801. 
 
 Grace v. Ins. Co., 531. 
 
 Graham v. Bayne, 769, 797. 
 
 Graham v. Stuckeh, 335. 
 
 Graham, Ex parte, 398. 
 
 Grand Chute v. Winegar, 597, 604, 
 605, 626, 628. 
 
 Grand Trunk R. Co. v. Ives, 763, 
 801, 809. 
 
 Grand Trunk R. Co. v. Richard- 
 son, 248. 
 
 Grapeshot, The, 440, 449, 450. 
 
Ixvi 
 
 TABLE OP CASES CITED. 
 
 [EErEEENCES ABE TO PAGES.] 
 
 Graves v. Corbin, 578. 
 
 Gray v. Goftman, 198. 
 
 Gray v. Schneider, 753. 
 
 Great Southern Fire Proof Ho- 
 tel Co. V. Jones, 700. 
 
 Great Wiestern R. Co. v. Sutton, 
 482. 
 
 Great Western Telegraph Co. v. 
 Burnham, 361. 
 
 Great Western, The, 412. 
 
 Greely v. Lowe, 671, 708. 
 
 Green v. Biddle, 285, 286, 290. 
 
 Green v. Brigs, 84. 
 
 Green v. Liter, 540. 
 
 Green v. Mezes, 601, 621, 628. 
 
 Green v. Neal, 57, 62. 
 
 Green, Re, 399. 
 
 Greenherg v. Lumber Co., 692. 
 
 Greene, In re, 465. 
 
 Green Bay & M. Canal Co. v. Pat- 
 ten Paper Co., 356, 421i. 
 
 Green County v. Kortrech, 543. 
 
 Greer v. Connecticut, 22. 
 
 Greer v. Mezes, 725. 
 
 Gregg V. Sayer, 604, 808. 
 
 Gregory v. Chicago R. Co., 660. 
 
 Gregory v. Hartley, 582. 
 
 Gregory v. McVeigh, 362, 363. 
 
 Gregory v. R. Co., 752, 753. 
 
 Griggs V. Houston, 809. 
 
 Grimes v. Hobson, 617. 
 
 Grimes Dry Goods Co. v. Malcolm, 
 653, 656, 661, 762, 764, 771. 
 
 Grindrat v. Dane, 604. 
 
 Gross V. United States Mortg. Co., 
 351, 352, 356. 
 
 Grossmayer, Re, 399. 
 
 Grover Co. v. Florence Co., 496, 
 499. 
 
 Groza v. Tiernan, 260. 
 
 Guaranty & Indemnity Co. v. Wa- 
 ter Co., 598. 
 
 Guiding Star, The, 438. 
 
 Guion V. Ins. Co., 372. 
 
 Gulf C. S. F. R. Co. V. Ellis, 249, 
 260. 
 
 Gulf R. Co. V. James, 731. 
 
 Gunn V. Barry, 290, 296. 
 
 Gunther v. Liverpool & London & 
 
 Globe Ins. Co., 809. 
 Gurney v. Crockett, 444. 
 
 H. 
 
 Hahana, The Paquete, 376. 
 Haddock v. Haddock, 355, 363. 
 Hagar v. Reclamation District, 85, 
 
 236, 253-255, 257, 259. 
 Hager, Ex parte, 395, 445. 
 Hale V. Akers, 359. 
 Hale V. Henkel, 96, 652, 755. 
 Hall V. DeCuir, 22, 51, 64. 
 Hall V. Heightman, 641. 
 Hall V. Wisconsin, 291. 
 Halstead v. Buster, 44, 493. 
 Halstead v. Butler, 58. 
 Hamilton v. South. Nev. G. & M. 
 
 Co., 757. 
 Hamilton v. Vicksburg S. & P. R. 
 
 Co., 24. 
 Hamilton V. Walsh, 498. 
 Hamilton v. Western Land Co., 
 
 507. 
 Hamilton Gaslight & C. Co. v. 
 
 Hamilton, 508, 510. 
 Hammond v. Messenger, 598. 
 Hammond & Co. v. Hastings, 44. 
 Hampton v. Rouse, 367, 372, 731. 
 Hanford v. Davies, 297, 504, 507. 
 Hanks Dental Association v. In- 
 ternational Tooth Crown Co., 
 
 659, 660, 680, 747, 748. 
 Hanley v. Kansas City S. R. Co., 
 
 22, 23. 
 Hanna v. Maas, 800, 801. 
 Hanna v. Mills, 641. 
 Hanna v. Renfro, 758. 
 Hannibal & St. J. R. Co. v. Hu- 
 
 sen, 40, 162. 
 Hannibal & St. Joseph R. Co. v. 
 
 Missouri River Packet Co., 289. 
 Hanrick v. Hanrick, 566, 572, 580, 
 
 581. 
 Hanrick v. Patrick, 44, 372, 493, 
 
 530. 
 
TABLE OF CASES. 
 
 Ixvii 
 
 [kefebences ake to pages.] 
 
 Hapt V. Utah, 118, 123. 
 
 Harder v. Wilson, 372. 
 
 Harding v. Guice, 598. 
 
 Harding v. Illinois, 356, 357. 
 
 Hardy v. Beaty, 617. 
 
 Harkness v. Hyde, 710, 712, 718. 
 
 Harmer v. Gwynne, 602. 
 
 Harper v. Norfolk & W. R. Co., 
 534. 
 
 Harris v. Delaware R., 731. 
 
 Harris v. KUiott, 478. 
 
 Harris v. Gwin, 710. 
 
 Harris v. Hess, 677. ! 
 
 Harris v. United States, 183. 
 
 Harris v. Wall, 748. 
 
 Harrisburg, The, 455. 
 
 Harrison v. Iioan & Trust Co., 
 602. 
 
 Harrison v. Morton, 3581. 
 
 Harrison v. United States, 106. 
 
 Hart, Ex parte, 391. 
 
 Hartell v. Tillmann, 551. 
 
 Hartford Fire Ins. Co. v. Van Du- 
 zer, 364. 
 "■ Hartman v. Greenhow, 291, 513. 
 
 Hartranft v. Weigmann, 773, 800. 
 
 Hartung v. People, 126. 
 
 Harvey v. Tyler, 764, 807. 
 
 Haseltine v. Central Nat. Bank, 
 
 361. 
 Haskins v. Duperoy, 641. 
 Hastings v. Farmer, 198. 
 Hatch V. SpofCord, 719. 
 Hatch V. The Steamoat Boston, 
 
 439. 
 Hathaway v. First National Bank 
 
 of Cambridge, 788, 791. 
 Hauenstein v. Lynham, 529. 
 Havemeyer v. Iowa County, 297. 
 Havnor v. New York, 364, 369. 
 Hawker v. State of New York, 
 
 125. 
 Haws V. "Victoria Copper Min. Co., 
 
 619, 620. 
 Hayes v. Missouri, 279, 282.' 
 Hayward v. Andrews, 550, 598. 
 Hazlehurst v. The Lulu, 443. 
 
 Headman v. Rose, 211. 
 
 Heard v. BaiVd, 607. 
 
 Heaton, The, 444. 
 
 Heber v. State, 126. 
 
 Heckman v. Port Scott, 783. 
 
 Hedrlck v. Atchison, Topeka & 
 Sante Fe Railroad Co., 346, 349. 
 
 Heine v. Levee Commrs., 128, 498. 
 
 Heinsley v. Myers, 498. 
 
 Helwig V. United States, 464, 465, 
 466. 
 
 Hendee v. R. Co., 332, 545, 546. 
 
 Hendee, Receiver, v. Railroad Co., 
 467. 
 
 Hender v. Railroad Co., 467. 
 
 Henderson v. Central Pass. R. Co., 
 246. 
 
 Henderson v. Griffin, 44, 58. 
 
 Henderson v. Hamer, 710. 
 
 Henderson v. Mayor of New York, 
 18, 34. 
 
 Henderson v. Tennessee, 373. 
 
 Hendrick v. Lindsay, 680, 681. 
 
 Henkel V. Cincinnati, 357. 
 
 Hennington v Georgia, 40-42, 161- 
 
 163. 
 Henry v. Sowles, 465, 545. 
 Henwood v. Cheeseman, 636. 
 Hepburn v. Ellzey, 532. 
 Herndon v. Ridgway, 705. 
 Herron v. Dater, 618. 
 Hester v. Kembrough, 618. 
 Heuszy v. Langdon-Heuszy CoaJ 
 
 Min. Co., 753. 
 Hewitt V. Filbert, 370. 
 Hibbard v. People, 90. 
 Hicks V. Butrick, 198. 
 Hicks V. Steegleman, 760. 
 Hickey v. Stewart, 601 621, T25. 
 Higdon V. Heard, 94. 
 Highland Boy Gold Min. Co. v. 
 
 Strickley, 594, 628, 679'. 
 Hill V. Mendenhall, 711. 
 Hill V. Moore, 617. 
 Hill V. United States, 477, 556. 
 Hillary v. Waller, 608, 610. 
 Hilton V. Merritt, 86. 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 [references ABE TO PAGES.] 
 
 Hinde v. Lang-worth, 757. 
 
 Hinde v. Vattier, 43, 52, 58. 
 
 Hine, The, v. Trevor 32. 
 
 Hing V. Crowley, 225. I 
 
 Hinson v. Lott, 20. 
 
 Hipp V. Babin, 127, 597, 606, 607, 
 
 626, 628, 656. 
 Hoag, The, 445. 
 Hoagland v. Wurts, 363, 364. 
 Hobart v. Drogan, 445. 
 Hodge V. Williams, 366. 
 Hodges V. Easton, 735, 736, 762, 
 
 773. 
 Hodges V. "United States, 325, 326. 
 Hodgson V. Thompson, 537. 
 Hodgson V. Vermont, 179, 236, 239, 
 
 240. 
 Hogan T. Page, 763. 
 Hoge V. Canton, 580. 
 Hohorst, Re, 399, 537, 671, 675, 
 
 707. 
 Hoke V. Henderson, 83. 
 Holden v. Hardy, 70, 82, 83, 158, 
 
 169, 176, 179, 186, 236, 238, 269. 
 Holland v. Challen, 598, 602. 
 Hollander v. Fechheimer, 361. 
 HoUingsworth v. Flint, 621. 
 Hollins V. Brlerfield Coal & Iron. 
 
 Co., 602. 
 Hollins V. Coal & Iron Co., 596. 
 Holmes v. Goldsmith & Co., 536. 
 Holt V. Indiana Mfg. Co., 472, 
 
 502, 507, 539, 813. 
 Home Ins. Co. v. Barton, 782. 
 Home Ins. Co. v. Flint, 395. 
 Home Ins. Co. v. New York, 280, 
 
 277. 
 Home Ins. Co. v. Stanchfield, 604, 
 
 605. 
 Home of Friendless v. Rouse, 288, 
 
 2S0. 
 Hooe V. Jamieson, 532, 670. 
 Hooper v. Scheimer, 608, 615, 616, 
 
 657, 679. 
 Hooper V. State of California, 624, 
 
 225, 247. 
 Hopkins v. Orr, 777, 784. 
 
 Hopkins v. United States, 224, 225. 
 Horn V. Volcano Water Co., 729, 
 Horsburg v. Baker, 552. 
 Houghton V. Jones, 750. 
 House V. Reavis, 620. 
 Houseman v. Schooner North Ca- 
 rolina, 446. 
 Houston V. Moore, 318, 330, 360. 
 Houston & Tex. Cent. Railroad 
 
 Co. V. Texas, 285, 291, 298. 
 Howe Mach. Co. v. Gage, 44. 
 Howard v. Bugbee, 294. 
 Howard v. Stillwell & Brice Mfg> 
 
 Co., 749. 
 Howard v. United States, 502, 508, 
 
 524, 525. 
 Howe Mach. Co. v. Edwards, 659. 
 Hoyt V. Thompson, 850. 
 Hudson V. Guestler, 458. 
 Hudson V. Parker, 399. 
 Hughes V. Edwards, 529. 
 Huguley Mfg. Co., Re, 396, 397. 
 Hukill V. R. Co., 681. 
 Hume V. Bowie, 360. 
 Hungarla, Th«, 459. 
 Hung Hang, 382. 
 Hunnicutt v. Peyton, 800. 
 Hunt V. Hunt, 291. 
 Hunter v. Trustees Sandy Hill, 
 
 624. 
 Huntsville, The, 447. 
 Hurley v. Street, 344. 
 Hurmeman v. Grafton, 641. 
 Hurt V. HoUingsworth, 624, 628, 
 
 657, 679, 696. 
 Hurtado v. California, 84, 156, 157, 
 
 176, 179, 235, 236, 238-240. 
 Huse V. Glover, 24, 307. 
 Hutchins v. King, 798, 800. 
 Hyatt vi. New York, 391, 392. 
 Hyde v. Ruble, 578. 
 Hylton V. Brown, 753. 
 
 lasigi, In re, 208. 
 Idaho & O. Land Imp, Co. v. 
 Bradbury, 600. 
 
TABLE OF CASES. 
 
 Ixix 
 
 [EErEEENCES AEE TO PAGES.] 
 
 Illinois Cent. E. Co. v. People, 27. 
 India Boggang v. Kock, 173. 
 Indianapolis & St. Louis R. Co. v. 
 
 Horst, 653-656, 661, 665, 666, 
 
 762-764, 771, 780, 782, 806, 807. 
 Ingalls, Re, 551. 
 Inman Steamship Co. v. Tinker, 
 
 304, 305. 
 Insurance Co. v. Ashby, 448. 
 Insurance Co. v. Bailey, 597. 
 Insurance Co>. v. Bangs, 245. 
 Insurance Co. v. Camper, 604. 
 Insurance Co. v. Canter, 329, 593. 
 Insurance Co. v. Comsitock, 130. 
 Insurance Co. v. Cushman, 618. 
 Insurance Co. v. Dunham, 432, 
 
 440, 448. 
 Insurance Co. v. Polsom, 130. 
 Insurance Co. v. Mordecai, 366. 
 Insurance Co. v. Steam Naviga^ 
 
 tion Co., 458. 
 Insurance Co. v. 356 Bales Cot- 
 ton, 628. 
 Insurance Co. v. Tweed, 791. 
 Interstate Commerce Commission 
 
 V. Baird, 96. 
 Interstate Commerce Comm. v. 
 
 Baltimore & O. R. Co., 482. 
 Interstate Commerce Comm. v. 
 
 Louisville & Nashville R. Co., 
 
 482. 
 Iowa V. Illinois, 337. 
 Iowa C. R. Co. V. Iowa, 157, 176, 
 
 235, 245. 
 Iowa Life Ins. Co. v. Lewis, 268. 
 Iron Silver Miping Co. v. Chees- 
 
 man, 763, 806. 
 Irrawaddy, The, 448. 
 Irvine v. Marshall, 612. 
 
 Jackson v. Allen, 576. 
 Jackson v. Ashton, 699. 
 Jackson v. Boston & Wlorcester 
 
 Railroad, 619. 
 Jackson v. Deyo, 607. 
 
 Jackson v. Hazen, 619, ■• 
 Jackson v. Rightmyre, 619, 620. 
 Jackson v. SIsson, 607. 
 Jackson v. The Magnolia, 32, 406. 
 Jackson v. Twentyman, 537. 
 Jacques v. Collins, 752. 
 Jacobi V. Alabama, 352. 
 Jacobs V. United States, 465. 
 Jacobs, Matter of, 224. 
 Jacobson v. Massachusetts, 172. 
 Jaelm,e v. People of New York,. 
 
 124. 
 Jaffray v. McGhee, 59.. 
 James v. Bowman, 157, 185, 282,, 
 
 284. 
 Janes v. Reynolds, 83. 
 
 Jasigi V. Brown, . 
 
 Jecker v. Montgomery, 416, 458. 
 Jellinek v. Huron Mining Co., 
 
 671, 872, 708. 
 Jenkins v. Lowenthal, 359. 
 Jennings v. Carson, 458. 
 Jennings v Menaugh, 745. 
 J. E. Rumbell, The, 433-439, 442, 
 
 444. 
 Jigiro V. Brush, 27S. 
 John G. Stevens, 435-438, 445. 
 John G. Stephens, The, 409. 
 John Merryman, Ex parte, 135. 
 Johnson v. Accident Ins. Co., 537.. 
 Johnson v. Chicago & Pac. Blev., 
 
 Co., 176. 
 Johnson v. Christian, 601, 608, 621, 
 
 657, 679. 
 Johnson v. Davidson, 628. 
 Johnson v. Elevator Co., 432. 
 Johnson v. Garber, 803. 
 Johnson v. Jones, 621, 756, 801. 
 Johnson v. Keith, 360. 
 Johnson v. Mcintosh, 11. 
 Johnson v. Milwaukee, 264. 
 Johnson v. New York Life Ins. 
 
 Co. 357. 
 Johnson v. Risk, 358, 359. 
 Johnson v. Sayer, 107, 386. 
 Johnston v. Jones, 805. 
 Jones V. Buckell, 782, 807, 808. 
 
ixx 
 
 TABLE OP CASES CITED. 
 
 [bEFEEENCES ABE TO PAGES.] 
 
 Jones V. Grover & Baker Sewing- 
 
 MacMne Co., 800. 
 Jones V. Hunter, 710. 
 Jones V. McMaster, 596, 601, 621, 
 
 ■623, 628, 725. 
 Jones V. Perry, 83. 
 Jones V. Railroad Co., 805i. 
 Jonesi V. Robbins, 102. 
 Jones V. United States, 109, 465. 
 Jones, Ex parte, 671. 
 Jordan t. Lewis, 242. 
 Joy V. St. Louis, 504, 507. 
 Judd T. Harrington, 173. 
 Jugiro V. Brush, 389. 
 Julia Blake, The, 449, 45L 
 Julian V. Central Trust Co., 498, 
 
 545. 
 Julien V. Model Building, L. & I. 
 
 Ass'n, 364. 
 Justice V. Murray, 130. 
 Justices V. United States, 326. 
 
 Kang-Gi-Shun Co., Ex parte, 329. 
 Kansas v. Colorado, 338, 700. 
 Kansas Indians, The, 198. 
 Kansas City v. Hart, 662. 
 Kansas City, Fort Scott & Mem- 
 phis R. R. Co. V. Dougherty, 
 
 54, 586. 
 Kansas City R. Co. v. Prescott, 
 
 262. 
 Kansas Pac. R. R. Co. v. Atchison, 
 
 Topeka, etc., R. R. Co., 508, 524, 
 
 526. 
 Kansas Endowment & Benev. 
 
 Ass'n V. Kansas, 358. 
 Karem v. United States, 157, 185. 
 Karrahoo v. Adams, 198, 537. 
 Kauffman v. Wooters, 176. 
 Kaukauna Water Power Co. v. 
 
 Green Bay & Miss. Canal Co., 
 
 44, 133. 
 Kearney, Ex parte, 392. 
 Keasbey & Mattison Co., Re, 668- 
 
 670. 
 
 Keech v. Hall, 608. 
 
 Keith V. Rockingham, 502. 
 
 Keller v. Ashford, 679-681. 
 
 Kelly V. Jackson, 763. 
 
 Kelly V. O-wen, 210, 2111 
 
 Kelly V. Pittsburgh, 189, 252, 25a 
 
 Kemmler, Ex parte, 115, 116, 157, 
 176. 
 
 Kemmler, Re, 179, 216, 241. 
 
 Kempe's Lessees v. Kennedy, 322. 
 
 Kendall v. Creighton, 43. • 
 
 Kendall v. United States, 397, 399. 
 
 Kendrick v. State, 114. 
 
 Kennard v. Louisiana, 236. 
 
 Kenosha v. Lamson, 63. 
 
 Kentucky v. Powers, 5891 
 
 Kentucky Railroad Tax Cases, 
 253, 254, 256, 260, 274. 
 
 Keokuk & W. R. CO. v. Missouri, 
 168. 
 
 Keokuk Northern Line Packet Co. 
 V. Keokuk, 307, 310. 
 
 Kern v. Hendekoper, 567. 
 
 Kercher v. Murrary, 657. 
 
 Keys V. Grout, 551. 
 
 Keystone v. Manganese & Iron 
 Co. V. Martin, 361. 
 
 Kidd V. Pearson, 174. 
 
 Kigman & Co. v. Western Manu- 
 facturing Co., 781-783. 
 
 Kilburn v. Woodworth, 701. 
 
 Kilgman & Co. v. Western Mfg. 
 Co., 813. 
 
 Killian V. Ebbinghaus, 596, 597, 
 606, 628. 
 
 Kimball v. Evans, 360. 
 
 Kimber v. Younger, 695, 696. 
 
 King V. Eraser, 636. 
 
 King V. Mullins, 189, 261. 
 
 King V. Portland, 256. 
 
 Kingman & Co. v. Western Manu- 
 facturing Co., 402. 
 
 Kinney v. Columbia Savings & 
 Loan Association, 731. 
 
 Kirby v. United States, 111, 
 
 Kircher v. Moody, 608. 
 
 Kircher v. Murray, 613. 
 
TABLE OP CASES. 
 
 ]yyi 
 
 [befeeences are to pages.] 
 
 Kirk V. Hamilton, 623, 6zi. 
 Kitchen -v. Randolph, 348, 368, 
 
 369. 
 Kittel V. Railway Co., .602. 
 Klinger v. Missouri, 359. 
 Knapp, Stout & Co. vi. McCaffrey, 
 
 440. 
 Knickerbocker L. Ins. Co. v. Pea- 
 
 dleton, 367. 
 Knickerbocker Ins. Co. v. Comr 
 
 stock, 132. 
 Knight V. United States Land 
 
 Ass'n, 11, 26, 612, 614. 
 Knox V. Exchange Bank, 297, 298. 
 Knox V. Lee, 14, 15-17. 
 Knox V. Summers, 710, 711. 
 Knox County v. Aspinwall, 496, 
 
 497, 890. 
 Knoxville Iron Co. v. Harbison, 
 
 171. 
 Knoxville Water Co. v. Knoxville, 
 
 510, 518. 
 Koenigsberg v. Richmond Silver 
 
 Min. Co., 545. 
 Kohl V. Lehlblack, 742. 
 Kohl V. United States, 132, 134, 
 
 478, 479, 570, 649. 
 Kolze V. Hoadley, 534. 
 Koshkonong v. Burton, 295. 
 Kreitz v. Behrensmeyer, 211. 
 Kring v. Missouri, 2, 122, 123. 
 Kurtz V. Strauss, 551. 
 
 L. 
 
 Laber v. Cooper, 763, 806. 
 
 Lacassagne v. , Chapins, 606. 
 
 Lackey v. United States, 157. 
 
 La Conflance Campaigne d' As- 
 surance Contre I'lncendie v. 
 Hall, 576. 
 
 Lacroix v. Lyons, 537. 
 
 Lade v. Holford, 608-610. 
 
 Lagett v. Tollerny, 242. 
 
 Laidly v. Huntington, 582. 
 
 Laird v. Indemnity, Mutual Ma- 
 rine Assur. Co., 537. 
 
 Lake v. Munford, 758. 
 Lake County v. Dudley, 535. 
 Lake National Bank v. Wolfebor- 
 
 ough Bank, 552. 
 Lakeshore & C. R. Co. y. Ohio, 
 
 30, 31. 
 Lake Shore & M. S. R. Co. v. 
 
 Prentice, 44. 
 Lake Shore & Michigan Southern 
 Ry. Cd. V. State ex rel. Law- 
 rence, 39-42, 162. 
 Lamaster v. Keeler, 653, 663, 664, 
 
 785. 
 Lampasas v. Bell, 373. 
 Lanahan v. Sears, 44. 
 Landa v. Obert, 663. 
 Langdeau v. Hanes, 614. 
 Langdon v. Sherwood, 608, 615, 
 
 616, 618, 657, 679. 
 Lange, Ex parte, 86, 119, 381, 383, 
 
 385. 
 Langley v Snyed, 608, 610. 
 Laramie County v. Albany Co., 
 
 253. 
 Lawler v. Walker, 297, 357. 
 Lawton v. Steele, 32. 
 Layton, v. Misisouri, 352. 
 League v. Egery, 44, 52, 57. 
 League v. Texas, 189. 
 Leather Mfg., National Bank v. 
 
 Cooper, 533, 670. 
 Leavenworth County v. Barnes, 
 
 55. 
 Leavenworth L. & G. R. R. Co. v. 
 
 United States, 189. 
 Le Bois V. Bramell,-614. 
 Lederer v. Rankin, 675. 
 Lee v. Insurance Co., 444. 
 Lee V. Johnson, 363. 
 Lee V. United States, 852. 
 Leeper v. Texas, 55, 157, 176, 236, 
 
 357. 
 Lees V. United States, 91-93, 101, 
 
 463, 465, 466, 754, 801 808. 
 Lee County v. Rogers, 57, 64. 
 Lee County v. United States, 63. 
 Legg V. McNeil, 729. 
 
Ixxii 
 
 TABLE OF CASES CITED. 
 
 [EEPEEBNCES ABE TO PAGES.] 
 
 Leggett V. Postley, 92, 93. 
 
 L*hmen v. Dickson, 77, 791. 
 
 Leigh V. Green, 35^ 
 
 OLeigh Water Co- v. E^ton, 297. 
 
 Leiper v. Texas, 179, 351. 
 
 Lieisy v. Hardin, 18, 20, 23, 24, 
 
 350. 
 Lieloup V. Mobile, 23. 
 Leloup V. Port of Mobile, 20, 21. 
 Lrennon, Ex parte, 383. 
 Lent V. Tillson, 253-255, 257, 259. 
 Leonard v. Grant, 211. 
 Leonard v. Poole, 173. 
 Lerma v. Stevenson, 601, 621. 
 Letitia v. Wilson, 805,. 
 Levy V. Fitzpatrick, 704. 
 Lewis V. Cocks, 596, 597, 606, 628. 
 Lewis V. Harwood, 729. 
 Leiwis V. United States, 742, 743. 
 L'Hote V. New Orleans, 158. 
 Liberty No. 4, The, 445. 
 License Cases, 10, 145, 150, 188. 
 Lidia Powler, 445. 
 Life & Fire Ins. Co. v. Adams, 
 
 400. 
 Life & Fire Ins. Co. v. Wilson, 
 
 400. 
 Lifflngwell v. Warren, 57. 
 Lilienthal v. United States, 470. 
 Lincoln v. French, 611, 628. 
 Lincoln v. Power, 130, 665, 762, 
 
 798. 
 Lincoln County v. Luning, 44. 
 Lindsay v. Bank, 594, 595, 599, 
 
 600, 612, 626, 628,. 678, 690. 
 Uppincott V. Mitchell, 58. 
 Litchfield v. Railroad Co., 621. 
 Littlefield v. Perry, 550. 
 Little V. Giles, 578. 
 Little Gold Wash & W. Co. v. 
 
 Keys, 504, 507. 
 Liverpool & G. W. Steam Co. v. 
 
 Phoenix Insurance Co., 409, 
 
 415. 
 Liverpool Ins. Co. v. Massachu- 
 setts, 226, 2717:. 
 Livingston v. Harris, 92,' 93. 
 
 Livingston v. Jefeerson, 636, 638, 
 
 672. 
 Livingston v. Story, 636. 
 Livingston v. Tompkins, 552. 
 Livingston v. Van Ingen, 322. 
 Lochner v. New York, 169, 170. 
 Locke V. New Orleans, 121. 
 Lockey V. United States, 185. 
 Lockhart v. Johnson, 608, 657. 
 Lockwood, Ex parte, 231. 
 Lodge V. Twell, 361. 
 Loeb v. -Trustees of Columbia 
 
 Township, 57, 64, 535. 
 Logan v. United States, 109, 119, 
 
 282i. 
 Lloyd V. Fulton, 59. 
 Long Island Water Supply Co. v. 
 
 Brooklyn, 245, 246. 
 Lord V. Goodall N. & P. S. S. Co., 
 
 23. 
 Lottawana, The, 406, 407, 409, 412, 
 
 417, 431, 433, 434, 439, 440, 442, 
 
 443, 459. 
 Lovejoy v. United States 741 761. 
 Low V. Hallett 636. 
 Lowenstein v. Carey, 752. 
 Lowry v. Ry. Co., 780. 
 Liouisa Jane, The, 447. 
 Louisiana v. Mississippi, 337. 
 Louisiana v. New Orleans', 290, 
 
 293-295. 
 Louisiana v. Pilsbury, 44, 57, 63, 
 
 64. 
 Louisiana v. Police Board, 295. 
 Louisiana vl. St. Martin's Parish, 
 
 25, 290, 292, 296. 
 Louisiana v. Texas, 41, 339. 
 Louisiana Board -of Liquidation 
 
 V. McComb, 514. 
 Louisville & Nashville Railroad 
 
 Co. V. Comrnonwealth of Ken- 
 tucky, 157, 158, 162, 163, 166, 
 
 167, 189. 
 Louisville & Nashville Railroad 
 
 Co. V. Ide, 578. 
 Liouisville & Nashville Railroad 
 
 Co. V. Palmes, 55, 64, 286. 
 
TABLE OP CASES. 
 
 Ixxiii 
 
 [EBFEBENOES ABE TO PAGES.] 
 
 Xioulsville & Nashville R. R. Co. 
 
 V. Schmidt, 176, 244, 245. 
 LoulavUle & Nashville R. Co. v. 
 
 Wangelm, 578. 
 Xiouisville Gas Co. v. Cltlzeius' 
 
 Gas Light Co., 55, 64, 286, 290. 
 Xiouisville, New Albany & Chicago 
 
 Ry. Co. V. Louisville Trust Co., 
 
 532, 545. 
 Louisville, New Orleans & Texas 
 
 Ry. Co. V. Mississippi, 22, 44. 
 Louisville Underwriters, Eoc par- 
 te, 456, 675. 
 L. P. Dayton, 441. 
 Lucker v. Phoenix Assur. Co., 753. 
 Lucy Anne, The, 444. 
 Ludling V. Chaffle, 373. 
 Luhrs V. Bimer, 211. 
 Lulu, The, 449. 
 Luther v. Borden, 766. 
 Luxton V. North River Bridge Co., 
 
 16, 132, 478, 653, 656, 657, 680. 
 Lynch v. Bailey 540. 
 Xiynes v. The State, 347. 
 Lynn v. State, 126. 
 Lyng V. Michigan, 20, 21, 23. 
 
 M. 
 
 Mackin v. United States, 86, 88, 
 
 102, 105. 
 Macomber v. Thompson, 444. 
 Madison v. Warren, 789. 
 Madisonville Traction Co. v. St. 
 
 Bernard Mln. Co., 333, 568-571, 
 
 573, 649. 
 Maddox v. Craig, 245. 
 Maggie Hammond, The, 422. 
 M:agniac v. Thompson, 738, 761, 
 
 808. 
 Magnolia, The, 408, 420-422, 427, 
 
 430, 439, 441, 452, 453. 
 Magoun v. Illinois Trust & Sav. 
 
 Bank, 156, 260. 
 Main, The, 452. 
 Maine v. Grand Trunk R. Co., 
 
 271, 274. 
 
 Mali V. Hudson County Jail 
 
 Keeper, 389. 
 Mallett V. North Carolina, 125, 
 
 352. 
 Malone v,. Richmond & Danville 
 
 R. Co., 583, 587. 
 Maloney v. Barkley, 92. 
 Manchester v. Massachusetts, 32, 
 
 428, 465. 
 Mandeville v. Wilson, 732. 
 Manly v. Hewlett, 616. 
 Manley v. Park, 353, 354. 
 Manro v. Almeida, 458. 
 Many, Ex parte, 400. 
 Marbury v. Madison, 46 313, 317, 
 
 322, 325, 326, 334. 
 Marchand v. Griffon, 763. 
 Marden v. Star, 502. 
 Mardis v. Terrell, 691. 
 Mariana Flora, The, 417. 
 Marquand, Ex parte, 465. 
 Marsh v. Nichols, 551. 
 Marshall v. Holmes, 567. 
 Marshall v. Hubbard, 809. 
 Marshall v. Vicksburg, 552. 
 Martin v. Acker, 444. 
 Martin v. Baltimore & Ohio R. 
 
 Co., 584, 589. 
 Martin v. Hunter, 529, 628. 
 Martin v. Hunter's Lessees, 48, 49, 
 
 64, 70, 144, 145, 188, 316, 318, 
 
 320, 321, 325, 327, 328, 330. 333, 
 
 343, 496. 
 Martin v. Parker, 617. 
 Martin v. Snyder, 572. 
 Martin v. Waddell, 10, 26. 
 Martinton v. Fairbanks, 788, 792. 
 Marvin v. Front, 357. 
 Maryland v. Baldwin, 677. 
 Massachusetts v. Western Union 
 
 Tel. Co., 271. 
 Mason v. Missouri, 280. 
 Mason, Ex -parte, 107, 386. 
 Mason City & Fort Dodge R. Co. 
 
 V. Boynton, 570. 
 Massachusetts, Ex parte, 401. 
 Massini v. Cavozos, 365, 367. 
 
Ixxiv 
 
 TABLE OF CASES CITED. 
 
 [EEPERENCES ABE TO PAGES.] 
 
 Masterson v. Herndon, 373. 
 
 M. & St. L. R. Co. V. Beckwith, 
 
 274. 
 Matthews v. Offley, 462, 465. 
 Mattie May, The, 452. 
 Mattingly v. Northwestern Vir- 
 ginia Railroad Co., 576. 
 Mattox V. United States, 111-114, 
 
 780-782. 
 Maxwell v. Dow, 70, 71, 156, 157, 
 
 176, 186, 189, 214, 316, 230, 233- 
 
 236, 239-241. 
 Maxwell v. Newbold, 350. 
 Mayer v. McLure, 372. 
 Mayfield, Ex parte, 385, 386. 
 Maynard v. Hill, 291. 
 Mayor v.. Lord, 497. 
 Mayor v. Miller, 25. 
 May & Co. v. New Orleans, 300, 
 
 301. 
 May Queen, The, 444. 
 McAllister v. United States, 148, 
 
 329. 
 McAndrews v. Thatcher, 448. 
 McCain v. Des Moines, 504. 
 McCall vi California, 20. 
 McCall V. Carpenter, 614. 
 McCall V. People, 278. 
 McCartney v. Earl, 332. 
 MoClaughry v. Doming, 386. 
 McClunny y. Silliman, 44. 
 McComb V. Knox County, 361. 
 McConnochie v. Kerr, 447. 
 McCool V. Smith, 621. 
 McCormick v. Sull'ivan, 322. 
 McCormick v. Sulllvant, 618. 
 McCormick Harvesting Machine 
 
 Co. V. Walthers, 668, 670. 
 McConville v. Gilmour, 546. 
 McCracken v. Hayward, 2, 285, 
 
 290, 293, 294. 
 McCready v. Virginia, 32, 227, 
 
 228, 428. 
 McCulloch V. Maryland, 12-16, 25, 
 
 47-49, 51, 64, 146, 151, 186, 261, 
 
 262, 315, 316, 324, 325, 327, 333, 
 
 350, 353, 354, 627. 
 
 McCulloch V. Virginia, 55, 64, 350. 
 McDaniel v. Taylor, 540, 543. 
 McDonald v. Hovey, 474. 
 McDonald v. Massachusetts, 116. 
 M'Donough V. Dannery, 458. 
 McDonough v. Millaudon, 465. 
 McBlrath v. United States, 130. 
 McBlvaine v. Brush, 44, 70, 176, 
 
 186, 233, 234. 
 McGahey v. Virginia, 55, 64, 294, 
 
 295. 
 McGehee v. Mathis, 290. 
 McGlenchy v. Barrows, 90. 
 McGoon V. Scales, 262, 530. 
 McGourkey v. Toledo & Ohio C. 
 
 Ry. Co., 361. 
 McGuire v. Blount, 764. 
 Mcllvalne v. Brush, 241. 
 Mcllvaine'' v. Coxe's Lessee, 10. 
 McKeen v. Belancy, 44, 52, 58, 672. 
 McKenna v. Fisk, 636, 668, 672, 
 
 694. 
 McKinlay v. Norrish, 440. 
 McKinney v. Saviego, 211. 
 M'Lanahan v. Universal Ins. Co., 
 
 761. 
 McLaughlin v. Chadwell, 275. 
 McLish V. Robb, 321. 
 McMillen v. Anderson, 157. 
 McLeary v. Dawson, 617. 
 McMullen v. Anderson, 236. 
 McMullen v. Bowser, 550. 
 McMullen v. Ferrum Min. Co., 352. 
 McMullin V. Blackburn, 447. 
 McNeil V. Holbrook, 744, 749. 
 McNeil, EJx parte, 17, 24, 33, 51, 
 
 445, 446. 
 McNulta V. Lochridge, 373. 
 McNulty V. Batty, 485. 
 McNulty V. California, 176, 179, 
 
 236, 239, 240. 
 McPherson v. Blacker, 283. 
 Meagher v. Minnesota Thresher 
 
 Mfg. Co., 360. 
 Meaderland Life Ins. Co. v. HaJl, 
 
 677. 
 Medley, Ex parte, 124, 125. 
 
TABLE OP CASES. 
 
 Ixxv 
 
 [BEFEBENCES ABE TO PAGES.]' 
 
 Medley, Re, 126. 
 
 Mellea v. Moline Malleable Iron 
 
 Works, 671, 708-. 
 Memphis v. Brown, 294, 497. 
 Memiphis v. United States, 294. 
 Memphis Sav. Bank v. Houchens, 
 
 707. 
 Menard v. Goggan, 531. 
 Menge v. Madrid, 438. 
 Mercantile Ins. Co. v. Folsom, 
 
 788, 790, 791. 
 Mercantile Trust & Deposit Co. 
 
 V. Columbus, 510, 517. 
 Mercantile Trust Co. v. Atlantic 
 
 & P. R. Co., 729. 
 Mercer County v. Hackett, 45. 
 Merchants Cotton Press & Stor- 
 age Co. V. Ins. Co. of North Amer- 
 ica, 578. 
 Merchants' Exchange Bank v. Mc- 
 
 Graw, 803. 
 Merewether v. Garrett, 261. 
 Merino, The, 456, 457, 459. 
 Metcalf V. American School Fur- 
 niture Co., 558. 
 Metcalf V. "Watertown, 504, 506, 
 
 507. 
 Meteor, The, 418. 
 Mletropolitan Nat. Bank of New 
 York V. Connecticut Mut. Life 
 Ins. Co., 44. 
 Mexican National R. Co. v. David- 
 son, 534, 569, 573. 
 Mexican Central Ry. Co. v. Du- 
 
 thie, 730-732. 
 Mexican Central R. Co. v. Bck- 
 
 man, 534. 
 Mexican Central Ry. Co. v. Pink- 
 ney, 658, 702, 706, 710-713, 718, 
 732. 
 Mleyer v. Kuhn, 708. 
 Meyer v. Richmond, 354. 
 Meyer v. Western Car Co., 474. 
 Meyers v. Hittlnger, 545, 546. 
 Mezes v. Greer, 'BOll 621. 
 Michigan Cent. R. R. Co. v. My- 
 rick, 45. 
 
 Michigan Central R. v. Power, 
 
 509. 
 Michigan Insurance Bank v. Elr- 
 
 dred, 721, 798, 799, 810. 
 Michigan Land & Lumber Co. vi. 
 
 Rust, 612, 613, 
 Michigan Sugar Col v. Dlx, 351» 
 
 355. 
 Mickey v. Stratton, 619. 
 Middleton v. McCrew, 5&, 
 Mlldenhaus Case, 389. 
 Millen v. Davidson, 253. 
 Miles V. Caldwell, 43. 
 Miller v. Alexander, 617. 
 Miller v. Cornwall Railroad Co., 
 
 349, 350. 
 Miller v. Geist, 617, 618. 
 Miller v. Gist, 621. 
 Miller v. Life Ins. Co., 130. 
 Miller v. McKenzie, 367. 
 Miller v. Texas, 70, 186, 232, 350, 
 
 352, 365. 
 Miller v. Texas & Pacific, 620. 
 Milligan, Ex parte, 83, 107, 135, 
 
 136, 381, 387 392. 
 Mills, Ei parte, 105. 
 Mineral Range R. Co. v. Detroit 
 
 & L. S. Cooper Co., 570. 
 Mining Co. v. Pennsylvania, 248. 
 Mining Co. v. Rutter, 504. 
 Mining Co. v. Turck, 504. 
 Minneapolis & St. L. Rl Co. v. 
 
 Beckwith, 249, 260, 267. 
 Minneapolis & St. L. R. Co. v. 
 
 Herrick, 264, 265. 
 Minnesota v. Barber, 33, 36, 40,. 
 
 162. 
 Minnesota v. Brundage, 389. 
 Minnesota v. Northern Securities 
 
 Co., 335, 558, 569, 570, 573, 574, 
 
 700, 719. 
 Minor V. Happers&tt, 69, 185, 191,. 
 195, 196, 213, 214, 216, 218, 231,. 
 282. 
 Minot v. Philadelphia, 261. 
 Minot V. Philadelphia W. & B. R. 
 Co., 274. 
 
Isxvi 
 
 TABLE OF CASES CITED. 
 
 [EEFEBENCES ABE TO PAGES.] 
 
 Mississippi & M. R. Co. v. Mo- 
 CTure, 296, 297. 
 
 Mississippi & M. R. Co. v. Rock, 
 297. 
 
 Mississippi & R. River Boom. Co. 
 V. Patterson, 570, 649. 
 
 Missouri v. Andrino, 373. 
 
 Missouri v. Illinois, 337. 
 
 Missouri v. Iowa, 329, 337. 
 
 Missouri v. Kentucky, 329, 337. 
 
 Missouri, Kansas & Texas Ry. 
 Co. V. Haber, 162. 
 
 Missouri, Kansas & Texas Ry. Co. 
 V. May, 280. 
 
 Missouri Pacific R. Co. v. Chicago 
 & Alton R. Co., 665, 780, 782. 
 
 Missouri Pacific R. Co. v. Fitzger- 
 ald, 588. 
 
 Missouri Pac. R. Co. v. Humes, 
 264, 267. 
 
 Missouri Pacific R. Co. v. Mackey, 
 260, 264. 
 
 Missouri Pacific R. Co. v. Ne- 
 braska, 248. 
 
 Mitchell V. Clark, 295, 358. 
 
 Mitchell V. Harmony, 738. 
 
 Mitchell V. Leavenworth, 262. 
 
 Mitchell V. Reynolds, 635. 
 
 Mobile V. Watson, 296. 
 
 Mobile & Ohio R. Co. v. Tennes- 
 see, 286. 
 
 Mobile County v. Kimball, 17, 21, 
 23, 24, 31, 253. 
 
 Mobile L. Ins. Co. v. Brame, 455. 
 
 Mobile Trade Co. v. Lott, 304, 306. 
 
 Mohr V. Lemle, 662. 
 
 Mollan V. Torrance, 545. 
 
 Money v. Leach, 88. 
 
 Moaongahela Navigation Co. v. 
 United States, 18, 135, 478. 
 
 Montague & Co. v. Lowry, 558, 
 560, 676. 
 
 Montalet v. Murray, 537, 699. 
 
 Montclair v. Dana, 809. 
 
 Montello, The, 33, 420, 421, 424, 
 427. 
 
 Montfort v. Hughes, 692. 
 
 Montgomery v. Portland, 31. 
 
 Montijo V. Owen, 601, 621. 
 
 Moody V. Parr, 607. 
 
 Mooney v. Clark, 168. 
 
 Moore v. Bank, 757. 
 
 Moores v. Citizens' National Bank 
 
 of Piqua, 44. 
 Moore v. Crawford, 620. 
 Moore v. Mississippi, 354. 
 Moore v. Robbins, 361. 
 Moore v. Simonds, 365. 
 Moore v. United States, 69, 196. 
 Moran v. New Orleans, 21. 
 Moran v. Sturgess, 567, 568. 
 More V. Bennett, 173. 
 More V. Steinbach, 598. 
 Morely v. Lake Shore &' M. S. R. 
 
 Co., 44. 
 Morewood v. Enequist, 440, 451. 
 Morey v. Lockhart, 588. 
 Morgan v. Curtenius, 63. 
 Morgan v. Gay, 732. 
 Morgan v. Morgan, 545. 
 Morgan's R. R. & Steamship. Co. 
 
 v. Louisiana, 41. 
 Morgan's Steamship Co. v. Loui- 
 siana Board of Health, 24, 162. 
 Mormon Church v. United States, 
 
 148. 
 Morning Journal Assoc, v. Smith, 
 
 677. 
 Morris v. Giles, 714, 719. 
 Morris v. United States, 470, 471, 
 
 549. 
 Morrison v. Watson, 350, 352. 
 Morris Run. Coal Co. v. Barclay 
 
 Coal Co., 173. 
 Morrow v. Brinkley, 358. 
 Morrow v. Whitney, 614. 
 Moses V. Bank, 59. 
 Moses V. Wboster, 682. 
 Moses Taylor, The, 431, 432, 434, 
 
 440, 441, 451. 
 Motherwell v. United States, 393. 
 Motes V. United States, 112. 
 
TABLE OP CASES. 
 
 Ixxvii 
 
 [befekences aee to pages.] 
 
 Moulder v. Forest, 367. 
 Mountain View Mining & Milling 
 
 Co. V. M'cFadden, 574. 
 Mowry v. Whitney, 648. 
 Mugler V. Kansas, 157, 158, 162, 
 
 189, 231. 
 Mulcahey v. Lake Erie & W. W. 
 
 R. R. Co., 659, 747. 
 Mulehey v. Religious Soc, 692. 
 Muller V. Ehlers, 800. 
 Munford v. Wlardell, 11, 769, 770, 
 
 772, 773, 800. 
 Munn V. Illinois, 157, 158, 162, 
 
 164-168, 189. 
 Munsey v. Clougli, 391, 392. 
 Muntz V. A Raft of Timber, 447. 
 Murdock v. Memphis, 333, 344, 
 
 351, 352, 354, 358-360. 
 Murphy v. Packer, 618. 
 Murphy v. Ramsey, 148. 
 Murphy v. Stewart, 777, 778. 
 Murray v. Charleston, 293, 296. 
 Murray v. Hoboken Liand Co., 83, 
 
 85, 86. 
 Murray v. Louisiana, 590. 
 Murray v. Railroad Co., 61. 
 Muse V. Arlington Hotel, 506, 529. 
 Mussen v. Price, 641. 
 Mussina v. Cavazos, 372, 813. 
 Mutual Life Ins. Co. v. HUlman, 
 
 741. 
 Mutual Life Ins. Co. v. McGrew, 
 
 344, 349-353, 355. 
 Myers v. Hlttlnger, 332, 467. 
 Myrick v. Mich. Central R. Co., 61. 
 Myricks v. Wells, 758. 
 
 N. 
 
 Narragansett Indians, In re, 11. 
 
 Nashua Savings Bank Vw Anglo- 
 American Land Mortgage & 
 Agency Co., 745, 749. 
 
 Nashville v. Llnck, 163. 
 
 Nashville v. Thomas, 275. 
 
 Nashville, The, 465. 
 
 Nashville, C. & St. L. R. Co. v. 
 Alabama, 24, 162. 
 
 Nashville, C. & St. L. R. Co. v. 
 
 Franklin County, 274. 
 National Bank of Commerce of 
 
 St. Louis V. National Bank of 
 
 Commerce of New York, 367. 
 National Cash Register v. Leland, 
 
 659, 747. 
 National Cotton Oil Co. v. Texas, 
 
 173. 
 National Accident Society - v. 
 
 Spiro, 710, 712, 714. 
 National Mut. Bldg. & Loan Ass'n 
 
 V. Brahan, 297, 354. 
 National Steamship Co. v. Tug- 
 man, 537, 567. 
 Nations v. Johnson, 349. 
 Navigation Co. v. Homestead Co., 
 
 322. 
 Navigation Co. v. United States, 
 
 31. 
 Neal V. Delaware, 157, 194, 200, 
 
 251, 263, 278, 354, 355 358, 590. 
 Nebraska v. Iowa, 337. 
 Nell V. Kees, 617. 
 Neilson v. Garza, 34, 35. 
 Nelson v. First Nat. Bank, 536. 
 Nelson v. Leland, 32, 420-422, 
 
 434, 439, 441, 453, 459. 
 Nelson v. United States, 96 652. 
 Nesmith v. Sheldon, 59. 
 Nester v. Brewing Co., 173. 
 Neves v. Scott, 45, 506. 
 Newcomb v. Wood, 664, 780, 782. 
 Newman v. Fowler, 692. 
 Newman, Ebc parte, 399, 400. 
 Newburyport Water Co. v. New- 
 
 buryport, 507. 
 Newport Light Co. v. Newport, 
 
 358. 
 Newport News & Mississippi Val- 
 ley Co. r. Pace, 801, 805, 807. 
 .Newton v. New York, etc., R. R. 
 
 Co., 168. 
 New Buffalo v. Cambria Iron 
 
 Works Co., 63. 
 New England Ins. Co. v. Brig 
 
 Sarah Ann, 452. 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 
 [BEFEEENCES AEE TO PAGES.] 
 
 New Jersey v. New York, 336. 
 New Jersey v. Wilson, 384. 
 New Jersey v. Yard, 291, 364. 
 New Mexico ex rel. Caledonia 
 
 Coal Co. V. Baker, 658, 702, 705, 
 
 718. 
 New Orleans v. Benjanmin, 504, 
 
 506, 508. 
 New Orleans v. Construction Co., 
 
 653. 
 New Orleans v. Fish, 545. 
 New Orleans v. New Orleans Wa- 
 terworks Co., 359. 
 New Orleans v. Quinlan, 535. 
 New Orleans v. United States, 605, 
 
 614. 
 New Orleans v. Winter, 532. 
 New Orleans Gas Liglit Co. v. 
 
 Louisiana Light & H. P. Mfg. 
 
 Co., 38, 290. 
 New Orleans Ins. Asso. v. Piag- 
 
 gio, 771. 
 New Orleans M. & F. R. Co. v. 
 
 Mississippi, 566. 
 New Orleans Pac. R. Co. v. Par- 
 ker, 543. 
 New Orleans Waterworks Co. v. 
 
 Louisiana Sugar Ref. Co., 297, 
 
 358, 518. 
 New Orleans Water Co. v. Louisi- 
 ana, 507. 
 New Orleans Water Works Co. v. 
 
 Rivers, 290. 
 New York v. Commissioners of 
 
 Texas, 262. 
 New York v. Eno, 388, 389. 
 New York v. Hoffman, 262. 
 New York v. Miln, 145, 149, 188. 
 New York Indians, The, 198. 
 New York & New England R. R. 
 
 Co. V. Town of Bristol, 168. 
 New York & P. R. Co., Elx parte, 
 
 397. 
 New York Fourth Nat. Bank v. 
 
 Francklin, 44. 
 New York, Lake Brie & Wtestem 
 
 R. Co. v. Madison, 808, 809. 
 
 New York, D. E. & W. R. Co. V. 
 
 Winter, 763. 
 New York Life Ins. Ct>. v. Bangs, 
 
 604, 702. 
 New York Life Ins. Co. v. Crav- 
 
 vens, 61. 
 New York, N. H. & H. R. Co. v. 
 
 New York, 42, 162. 
 Nielsen, Ex parte, 383. 
 Niphous' Crew, The, 444. 
 Noonan v. Caledonia Gold Mining 
 
 Co., 757. 
 Noonan v. Lee, 506. 
 Norfolk & Western R. Co. v. Penn- 
 sylvania, 20, 277, 278. 
 Norris v. Jackson, 7'87, 791-794. 
 North American Transp. & T. Co. 
 
 V. Morris, 541. 
 North Cent. R. Co. v. Jackson, 261. 
 North Pennsylvania R Co. v. Com- 
 mercial Nat. Bank, 809. 
 Northern P. R. Co. v. Babcock, 
 
 646. 
 Northern Pacific R. Ca. v. Mares, 
 
 765. 
 Northern Pac. R. Co. v. Rockue, 
 
 262. 
 Northern Pac. Ry. Co. v. Soder- 
 
 berg, 502. 
 Northern Pac. R. Co. v. Walker, 
 
 540, 542. 
 Northern Securities Co. v. United 
 
 States, 18, 225, 558, 560, 627. 
 Northern Transp. Co. v. Chicago, 
 
 29, 134. 
 Northwestern Fertilizing Co. v. 
 
 Hyde Park, 289.' 
 Northwestern Mut. Life Ins. Co. 
 
 V. Muskogee Nat. Bank, 806i 
 Northwestern Packet Co. v. Ins. 
 
 Co., 364. 
 Northwestern Union Packet Co. 
 
 V. Clough, 802. 
 Northwestern Union Packet Co. 
 
 V. St. Louis, 307. 
 Northwest University v. People, 
 
 291, 298. 
 
TABIjE or CASES. 
 
 Ixxix 
 
 Norton v. Dover, 731. 
 
 Norwich. & N. Y. Transp. Co. v. 
 
 Wright, 412, 456. 
 Norwich & W. R. Co. v. Johnson, 
 
 373. 
 Norwood V. Baker, 246. 
 Norwood V. New York, etc., R. R. 
 
 Co., 168. 
 Norwood V. Parker, 258, 
 Novion V. Hallett, 456. 
 Nudd V. Barrows, 653-656, 661, 
 
 781, 762, 764, 768. 
 Nutting V. Massachusetts, 449. 
 
 0. 
 
 Gates V. First Nat. Bank, 60. 
 Dates V. First Nat. Bank of Mont 
 
 gomery, 45. 
 O'Brien v. Commonwealth, 114. 
 Ocean Spray, The, 444. 
 O'Connell y. Reed, 654, 655. 
 O'Connor v. Texas, 566. 
 O'Dowd V. Russell, 372, 373. 
 Offit V. Vick, 661, 768. 
 Ogden V. Saunders, 285, 290. 
 Ohio V. Thomas, 389. 
 Ohio Ins. & Tr. Co. v. Debolt, 57, 
 
 64. 
 Oil Co. v. Adam, 173. 
 Olcott v. Fond du Lac County, 63, 
 " 297. 
 
 Olcott V. Supervisors, 51, 57, 64. 
 Olcott V. Supervisors of Fond du 
 
 Liac County, 62. 
 Old Dominion S. S. Co. v. Gil- 
 more, 455. 
 Olive v. Adams, 624. 
 Olsen V. Smith, 17, 18, 24, 33, 446. 
 Onoko, The, 455. 
 
 Opinion of Attorney General Ta- 
 ney, 198. 
 Orient Insurance Co. v. Daggs, 
 
 235. 
 Origet V. United States, 4lO. 
 Orleans v. Phoebus, 43, 445. 
 Oi-msby v. "Webb, 763. 
 Orr V. Hodgson, 529. i 
 
 ABE TO PAGES.] 
 
 Orvis V. Powell, 33. ■ 
 
 Orleans v. Phoebus, 445. 
 
 Osborn v. Bank, 49, 312, 322, 499, 
 
 509, 628. 
 Osborn v. The Bank of The United 
 
 States, 262, 493, 496, 503, 526, 
 
 527. 
 Osborn v. Florida, 56. 
 Oscanyon v. Winchester Repeats 
 
 ing Arms Co., 744, 795. 
 Oscoda, The, 440, 445. 
 Ottawa, The, 436. 
 Overby v. Gordon, 543. 
 Owens V. State, 114. 
 Owings V. Norwood, 373. 
 Owyhee Land Co. v. Taulphaus, 
 ■ 751. 
 Oxley Stove Co. v. Butler County, 
 
 350, 351, 355. 
 
 Pacific Coast S. S. Co. v. Railroad 
 
 Com'rs, 23. 
 Pacific BJlectric R. Co. v. Los An- 
 geles, 508. 
 Pacific Express Co. v. Malin & 
 
 Colvin, 727. 
 Pacific Express Co. v. Seibert, 260, 
 
 277. 
 Pacific Nat. Bank of Boston v. 
 
 Mixter, 367, 546. 
 Pacific R. R. Co. v. Maguire, 29, 
 
 291. 
 Pacific Railway Comm., In re, 89. 
 Packet Co. v. Aiken, 310. 
 Packet Cot. v. Cattletsiburg, 307. 
 Packet Co. v. Rock Island Bridge 
 
 Co., 434-436. 
 Page v. Mississippi, 635. 
 Page V. Parker, 692. 
 Paige V. Lorlng, 777. 
 Paine v. Warren, 753. 
 Palmer v. McMahon, 56, 253, 254, 
 
 256. 
 Palmyra, The, 417, 418, 456. 
 Panama" Railroad Co. v. Napier 
 
 Shipping Co., 441, 454. 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 [BEFBKENCES ABE TO PAGES.] 
 
 Parish v. Ellis, 127, 663. 
 
 Parker v. Overman, 531. 
 
 Parker v. Parker, 694. 
 
 Parker, Re, 399. 
 
 Parkersburg & O. R. Transp. Co, 
 
 v. Parkersburg, 23. 
 Parkinson v. United States, 86, 88, 
 
 102, 105. 
 Parks V. Ross, 760. 
 Parks V. Turner, 777. 
 Parks, Ex parte, 86, 116, 383, 
 Park Bros. & Co. v. Bushnell, 803. 
 Parmalee v. Lawrence, 353, 357. 
 Parsons v. Bedford, 6, 127, 130, 
 
 346, 502, 506, 633, 659, 690, 780, 
 
 811. 
 Parsons v. Chicago & Northwest- 
 ern Ry. Co., 480. 
 Parsons v. District of Columbia, 
 
 259. 
 Parsons v. Russell, 84. 
 Parsons v. United States, 79i 
 Parsons v. Winchell, 692. 
 Partridge v. Phoenix Ins. Co., 726. 
 Passaic Bridges, 24. 
 Passenger Cases, 188, 231. 
 Patapsco Guano Co. v. Board of 
 
 Agriculture, 33-37, 299. 
 Patapsco, The, 443. 
 Patents v. Whitely, 400. 
 Patrick V. Graham, 758. 
 Patterson v. Chalmers 691. 
 Pattersoo v. Kentucky, 36. 
 Patterson v. Kirkland, 695. 
 Patterson v. United States, 762. 
 Patterson v. Winn, 605, 615 
 Patton V. Brady, 502, 508. 
 Paul vl. Chilsoquie, 537. 
 Paul V. Virginia, 216, 220, 221, 
 
 224, 226, 277. 
 Paulsen v. Portland, 253, 254, 256- 
 
 259. 
 Pawling V. United States, 759. 
 Paxton V. Popham, 635. 
 Payne v. Niles, 349, 372. 
 Payson v. Lamson, 604. 
 
 Pearce v. Texas, 390, 391. 
 Pearsall v. Great Northern R. Co., 
 
 162, 167. 
 Pease v. Peck, 63. 
 Pearson v. Yewdall, 70, 367. 
 Peete v. Morgan, 304, 308. 
 Peik V. Chicago & N. W. Ry. Co., 
 
 165. 
 Pembina Con. Silver Mining, etc., 
 
 Co. V. Pennsylvania, 277, 278, 
 
 282. 
 Pendergast v. Kalorama, 443. 
 Penhallow v. Doane, 314, 458. 
 Pennock v. Com'rs, 198. 
 Pennock v. Dialogue, 801. 
 Pennoyer v. McConnaughy, 514, 
 
 516. 
 Pennoyer v. Neff, 7, 84, 245, 702. 
 Pennsylvania v. Quicksilver Min. 
 
 Co., 335. 
 Pennsylvania, Ex parte, 395, 580, 
 
 583, 587, 588. 
 Pennsylvania Co. v. Bender, 586. 
 Pennsylvania Co. v. Fishack, 60. 
 Pennsylvania Co. v. The Wheel- 
 ing and Belmont Bridge Co., 20. 
 Pensacola Tel. Co. v. Western 
 
 Union Tel. Co., 21, 23, 278. 
 People V. Chicago Gas Light Trust 
 
 Co., 173. 
 People V. Compagnie Gen. Trans- 
 
 atlantique, 34-36, 41, 42. 
 People V. Gerke, 529, 530. 
 Peope V. Gillson, 224. 
 People V. Hayes, 126. 
 People V. Kelly, 94. 
 People V. Mather, 92, 93. 
 People V. Max, 224. 
 People V. Sharp, 94. 
 People V. Sheldon, 173. 
 People V. Squire, 363. 
 People V. Welch, 32. 
 Peoples' Ferry Co. v. Beers, 432. 
 Pepke V. Cronan, 389. 
 Pequiquot v. Detroit, 211. 
 Percival v. Hickey, 453. 
 
TABLE OF CASES. 
 
 Ixxxi 
 
 [BEFBIBBNCES ABE TO PAGES.] 
 
 Perkins v. Hart, 640. 
 
 Perry v. Haines, 420, 425-427, 431, 
 
 436, 440, 442-444. 
 Pembina Co. Silver Mining Co. v. 
 
 Pennsylvania, 226. 
 Pest V. Polk, 614. 
 Petapsco Ins. Co. v. Southgate, 
 
 748. 
 Peters v. Bain, 59. 
 Peters v. United States, 465. 
 Peterson v. Chicago, Rock Island 
 & Pacific Railroad Co., 705. 706, 
 718. 
 Peterson v. Fowler, 617. 
 Peitit V. Minnesota, 161, 163. 
 Petri V.' Creelman Lumber Co., '605, 
 
 668, 673. 
 Petri et al. v. Commercial National 
 
 Bank of Chicago, 533, 670. 
 Pettibone v. Nichols, 389-391. 
 Peyroux v. Howard, 443. 
 Phelps v. Mayer, 799, 803. 
 Phelps V. Oaks, 653, 654, 658. 
 Phelps V. Wart, 692. 
 Philadelphia v. Newman, 231. 
 Philadelphia & Reading R. Co. v. 
 
 Pennsylvania, 20, 21. 
 Philadelphia & Southern Mail 
 Steamship Co. v. Pennsylvania. 
 20, 21. 
 Philadelphia & Trenton, R. Co. v. 
 
 Stimpson, 756. 
 Philadelphia, WSlmington £ Bal- 
 timore R. R. Co. V. Philadel- 
 phia & Havre de Grace Steam 
 Towboat Co., 454. 
 Philips Const. Co. v. Seymour, 696. 
 Phillips V. Preston, 801. 
 Phillips, Ek parte, 462. 
 Phinney v. Sheppard & E. P. Hos- 
 pital, 373. 
 Phoen'x Life Ins. Co. v. Bailey, 
 
 604, 605, 626, 628. 
 Phoenix Ins. Co. v. Pechner, 585. 
 Phoenix Mut, Life Ins. Co. v. 
 
 Raddin, 805, 806, 808. 
 Phoenix Ins. Co. t. Wlulf, 708. 
 
 Pickard v. Pullman Southern Car 
 
 Co., 21, 23. 
 Pickett V. Pickett, 648. 
 Pierce v. Indseth, 415. 
 Pirn V. St. Louis, 352. 
 Pine Grove v. Talcott, 45. 
 Pine Grove Township v. TaJcott, 
 
 51, 62, 64. 
 Pirie v. Tredt, 578. 
 Pitkin V. Yard, 621. 
 Pitman v. Hooker, 437. 
 Pittsburgh Coal Co. v. Louisiana, 
 
 36. 
 Pittsburg, C. C. & St. L. R. Co. v. 
 
 Heck, 758, 782, 798, 800, 803. 
 Pittsburgh C. C. & St L. R. Co. v. 
 
 Backus, 44, 256, 271, 274. 
 Pittsburg, etc., R. R. Co. v. Penn- 
 sylvania, 291. 
 Plant Investment Co. v. Ry. Co., 
 
 535. 
 Planter, The, 440. 
 Piatt V. Beach, 332, 468. 
 Piatt V. Beech, 545. 
 Piatt, In re, 468. 
 Pleasant Tp. v. Aetna L. Ins. Co., 
 
 44. 
 Plessy V. Ferguson, 232. 
 Plumley v. Massachusetts, 33, 34, 
 
 36-39. 
 Plummer v. "Webb, 444, 455. 
 Plymouth, The, 434. 
 Phoenix Lumber Co. v. Houston 
 ■ Water Co., 662. 
 Poindexter v. Greenhow, 298, 628. 
 
 513. 
 Pointer v., United States, 743. 
 Polk V. Wendal, 57, 614. 
 Polk's Lessees v. Wendal, 605. 
 Pollard V. Dwight, 710, 711. 
 Pollard V. Hagan, 10, 24, 32, 148. 
 Polleys V. Black River Improve- 
 ment Co., 363, 372. 
 Pollock V. Bridgeport Steamboat 
 
 Co., 69. 
 Pollock V. Farmers' Loan & Trust 
 
 Cow 326. 
 
Ixxxii 
 
 TABLE OP CASES CITED. 
 
 [EEFEBENCES AEE TO PAGES.] 
 
 Pomeroy v. Bank, 797. 
 
 Pool V. Fluger, 800. 
 
 Poole V. Fleeger, 801. 
 
 Pooley V. Luco, 208, 537. 
 
 Pope V. Railway Co., 528. 
 
 Pope V. Williams, 185, 231, 283, 
 
 284. 
 Porter r. Foley, 366. 
 Post V. United States, 110. 
 Postal Telegraph Co. v. Alabama, 
 
 533. 
 Postmaster-General v. Early, 468, 
 
 546. 
 Postmaster-General v. Furber, 468, 
 
 546. 
 Potter V. United States, 110. 
 Potts, Re, 399. 
 Pound V. Turck, 162. 
 Pound V. Turk, 24. 
 Powell v.. Pennsylvania, 158. 
 Powell V. Supervisors of Bruns- 
 wick County, 351, 357, 358. 
 Powers V. Chesapeake & Ohio Ry. 
 
 Co., 578, 579, 585, 588, 681, 682. 
 Powers V. Presgroves, 742. 
 Poweshiek County v. Durant, 708. 
 Pratt v. Paris Gaslight & Coke 
 
 Co., 549, 551. 
 Prentice v. Zane, 736, 762, 769, 
 
 770, 773. 
 Prescott v. Tufts, 691. 
 President Bowdoin College v. Mer- 
 
 itt, 498. 
 Press Pub. Co. v. Monroe, 522. 
 Price T.. Abbott, 467. 
 Price y. Pankhurst, 803, 805. 
 Price, Receiver, V. Abbott, 332, 
 
 463, 467, 545, 546. 
 Prigg v. Pennsylvania, 16. 
 Pritchard v. Beatly, 443. 
 Prize Cases, The, 416, 432, 458. 
 Propeller Commerce, The, 32, 420- 
 
 422, 426, 434, 439, 441, 453, 459. 
 Providence Banks v. Billings, 261, 
 
 262, 412, 456. 
 Provident Sav. Inst. y. Massachu- 
 setts, 56. 
 
 Pullman Pal. Car Co. v. Common- 
 wealth of Pennsyflvania, 154, 
 155. 
 
 Pullman Palace Car. Co. v. Penn- 
 sylvania, 56, 272, 274. 
 
 Pumpelly v. Green Bay & M. Ca- 
 nal Co., 246. 
 
 Puna V. Bowler, 45. 
 
 Putnam v. United States, 118, 119. 
 
 Q. 
 
 Quantity Manufactured Tobacco, 
 
 777. 
 Queen v. Paty, 347. 
 Quickstep, The, 441, 445. 
 
 R. 
 
 Rock T. Hulings, 777, 
 
 Railroad Co. v. Adams, 167, 1B8. 
 
 Railroad Co. v. Backus, 56. 
 
 Railroad Co. v. Chicago, 130. 
 
 Railroad Co. v. Cutts, 166. 
 
 Railroad Co. v. Fraloff, 130. 
 
 Railroad Co. v. Fuller, 17. 
 
 Railroad Co. v. Georgia, 55. 
 
 Railroad Co. v. Husen, 36. 
 
 Railroad Co. v. Marshall, 352. 
 
 Railroad Co. V. Morgan, 758. 
 
 Railroad Co. v. Otoe County, 51, 
 64. 
 
 Railroad Co. v. Pennsylvania, 226, 
 261. 
 
 Railroad Co. v. Railway & Navi- 
 gation Co., 527. 
 
 Railroad Co. v. Richmond, 165. 
 
 Railroad Co. v. Rock, 357. 
 
 Railroad Co. v. State, 507. 
 
 Railroad Co. v. Steele, 504. 
 
 Railroad Co. v. Stimpson, 750. 
 
 Railroad Co. v. Wihitton, 43, 330. 
 
 Railroad Commission Cases, 249. 
 
 Railroad Tax Cases, 272. 
 
 Railway Co. v. Berry, 168. 
 
 Railway Co. v. Cox, 527. 
 
 Railway Co. v. Ellis, 263, 264, 267. 
 
TABLE OF CASES. 
 
 Ixxxiii 
 
 [RErEBBNCES ARE TO PAGES.] 
 
 Railway Co. v. Hackett, 758. 
 Railway Co. v. Hume, 522. > 
 Railway Co. v. James, 532. 
 Railway Co. v. Jarvi, 806. 
 Railway Co. v. Lewis, 506, 507. 
 Railway Co. v. Scott, 498. 
 Railway Co. v. Spencer, 803, 805, 
 
 806. 
 Eallway Co. v. Taylor, 251. 
 Ralli V. Troop, 409, 448. 
 Ralls County v^ Douglass, 63. 
 Rails County v. United States, 
 
 295. 
 Ralston, Ex parte, 384, 365. 
 Randall v. Baltimore & Ohio R. 
 
 Co., 809. 
 Eatterman v. Western Union Tel. 
 
 Co., 21, 23. 
 Ratzky v. People, 126. 
 Rea V. Missouri, 751. ^ 
 
 Rea V. The Eclipse, 433. 
 Reagan t. Aiken, 508. 
 Reagan v. Farmers' Loan & Trust 
 
 Co., 165, 244, 517. 
 Reagan v. Mercantile Trust Co., 
 
 165. 
 Reagan v. United States, 106. 
 Red Rock v. Henry, 291. 
 Redfleld v. Parks, 608, 612, 615, 
 
 616, 657, 679. 
 Redmond v. Smith, 207. 
 Reed v. Gardner, 807, 808. 
 Reed, Ex parte, 107, 386. 
 Reichart v. Felps, 605, 614. 
 Reid V. Jones, 389. 
 Reindeer, The, 459. 
 Reggel, Ex parte, 390, 391. 
 Eees V. Watertown, 498. 
 Resolute, The, 440. 
 Rex V. Joliffie, 114. 
 Rex V. Radbourne, 114. 
 Rex V. Slaney, 92. 
 Rex V. Smith, 114. 
 Reynolds Y. Crawfordville Bank, 
 
 51. 
 Reynolds v. United States, 107, 
 
 113. 329, 742. 
 
 Rhode Island v. Massachusetts, 
 11, 16, 69, 316, 320, 321, 329, 336, 
 340, 493 496. 
 
 Rice V. Houston 534. 
 
 Rice V. Minnesota & N. W. R. R. 
 Co., 289, 60S, 615. 
 
 Rice T. Railroad Co., 612. 
 
 Rice V. Sanger, 360. 
 
 Rice, Re, 396. 
 
 Rich V. Lambert, 749. 
 
 Richardson v. Boston, 762. 
 
 Richardsion v. Buhl, 173. 
 
 Richardson v. L. & N. R. Co., 608, 
 657. 
 
 Richmond & A. Railroad Co. v. 
 R. A. Patterson Tobacco Co., 42. 
 
 Richmond & Danville R. Co. t. 
 Powers, 765. 
 
 Richmond & N. R. R. Co. v. R. A. 
 Patterson Tobacco Co., 162. 
 
 Richmond F. & P. R. Co. v. Rich- 
 mond, 282. 
 
 Richter v. Riley, 617.' 
 
 Riddings v. Johnson, 44, 58, 62, 
 498. 
 
 Riggins V. United States, 383. 
 
 Riggs V. Johnson, 13. 
 
 Riggs V. Johnson County, 497. 
 
 Rlverdale Cotton Mills v. Alaba- 
 ma & G. Mfg. Co., 545. 
 
 Roach V. Damron, 638, 668. 
 
 Roanoke, The, 431, 447. 
 
 Roards v. Lamb, 176. 
 
 Robb V. Connolly, 389, 390-392. 
 
 Robbins v. Shelby County Tax- 
 ing District, 20, 21, 24. 
 
 Roberson v. Mcllhenny, 662. 
 
 Roberson v. Talbot, 662. 
 
 Roberts v. Lewis, 666, 688, 689, 
 720, 721, 723, 725. 
 
 Roberts v. Reilly, 389, 390. 
 
 Roberts v. State, 114. 
 
 Roberts v. The Bark Wendermere, 
 452. 
 
 Robertson v. Baldwin, 318, 330. 
 
 Robertson v. Cease, 531, 732. 
 
 Robertson v. Perkins, 721, 765. 
 
Jxxxiv 
 
 TABLE OF CASES CITED. 
 
 [bEFEBENCES ABE TO PAGES.] 
 
 Robinson v. Campbell, 126, 506, 
 
 594, 596, 601, 621, 623, 627, 628, 
 
 633, 651, 679, 688-690, 725, 729. 
 Robinson v. Howe, 2. 
 Robinson v. State, 114. 
 Roe V. Reade, 607-611, 647. 
 Rogers v. Alabama, 278, 353, 354^ 
 
 358. 
 Rogers v. United States, 486. 
 Rog««rs Locomotive Machine Works 
 
 V. American Emigrant Co., 612, 
 
 613. 
 Roller V. Holly, 245. 
 Root V. Lake Shore & M. S. R. Co., 
 
 550. 
 Root V. Railway Co., 127, 594, 597, 
 
 599. 
 Rose V. Himley, 457. 
 Rosecrans v. United States, 109. 
 Rosenbaum v. Bauer, 563. 
 Rosenburg v. Union Iron Works, 
 
 465, 466. 
 Rosey, In re, 465. 
 Ross V. Duval, 44, 493. 
 Ross V. McLung, 44, 58. 
 Rothschild v. Knight, 363. 
 Rothschild & Brother v. United 
 
 States, 492.. 
 Rowaji V. Runnels, 57, 64. 
 Rowe, Kx parte, 94. 
 Royal, Ex parte, 383, 388, 389. 
 Royall V. Virginia, 513. 
 Ruch V. Rock Island, 762, 806. 
 Rucker v. Wteeler, 761. 
 Runkle v. Burnham, 788, 791, 795. 
 Russell V. Ely, 57. 
 Rutherford v. Penn. Mut. Life 
 
 Ins. Co., 781, 783. 
 Ryder v. Bateman, 751. 
 Ryan v. Bindley, 744, 749. 
 Ryan v. United States, 620, 621. 
 
 s. 
 
 Sabariego v. Maverick, 619, 620. 
 
 Sabine, The, 442. 
 
 Sage v. cent. Ry. Co., 368, 369. 
 
 Sage V. Touazky,. 750. 
 
 Samuel, The, 429, 456. 
 
 Sanders v. McDonald, 601. 
 
 Sandford v. Nichols, 90. 
 
 Sands v. Edmunds, 513. 
 
 Sands v. Manistee River Imp. Ctt^ 
 
 24. 
 San Diego Flume Co. v. Souther, 
 
 604. 
 San Diego Land & T. Co. v. Na.- 
 
 tipnal City, 189. 
 Sanford v. Sanford, 612. 
 San Jose Land & Water Co. v. Sam 
 
 Jose Ranch Co., 353, 354. 
 Santa Anna v. Frank, 784. 
 Santa Clara County v. Southern* 
 
 Pac. R. Co., 248, 260. 
 Santa Clara Valley Mill & Lumber- 
 Co. V. Hayes, 173. 
 Santissima Trinidad, The, 216r 
 
 456. 
 Sarah, The, 429, 456, 462, 470. 
 Sarah Jane, The, 422. 
 Saratoga, The, 444. 
 Sarchet v. United States, 811. 
 Sarf V. United States, 128. 
 Saunders v. McDonald, 621. 
 Savings & JLi. Soc. v. Multnomah) 
 
 County, 254, 260. 
 Sawin v. Kenny, 677, 775, 784. 
 Sawyer v. Piper, 507. 
 Sawyer, Ex parte, 126, 594, 628. 
 Sawyer, Re, 70, 121, 18G. 
 Saylor v. Taylor, 444. 
 Sayward v. Denny, 351, 356, 35T, 
 Scales V. State, 163. 
 Scarborough v. Pargoud, 372, 813, 
 SchaJlenberger, Ex parte, 399, 706. 
 Schillinger v. United States, 477. 
 Schlosser v. Hemphill, 360, 361. 
 Schofleld V. Chicago, Milwaukee & 
 
 St. P. Ry. Co., 764. 
 Schofleld v. Palmer, 467, 545. 
 Schofleld V. Rhodes, 594, 601, 621, 
 
 628. 
 Schollenberger v. Pennsylvania, 
 
 33, 37, 39, 350. 
 
TABLE OF CASES, 
 
 Ixxxv 
 
 [BEFEBENCES ABE TO PAGES.] 
 
 Schooner Anne, The, 445. 
 Schooner Freeman v. Bucking- 
 ham, 437. 
 Schoonar Kalmar, The, 445. 
 Schooner Maud Webster, 436. 
 Schoonmaker v. Gllmore, 453. 
 Schuchardt v. Allen, 695, 696, 782. 
 Schuchardt v. Babhidge, 433, 439. 
 Schwenk v. Strong, 587. 
 Scotia, The, 415. 
 Scotland, The, 409, 412, 414, 415, 
 
 456. 
 Scott V. Armstrong, 553, 594, 595, 
 
 607, 626, 628, 651, 656, 657, 678, 
 
 72!5, 727, 729. 
 Scott V. Donald 516-520. 522, 541, 
 
 542, 767. - 
 Scott V. Lloyd, 801. 
 Scott V. Lunt, 638. 
 Scott V. McNeal, 251. 
 Scott V. Nsal, 263. 
 Scott V. Neely, 7, 128, 594-596, 
 
 602, 626-628, 633, 651, 656, 657, 
 
 696, 729. 
 Scott V. Sandford, 324f-326, 699, 
 
 .718, 720, 812. 
 Scott V. Toledo, 246. 
 Scranton v. Wheeler, 29, 133. 
 Seabrook v. Jlaft, 430. 
 Searcy County v. Thompson, 790, 
 
 791. 
 Searl v. Lake County School 
 
 Dist, 246. 
 Searl v. School Dist, 479, 570, 649. 
 Sears v. Wills, 406. 
 Secombe v. Milwaukee & St. P. 
 
 Ry. Co., 134. 
 Secombe v. Railway Co,, 246. 
 Seeley v. Kansas City Star Co., 
 
 659, 747. 
 Seelin v. Ryan, 692. 
 Seguranca, The, 452. 
 Seibert v. United States, 2«3, 294. 
 Selvester v. United States, 118, 119. 
 Semayne's Case, 88. 
 Semmes v. Unite'd States, 367. 
 Settlemeier v. Sullivan, 708. 
 
 Seymour v. Lumber Co., 601, 621. 
 Shainwald v. Lewis, 578. 
 Shannon v. Bradstreet, 609. 
 Shapleigh v. San Angeio, 285. 
 Sharon v. Terry, 498. 
 Shauer v. Alterton, 802. 
 Shaw V. Kellogg, 614. 
 Shaw, ESx parte, 669, 670. 
 Sheffield Furnace Co. V. With- 
 
 erow, 599, 600. 
 Shelby v. Guy, 44, 52, 57. 
 Shelby County v. Union & Plant- 
 ers' Bank, 286. 
 Sheldon v. Gill, 316, 320. 
 Sheldon v. Sill, 496, 499. 
 Shellabarger v. Oliver, 659, 747. 
 Shepard v. Adams, 653, 658, 704, 
 
 713. 
 Sheppard v. Cummings, 617. 
 Sheppard y. Graves, 720. 
 Sheppard v. Steel, 432. 
 Sheppard v. Taylor, 437, 440, 444. 
 Sherlock v. Ailing, 39, 162, 166, 
 
 445. 
 Shields v. State, 243. 
 Shields v. Thomas, 543. 
 Shierburn v. de Cordova, 608, 618,. 
 
 657, 679. 
 Shineley v. Bowlby, 26, 28. 
 Shippen v. Bowen, 691, 695, 696,. 
 
 6917. 
 Ship Harriet, The, 444. 
 Shirk V. City of La Fayette, 534. 
 Shlvely v. Bowlby, 148. 
 Shoeoraft v. Bloxham, 535. 
 Shoemaker v. United States, 132. 
 Short V. Hepburn, 332, 467, 546. 
 Shoshone Min. Co. v. Rutler, 506.. 
 Shreveport v. Cole, 504, 507, 508. 
 Shumate v. Heman, 253, 257, 259. 
 Shutte V. Thomas, 749. 
 Sibold, Ex parte, 15. 
 Siebold, Ex parte, 47, 63, 382, 383, 
 
 385. 
 Simmerman v. Nebraska, 357. 
 Simmona v. United States, 119, 
 
 76L 
 
Ixxxvi 
 
 TABLE OF CASES CITED. 
 
 [befebences are to pages.] 
 
 Simon V. Craft, 176, 2451 
 
 Simpson v. Greely, 372, 373. 
 
 Sims V. Hundley, 744, 749. 
 
 Slnnlckson v. Johnson, 246. 
 
 Singleton v. Touchard, 601, 611, 
 621, 628, 725. 
 
 Sioux City & Pacific K. Co. v. 
 Stout, 765. 
 
 Siren, The, 447, 458. 
 
 Sir John Friend's Case, 92. 
 
 Skidmore Railway Co., 620. 
 
 Slater v. Mexican Cent. R. Co., 
 496, 646, 690, 718. 
 
 SlaughteiT-House Cases, 156-159, 
 179, 189, 194, 200, 201, 214, 216, 
 220, 222, 220, 230, 231, 233, 235, 
 263, 628. 
 
 Sloan V. United States, 508. 
 
 Sloane v. Anderson, 578. 
 
 Sloop Canton, The, 444. 
 
 Small V. Mitchell, 781. 
 
 Smeed v. Wister, 43. ' " 
 
 Sni^^ing Co. v. Kemp, 605. 
 
 Smiley V. Barker, 788i. 
 
 Smith V. Alabama, 24, 38, 69, 162, 
 166, 196. 
 
 Smith V. Bourden County, 563. 
 
 Smith V. Corporation of Washing- 
 ton, 134. 
 
 Smith V. ©ale, 728. 
 
 Smith Y. Gerloch, 372. 
 
 Smith V. Greenhow, 508, 510, 513. 
 
 Smith V. Indiana, 373, 374. 
 
 Smith V. Jackson, 316. 
 
 Smith V. Kernochen, 59. 
 
 Smith V. Lorrilard, 619, 620. 
 
 Smith V. Lowell, 691. 
 
 Smith V. Lyon, 670. 
 
 Smith V. Maryland, 32, 428. 
 
 Smith V. Mississippi, 590. 
 
 Smith V. Pevine & Co., 372. 
 
 Smith v. Sargent Mfg. Co., 675. 
 
 Smith V. United States, 422. 
 
 Smith V. Wihitney, 107, 395, 396. 
 
 Smith V. Williams, 621. 
 
 Smith v. Winston, 648. 
 
 Smithers v. Smith, 542. i 
 
 Smyth V. Ames, 249, 260. 
 
 Smyth V. New Orleans Canal & 
 
 Banking Co., 606. 
 Snedicor v. Leachman, 641. 
 Snow, Re, 383. 
 Snyder v. Pharo, 601. 
 Snyder v. United States, 777. 
 Solomon v. Tupelo Compress Co., 
 
 710. 
 Society v. Pawlet, 728. 
 Society for Savings v. Colt, 262. 
 Sonnentheil v. Christian Moerlein 
 
 Brewing Co., 262, 524, 604. 
 Southard v. Rexford, 92. 
 Southerland v. Round, 803. 
 South Carolina R. Co. v. Nix, 662. 
 South Carolina v. United States, 
 
 16, 69, 336. 
 South Dakota v. South Carolina, 
 
 337. 
 South Ottawa v. Perkins, 55. 
 Southern Indiana Express Co. 7. 
 
 U. a Express Co., 558. 
 Southern Pacific Oo. v. Denton, 
 
 653, 656-658, 661, 666, 668-670, 
 
 684, 710, 712. 
 Southern Pacific Co. v. Earl, 675. 
 Southern Ry. Co. t. Allison, 532. 
 Southern Ry. Co. y. Carson, 578, 
 
 579. 
 Southern Ry. Co. v. Lester, 802. 
 Sparf V. United States, 108. 
 Spalding v. Manassee, 789. 
 Spears v. Flynn, 675. 
 Specht V. Commonwealth, 163. 
 Speckart v. German Nat. Bank, 
 
 528, 546, 552. 
 Spencer v. Duplan Silk Co., 504, 
 
 506. 
 Spencer v. Merchant, 253, 256- 
 
 259, 261. 
 Spies V. Illinois, 70, 176, 186, 233. 
 Spie's Case, 156, 157. 
 Spies, Ex parte, 351, 352. 
 Spokane Falls & N. R. Co. t. Zleg- 
 
 ler, 502. 
 Spratt V. Reid, 2. 
 
TABLE OF CASES. 
 
 Ixxxvii 
 
 [eeteeences aee to pages.] 
 
 Spratt V. United States, 209. 
 Spreckels Suger Ref. CO. v. Mc- 
 
 Claln, 547. 
 Springer v. United States, 85. 
 St. Anna's Asylum v. New Or- 
 leans, 288, 290. 
 St. Anthony Palls Water POiWer 
 Co. V. Board of Water Com'rs, 
 27. 
 St. Clair v. Cox, 245, 702, 705, 718. 
 St. Clair v. United States, 665, 
 
 741, 743, 798. 
 St. Clair County v. Livingston, 
 
 361. 
 St. Jago de Ctiba, The, 442, 443. 
 St. John V. Chew, 44, 58, 493. 
 St. Joseph & Grand Island R. 
 
 Co. V. Steele, 532. 
 St. Lawrence, The, 406, 407, 417, 
 
 431, 440, 443. 
 St. Louis V. Rutz, 58, 788. 
 St. Louis V. Wiggins' Ferry Co., 
 
 261. 
 St. Louis & S. F. R. Co. v. Gill, 
 
 249. 
 St. Louis & S. F. R. Co. v. Ma- 
 thews, 264-267. 
 St. Louis & San Pransoisco R. Co. 
 V. McBride, 710, 711, 717, 718, 
 (722, 724. 
 St. Louis Brewing Assoc, v. Hayes, 
 
 677. 
 St. Louis Consol Coal Co. v. Illi- 
 nois, 353, 354. 
 St. Louis Street Foundry v. . 
 
 United States, 471. 
 St Louis, Iron Mountain & South- 
 ern Ry. Co. V. Vickers, 761, 762. 
 St. Louis Smelting & Ref. Co. v. 
 
 Kemp, 614. 
 St. Luke's Hospital v. Barclay, 335, 
 
 537. 
 St. Paul & O. R. V. MacLean, 567. 
 St. Paul & P. R. Co. V. Northern 
 
 Pac. R. CO., 613, 614. 
 St. Paul Gaslight Co. v. St. Paul, 
 517. 
 
 Stanley v. Albany Co., 253. 
 Stanley v. Board of Supervisors 
 
 of the County of Albany, 788. 
 Stanley v. Schwalby, 346, 349, 362, 
 
 363. 
 Stanton v. Wilkinson, 332, 465, 
 
 468, 545, 546. 
 Starchman v. State, 243. 
 Starin v. New York, 504, 507. 
 Star of Hope, 448. 
 State V. Able, 114. 
 State V. Alston, 156. 
 State V. Arlin, 126. 
 State V. Atkinson, 243. 
 State V. Awles, 163. 
 State V. Baker, 114. 
 State V. Baltimore & Ohio R. Co., 
 
 163. 
 State V. Cook, 114. 
 State V. Edwards, 243. 
 State V. Flynn, 243. 
 State V. Goodwill, 224. 
 State V. Gray, 395. 
 State V. Harrub, 32. 
 State V. Hooker, 114. 
 State V. Houser, 114. 
 State V. Johnson, 114. 
 State V. Laredo Ice Co., 173. 
 State V. McO'Blenis, 114. 
 State V. Nowell, 92, 94. 
 State V. Pomeroy, 243. 
 State V. Quarles, 93. 
 State V. Staten, 84. 
 State V. Saunders, 233. 
 State V. Severance, 275. 
 State V. Shippers' Compress & 
 
 Warehouse Co., 173. 
 State V. Snyder, 617. 
 State V. Fowler, 228. 
 State V. Valentine, 114. 
 State V. Wilson, 114. 
 State Railroad Tax Cases, 256, 
 
 260, 269, 274. 
 State of Indiana, ex rel. Stanton 
 
 V. Glover, 533. 
 State of Maryland for the use of 
 
 Markely v. Baldwin, 533. 
 
Ixxxviii 
 
 TABLE OF CASES CITED. 
 
 [bEFEBBNCES ABE TO PAGES.] 
 
 State Trust Co. v. Kansas City R. 
 
 Co., 498. 
 Steamboat Co. v. Chace, 32, 445. 
 Steamboat Cheeseman v. Two 
 
 Ferry-Boats, 4222. 
 Steamship Co. v. Mount, 432. 
 Steamship Co. v. Port Wardens, 
 
 305. 
 Steamboat Ohio, The, 444. 
 Stearns V.. Minnesota, 55, 84. 
 Stearns v. United States, 330. 
 Steel V. St. Louis S. & R. Co., 615. 
 Stein V. Beinville Water Supply 
 
 Co., 289. 
 Steiner v. Ray, 33. 
 Stephens v. Bernays, 332, 467, 545, 
 
 546. 
 Stevens -v. Gladding, 552. 
 Stewart y. Lansing, 809. 
 Stevens v. Nichols, 576. 
 Stewart v. Baltimore & 0. R. Co., 
 
 646. 
 Stewart v. Wisconsin Cent. R. Co., 
 
 498. 
 Stiles V. Inman, 7660. 
 Stillman v. Combe, 545. 
 Stimpson v. Westchester R. Co., 
 
 800, 805. 
 Stockton V. Baltimore & N. Y. R. 
 
 Co., 29. 
 Stockwell V. United States, 465. 
 Stoddard v,. Chambers, 605, 614, 
 
 620, 621. 
 Stone V. Dana, 90. 
 Stone v. Farmers' Loan & Trust 
 
 Co., 7, 22, 165. 
 Stone V. Mississippi, 158. 
 Stone V. South Carolina, 567, 586. 
 Stone V. United States, 868. 
 Storti V. Massachusetts, 384, 393. 
 Story T. Livingston, 506. 
 Strauder v. West Virginia, 194, 
 
 200, -278, 355, 590. 
 Stroeher v. Lucas, 127. 
 Strong V. State, 126. 
 Stuart V. Laird, 70. 
 
 Sturges V. CTowinshield, 285, 290, 
 
 325. 
 Sullivan v. Holker, 694. 
 Sully V. American Nat. Bank, 223, 
 
 252. 
 Sumat V. Davenport, 162. 
 Summers v. Mosley, 755. 
 Summons v. State, 114. 
 Sun Mutual Ins. Co. v. Ocean Ins. 
 
 Co., 659. 
 Supervisors v. Kennicott, 773, 789. 
 Supervisors v. United States, 496. 
 Susquehannah & W. Valley R. Co. 
 
 V. Blatchford, 536. 
 Suydam v. Moore, 692. 
 Suydam v. Williamson, 62, 769, 
 
 770, 773, 794, 800. 
 Swartout, Ex parte, 13.5. 
 Swafford v. Templeton, 508, 528. 
 Sweatt V. Burton, 617, 657, 679. 
 Sweatt V. Corcoran, 616. 
 Sweayze v. Burke, 604. 
 Sweeney v. Carter Oil Co., 870. 
 Sweet V. Rechel, 246. 
 Sweringen v. St. Louis. 352, 354. 
 Swift V. Smith, 44. 
 Swift V. Tyson, 43, 54, 60, 61. 
 Swift & Co. V. Jones, 659, 735-737, 
 
 786. 
 Swift & Co. V. U. S., 558, 560. 
 Swofford V. Templeton, 502, 553. 
 Syracuse, The, 441, 445. 
 
 T. 
 
 Taber v. Cooper, 777. 
 
 fTabor v. Indianapolis Journal 
 
 Newspaper Co., 747. 
 Talbot V. Jansen, 214. 
 Tarble'S Case, 627. 
 Taylor v. Bruen, 92, 93. 
 Taylor v. Longworth, 589. 
 Taylor v. Secor, 56. 
 Taylor v. Secor, 256. 
 Telegram Co. v. Commonwealth, 
 
 244. 
 
TABLE OP CASES. 
 
 Ixxxix 
 
 [BEFEBENCES ABE TO FAOES.l 
 
 Telegraph Co. v. Texas, 22. 
 
 Tellurlde Power Transmission Co. 
 V. Rio Grande Western Ry. Co., 
 357. 
 
 Temple v. Commonwealth, 92, 94. 
 
 Tennessee v. Davis, 590. 
 
 Tennessee t. Sneed, 2, 293, 294. 
 
 Tennessee v. Union. & Planters' 
 Bank, 50^, 504, 506, 507, 569, 
 573, 574. 
 
 Terra Haute & I. R. Co. v. Peo- 
 ria & P. U. R. Co., 498. , 
 
 Terry v. Anderson, 295. 
 
 Terry, Ex parte, 385, 392. 
 
 Texas v. Whitg, 209. 
 
 Texas & Pacific R. Co. r. Cody, 
 763. 
 
 Texas & Pacific R. Co. v. Cox, • 
 645. 
 
 Texas & Pac. R. Co. v. Gentry, 540, 
 543. 
 
 Texas & Pacific Ry. Co. v. John- 
 son, 373. 
 . Texas & Pacific Ry. Co. v. Kirk, 
 365, 367. 
 
 Texas & P. R. Co. v. Wilder, 659, 
 747. 
 
 Thaokarly v. The Farmer of Sa- 
 lem, 444, 452. 
 
 Thatcher v. Powell, 44, 58, 493. 
 
 Thayer v. Spratt, 346, 349. 
 
 Thayer v. Wales, 708. 
 
 The Alerta v. Moran, 458. 
 
 The Belfast v. Boon, 406. 
 
 The Belgenland v. Jensen, 414, 
 415. 
 
 The Exchange v. McFadden, 447: 
 
 The Grapeshop v. Wallerstein, 443. 
 
 The Hine v. Trevor, 420, 431, 434, 
 441, 442, 453. 
 
 The Knapp Company v. McCaffrey, 
 431. 
 
 The Mima Queen v. Hepburn, 742. 
 
 The New Jersey Steam Nav. Co. 
 V. Merchants' Bank, 451. 
 
 The Orleans v. Phoebus, 51. 
 
 The Potomac v. Cannon, 451. 
 
 The Steamboat Cheeseman v. Two 
 
 Perry Boats, 446, 459. 
 The Virgin v. Vyfius, 442. 
 Thired v. Utah, 329. 
 Thomas v. Board of Trustees of 
 
 the Ohio State University, 699, 
 
 700. 
 Thomas v. Loney, 31, 39. 
 Thomas v. Osborn, 449. 
 Thomas Carroll, The, 441. . 
 Thomas Jefferson, The, 408, 418, 
 
 429. 
 Thom.pson v. Central Ohio Rl. R. 
 
 Co., 126. 
 Thompson v. Darden, 446. 
 Thompson v. Lee County, 57, 63, 
 
 64. 
 Thompson v. Missouri, 125, 355. 
 Thompson v. National Bank, 802. 
 Thompson v. Ohio R. Co., 603. 
 Thompson v. Perrine, 535. 
 Thompson v. Pool, 332, 467, 546. 
 Thompson v. Railway Co., 594, 
 
 595, 597, 626, 628, 656. 
 Thompson v. Tracy, 395. 
 Thompson v.' Union Pac. R. Co., 
 
 165, 263. 
 Thompson v. United States, 119. 
 Thompson v. Utah, 107, 108, 125, 
 
 128. 
 Thompson v. Wheatley, 607. 
 Thompson v. Whitman, 702. ' 
 Thornton v. Bank, 759. 
 Thornton v. Schreiber, 552. 
 Thorrington v. Montgomery, 70, 
 
 186. 
 Thorwegan v. King, 763. 
 Thurber v. Conners, 617. 
 Tillotson V. Stiff, 691. 
 Tilton, The, 453. 
 Tinsley v. Anderson, 244. 
 Titus V. Johnson, 617. 
 Titus V. United States, 471. 
 Toby V. Allen, 662. 
 Todd V. Fisher, 617. 
 Toland v. Sprague, 109, 704, 710, 
 
 711. 
 
xc 
 
 TABLE OP CASES CITED. 
 
 [eeteeences abb to pages.] 
 
 Tonawanda v. Lyon, 257, 259. 
 Toplitz V. Hedden, 757. 
 Torrance v. Betsy, 607. 
 Torrance v. Shedd, 576. 
 Town V. The Western Metropolis, 
 
 459. 
 Town of Roberts v. Bolles, 63. 
 Townsend v. Todd, 59. 
 Transportation Co. v. Parkersburg, 
 
 307, 309, 310. 
 Transportation' Line v. Hope, 738. 
 Trask v. People, 243. 
 Traudle v. Arnold, 693. 
 Triplett v. Washington Bank, 753. 
 Tripp V. Santa Rosa Street Ry. 
 
 Co., 370, 371. 
 Trunk R. Co. v. Cummlngs, 765. 
 Trust Co. V. Railway Co., 498, 602. 
 Tucker v. Ferguson, 262. 
 Tucker v. Spalding, 550. 
 TuUis V. Lake Brie & W. R. Co., 
 
 264, 265. 
 Tupper V. Wise, 540, 543. 
 Turner v. Bank, 496, 499. 
 Turner v. Bank of North America, 
 
 322. 
 Turner v. Maryland, 34-36, 304. 
 Turner v. Richardson, 468. 
 Turner v. Yates, 800, 803. 
 Turpin v. Lemon, 373. 
 Tutwiler v. Munford, 601, 621. 
 Twitchell v. Commonwealth, 343. 
 Twitchell v. Pennsylvania, 70, 186. 
 Tyler, Ex parte, 385. 
 Tyler v. Registration. Court 
 
 Judges, 373. 
 Tyng V. Grinnell, 788, 793, 794. 
 
 u. 
 
 Union Bank v. Barker, 92, 93. 
 
 Union Cotton Manufactory v. Lob- 
 dell, 691. 
 
 Union Ins. Co. v. Smith, 807. 
 
 Union Ins. Co. v. United States, 
 471, 549. 
 
 Union Mutual Life Ins. Co. t. 
 
 Kirchoff, 360, 361. 
 Union Pacific R. Co. v. Botsford, 
 
 749. 
 Union Pacific R. Co. v. Callaghan, 
 
 807. 
 Union Pacific R. Co. v. McDonald, 
 
 784. 
 Union Pacific R. Co. y. McShane, 
 
 262. 
 Union Pacific R. Co. v. Myers, 501, 
 
 526. 
 Union Pacific R. Co. v. Peniston, 
 
 151, 165, 262. 
 Union Pacific R. Co. v. Snyder, 
 
 795. 
 Union Pacific R. Co. v. Wyler, 662. 
 Union Trust Co. v. Atchison, To- 
 
 peka & Santa Pe Ry. Co., 729. 
 United States v. Adams, 378. 
 United States v. Addison, 399. 
 United States v. Addyston Pipe & 
 
 Steel Co., 174. 
 United States v. American Bell 
 
 Tel. Co., 702. 
 United States v. Armejo, 712. 
 United States v. Arrendo, 496. 
 United States v. Averill, 474. 
 United States v. Barlow, 548. 
 United States v. Beavans, 26, 32, 
 
 465. 
 United States v. Bevans, 427, 428. 
 United States v. Bowen, 474. 
 United States v. Britton, 465. 
 United States v. Breitling, 758, 
 
 799, 801. 
 United States v. Brougher, 465. 
 United States v. Butterworth, 682. 
 United States v. Carey, 758. 
 United States v. Colt, 465, 466. 
 United States v. Conkling, 805. 
 United States v. Coppersmith, 106. 
 United States v. Coolidge, 465. 
 United States v. Cornell Steam- 
 boat Co., 447, 478, 556. 
 United States V. Crosby, 530, 618. 
 
TABLE OF CASES. 
 
 XCl 
 
 [befebences abb to pages.] 
 
 United States v. Cruikshank, 70," 
 148, 15,7, 179, 182, 184-186, 191, 
 193, 214, 216, 218, 229, 231, 235, 
 283, 284. 
 
 United States v. Curry, 370, 712. 
 
 United States v. Dashlel, 349. 
 
 United States v. Dawson, 109^ 
 
 United States v. Davis, 378. 
 
 United States v. Delaware, L. & 
 A. W. R. Co., 482. 
 
 United States v. I>e Walt, 86, 102, 
 105. 
 
 United States v. De Witt, 326. 
 
 United States v. Dorr, 128, 129. 
 
 United States v. Drew, 556. 
 
 United States v. Dunnlngton, 135. 
 
 United States v. Eaton, 465. 
 
 United States v. B. C. Knight Co., 
 174. 
 
 United States t. Eleven Hundred 
 Fifty and One-Half Pounds Cel- 
 luloid, 470. 
 
 United States v. Bliason, 794. 
 
 United States v. 50 Boxes & Pack- 
 ages of Dace, 65'9. 
 
 United States v. Fisher, 16. 
 
 United States v. 5 Boxes & Pack- 
 ages of Liace, 747. 
 
 United States v. Fox, 326, 618. 
 
 United States v. Gale, 742. 
 
 United States v. Gettysburg Blec. 
 R. Co., 132, 478. 
 
 United States v. GlUat, 378. 
 
 United States v. Goodwin, 346. 
 
 United States v. Green, 468, 546. 
 
 United States v. Grimly, 386. 
 
 United States v. Hall, 122. 
 
 United States v. Halliday, 23. 
 
 United States v. Hamilton, 35. 
 
 United States v. Harris, 158, 179, 
 182, 185, 282, 326. 
 
 United States v. Hill, 547. 
 
 United States v. Hoffman, 395. 
 
 United States v. HoUiday, 197. 
 
 United States v. Hopewell, 547. 
 
 United States v. Hough, 764, 807. 
 
 United States v. Howland, 506. 
 g 
 
 United States v. Hudson, 465. 
 United States v. John, 109. 
 United States v. Johnson, 496. 
 United States t„ Jones, 132, 478, 
 
 556. 
 United States v. Joint TraflBc As- 
 sociation, 224, 225, 558, 559. 
 United States v. Kellar, 211. 
 United States v. Kentucky River 
 
 Mills, 538. 
 United States v. King, 794. 
 United States v. Klein, 326. 
 United States v. Knox County, 497. 
 United States v. Lathrop, 318, 330. 
 United States v. Lia Vengance, 
 
 429, 456. 
 United States v. Lawrence, 399, 
 
 400. 
 United States v. L«e, 83. 
 United States v. Lee County, 497. 
 United States v. Lewis, 465. 
 United States v. Louisiana, 335, 
 
 336. 
 United States v. Loverty, 212, 213. 
 United States v. Lyuah, 133, 4,77. 
 United States v. Macomb, 114. 
 United States v. Marchant, 742. 
 United States v. Marigold, 17. 
 United States v. Martin, 465. 
 United States v. McCabe, 477. 
 United States v. McMaster, 757, 
 
 798, 800, 801. 
 United States v. Memphis, 253. 
 United States v. Mexican Na- 
 tional Railway Co., 332, 465, 466, 
 
 556. 
 United States v. Mooney, 332, 463, 
 
 465, 466. 
 United States v. Morgan, 478, 556, 
 
 808. 
 United States v. Munford, 741. 
 United States v. Muscatine, 51, 64. 
 United States v. National Lead 
 
 Co., 89, 660, 753. 
 United States v. Neurea, 442. 
 United States v. New Orleans, 261, 
 
 295. 
 
xcu 
 
 TABLE OP CASES CITED. 
 
 [befebences 
 
 United States v. Norfolk & W. Ry. 
 
 Co., 482, 483. 
 United States v. North. Carolina, 
 
 335, 339. 
 United States v. One Distillery, 
 
 470. 
 United States v. Palmer, 477. 
 United States v. Paasavant, 492. 
 United States v. Perez, 119, 120. 
 United States v. Peters, 399, 400. 
 United States v. Peterson, 428. 
 United States v. Philadelphia & 
 
 Reading R. Co., 128, 738, 761. 
 United States v. Piatt, 548. 
 United States v. Quincy, 285, 293, 
 
 496. 
 United States v. Ranscher, 529. - 
 United States v. Rathbone, 659. 
 United States v. Reese, 156, 185, 
 
 283, 284, 326. 
 United States v. Reid, 43, 538. 
 United States v. Rendskopf, 805. 
 United States v. Rice, 209. 
 United States v. Richardson, 743. 
 United States v. Rogers, 197. 
 United States v. Rose, 741. 
 United States v. Russell, 400. 
 United States v. Ryder, 474. 
 United States v. Saline Bank, 92, 
 
 93. 
 United States v. Sanborn, 548. 
 United States v. Ganges, 117. 
 United States v. Sayward, 502, 
 
 507, 538, 539, 573. 
 United States v. Schurz, 612. 
 United States v. Shackelford, 743. 
 United States v. Shaw, 538. 
 United States V. Shoverling, 367. 
 United States v. Sixteen Hogs- 
 heads Tobacco, 470. 
 United States v. Snyder, 547. 
 United States v. StefCens, 326. 
 United States v. Stevenson, 471. 
 United States v. Stone, 648, 673. 
 United States v. Swift, 477, 478, 
 
 £56. 
 
 AEB TO PAGES.] 
 
 United States v. Tarble, 8, 12, 13, 
 
 15, 47, 148, 316, 325, 327, 330, 478. 
 United States v. Taylor, 355. 
 United States v. Texas, 335, 339. 
 United States v. The Betsey, 429. 
 United States v. The Betsey and 
 
 Charlotte, 456. 
 United States v. The Malek Adhel, 
 
 417, 418. 
 United States v. The Neustra Se- 
 
 nora De Regla, 451. 
 United States v. The Sally, 429'. 
 United States t. The Schooner 
 
 Sally, 456. 
 United States t. The Three 
 
 Friends, 414, 418, 456. 
 United States v. The Watchful, 
 
 416. 
 United States v. Thirteen Hundred 
 
 Sixty-Three Bags Merchandise, 
 
 128, 738. 
 United States v. Three Hundred 
 
 Ninety-Six Bbls. Distilled Spir- 
 its, 470. 
 United States v. Trans-Missouri 
 
 Freight Ass'n, 328, 558, 559. 
 United States v. Walsh, 465. 
 United States v. Weed, 416. 
 United States v. Whiskey, 198. 
 United States v. Whitcombe Me- 
 tallic Bedstead Co. 332, 465, 
 
 466, 556. 
 United States v. White, 114. 
 
 United States v. Wilder, 447. 
 United States v. WiHetts, 465. 
 United States v. Wilteberger, 465. 
 United States v. Wong Kim Ark, 
 
 69, 194-197, 200-203, 207, 209, 
 
 210. 
 United States v. Wonson, 131, 659. 
 United States v. Wood, 114. 
 United States v. Zucker, 113. 
 United States, Re, 479. 
 United States ex rel. Knapp v. 
 
 Lake Shore & M. S. Ry. Co. et 
 
 al., 563. 
 
TABLE OP CASES. 
 
 ?CH1 
 
 [KEFEBENCBS ABE TO PAGES.]' 
 
 United states Express Co. v. Hen- 
 derson, 755. 
 
 United States Fidelity & Guaranty 
 Co. V. United States, 538. 
 
 United States Mut. Aco. Ass'n v. 
 Barry, 653, 656. 661, 762, 764, 
 768. 771. 
 
 University v. People, 297. 
 
 V. 
 
 Valentla v. Mercer. 383. 
 Vallandingham. Ex parte. 387. 
 Van Aukea v. Monroe. 619. 
 Van Brooklyn v. Anderson. 132. 
 Van Brocklln v. Tennessee. 262. 
 Vance v. Campbell, 744. 749. 
 Vance v. Vandercook, 541. 
 Vandensen v. Blum. 691. 
 Vanderwater v. Mills. 435, 437. 
 Van Hoffman v. Quincy, 290, 292, 
 
 294, 295. 
 Van Ness v. Bank of the United 
 
 States, 777. 
 Van Norden v. Morton, 603, 633. 
 Van Patten v. Chicago, 675. 
 Van Rensseler v. Kearney, 58, 620. 
 Van Stone v. Stillwell & Brice 
 
 Mfg. Co., 778. 
 Van Zant v. Waddell, 83. 
 Vasse V. Smith, 808. 
 Veazie v. Moore, 18. 
 Veazie Bank of Fenno, 261. 
 Verden v. Colman, 345. 349, 373. 
 Vicksburg v. Tobin. 307. 
 Vicksburg & Meridian R. Co. v. 
 
 Putnam. 128, 738. 761. 762. 
 Vicksburg. Shreveport & Pacific R. 
 
 R. Co. V. Dennis, 286. 
 Vicksburg Waterworks v. Vicks- 
 burg, 502. 506, 508, 510. 518. 
 Victor V. Bowen, 474. 
 Victor G. Bloede Co. v. Bancroft 
 
 Co., 752, 753. 
 Vidal, Re, 402. 
 
 Villabolas v. United States. 370. 
 Vincent v. California, 176, 236, 
 
 239. 240. 
 
 Virginia v. Paul. 590. 
 
 Virginia v. Rives. 157, 179. 399, 
 
 590. 
 Virginia v. West Virginia, 337. 
 Virginia. Ex parte. 194, 200, 251. 
 
 263. 278, 385. 
 Voight V. Wright, 40. 
 Vulcan Powd«r Co. v. Hercules 
 
 Powder Co,. 173. 
 
 W. 
 
 Wabash R. R. Co. v. Flannigaa, 
 
 357. 
 Wabash, St. L. & P. R. R. Co. v. 
 
 Illinois, 21-24. 
 Wabash Western Ry. V. Brow, 710, 
 
 712, 714. 718. 
 Wade V. Lowder, 551. 
 Wade V. Travis County, 62. 
 Wade V. Walnut, 44. 
 Wader v. Lawder, 359. 
 Wagner v. Drake, 498. 
 Waldron v. Waldron, 810. 
 Walker V. Beal, 43. 
 Walker v. Brooks, 598. 
 Walker v. Collins, 574. 
 Walker v. Howard. 617. 
 Walker v. Marks, 58. 
 Walker v. New Mexico & Southern 
 
 Pacific R. Co., 771. 
 Walker v. Sauvinet. 70, 82, 176, 
 
 216. 234, 236, 244. 
 Walker v. Whitehead, 285. 290, 
 
 293, 294. 
 Walla Walla v. Wala Walla Water 
 Walkley v. Muscatine, 497. 
 
 Co., 510, 518. 
 Wallace v. Hood. 468. 
 Walling v. Michigan, 21, 40. 
 Walston V. Nevin. 253, 282. 
 Walter v. Northeastern Railroad 
 
 Co., 540, 542. 
 Walter A. Wood Mowing & Reap- 
 ing Mach'. Co. V. Skinner, 358. 
 
 551. 
 Walters v. Mollie Dozier, 422. 
 
XCIV 
 
 TABLE OF CASES CITED. 
 
 tEEFEBENCES ABE TO PAGES.] 
 
 "Walton V. Marietta Co., 367, 368. 
 Walton V. United States, 758, 800, 
 
 803. 
 Walworth v. Kneeland, 373. 
 Wane, The, 445. 
 Warax v. Railroad Company, 681, 
 
 692. 
 Warburton v. White, 58, 493. 
 Ward V. Banner, 445. 
 Ward V. Chamberlain, 58. 
 Ward V. Cochran, 762, 773. 
 Ward V. Maryland, 216, 218, 220, 
 
 222, 343. 
 Ware v. Collins, 695. 
 Ware v. McQuillan, 760. 
 Ware V. Wisner, 211, 216. 
 Warfield v. Chaffe, 356. 
 Waring v. Clark, 406, 453. 
 Warmouth, EJx parte, 396. 
 Warren v. Keep, 550. 
 Warring v. Mayor of Mobile, 300, 
 
 303. 
 Warts V. Hoagland, 253. 
 Washburn v. Phillips, 395. 
 Washburn & Marine Mfg. Co. v. 
 
 Reliance Ins. Co., 61. 
 Washington, The, 457. 
 Washington & Georgetown R. Co. 
 
 V. McDade, 765. 
 Washington Market Co. v. Hoff- 
 man, 543. 
 Washington University v. Rouse, 
 
 288. 
 Waterman v. Mackenzie, 550. 
 Water Co. v. Knoxville, 508. 
 Waters-Pierce Oil Co. v. Texas, 
 
 173. 
 Watkins v. Holman, 601, 621, 622, 
 
 725. 
 Watkins v. Smith, 620. 
 Watkins, Ex parte, 381-383, 385, 
 
 392. 
 Watson V. May, 372. 
 Watson V. Mercser, 121. 
 Watson V. Renwick, 753. 
 Watson V. Tarpley, 44, 61, 
 Watts V. Kinney, 636, 668. 
 
 Wayman v. Southard, 493, 496, 497, 
 
 663, 690. 
 Weakley v. Bucknell, 608. 
 Webster v. Cooper, 57. 
 Wtebster v. Fargo, 253. 
 Wecker v. National Enameling & 
 
 Stamping Co., 578. 
 Wedding v. Meyler, 363. 
 Welghtman v. Clark, 44, 63. 
 Wells, Bx parte, 382. 
 Welton V. Missouri, 18, 20. 
 Werner v. Charleston, 360. 
 West V. Louisiana, 176, 186, 241,. 
 
 242. 
 West V. State, 117. 
 Western Electric Supply Co. v. 
 
 Abbeville Electric Light & Pow- 
 er Co., 353. 
 Western Transp. Co. v. The Great 
 
 Western, 447. 
 Western Turf Asso. v. Greenberg,. 
 
 227, 229. 
 Western Union Tel. Co. v. Atty.. 
 
 Gen., 274. 
 Western Union Tel. Co. v. Baker,^ 
 
 803. 
 Western Union Telegraph Co. v> 
 
 Call Pub. Co., 346, 349. 
 Western Union Tel. Co. v. James, 
 
 42, 162. 
 Western Union Tel. Co. v. Massa^ 
 
 chusetts, 263, 271. 
 Western Union Tel. Co. v. Mis- 
 souri, 272. 
 Western Union Tel. Co. v. New 
 
 Hope, 173. 
 Western Union Tel. Co. v. Pen- 
 dleton, 21, 23. 
 Western Union Tel. Co. v. Seay, 
 
 20. 
 Western Union Tel. Co. V. Tag- 
 
 gart, 152, 272. 
 Western Union Tel. Co. v. Texas, 
 
 20, 21, 23. 
 Weston V. Charleston, 262. 
 Wetmore v. Ryner, 542, 714, 719,. 
 
 737. 
 
TABLE OP CASES. 
 
 XCV 
 
 [EEFEBENCES ABE TO PAGES.] 
 
 W. F. Brown, The, 444. 
 Wheeler v. Jackson, 295. 
 Wheeling, Parkersburg & Cincin- 
 nati Transp. Co. v. City of 
 Wheeling, 306, 307. 
 Whelan v. United States, 456. 
 Wieless v. St. Louis, 540, 543. 
 Whitcomb v. Smithson, 578. 
 White V. Berry, 340. 
 White V. Cannon, 209. 
 White V. Greenhow, 508, 510, 513, 
 
 518, 519. 
 White V. Ewing, 545. 
 White V. Hart, 209, 291, 292, 296. 
 White V. Rankin, 549, 550. 
 Whitehead v. Shattuck, ,596-598, 
 
 602, 606, 626, 628, 656. 
 Whitford v. Clark County, 651, 
 
 653, 656, 657, 748. 
 Whitmore v. Amoskeag National 
 
 Bank, 527, 533, 670. 
 Whitney V. Dick, 381, 383, 401. 
 Whitney v. Robertson, 47. 
 Whitney v. Wright, 619, 620. 
 Whitten v. Tomlinson, 381, 389, 
 
 390, 392. 
 Wickliffe v. Davis, 693. 
 WicklifEe v. Owings, 602. 
 Wilcox V. Jackson, 612. 
 Wiley V. Sinkler, 528, 541, 553. 
 Wilkerson v. People of the United 
 
 States in Utah, 116. 
 Wilkerson v. Rahrer, 23, 38. 
 Wilkes' Case, 88. 
 
 Wilkes County Com'rs v. Coler, 56. 
 Wilkins v. Malone, 94. 
 Willard v. Wood, 679-681. 
 Williamette Iron Bridge Co. v. 
 
 Hatch, 24, 31. 
 Williams v. Bank, 372. 
 Williams v. Bruffiy, 209. 
 Williams v. Bggleston, 44, 373. 
 Williams v. Fears, 224, 225. 
 Williams v. Gaylord, 58. 
 Williams v. Mississippi, 2i79. 
 Williams v. Nottoway, 714, 719. 
 Williams v. State, 243. 
 
 Williams, Ex parte, 395. 
 Williams, The, 440, 445. 
 Williamson v. Allison, 695. 
 Williamson v. Suydam, 44, 52, 58, 
 
 493. 
 Wills V. Russel, 750, 756. 
 Wilmington & W. R. R. Co. v. 
 
 Reid, 289, 290. 
 Wilson V. Black Bird Creek Marsh 
 
 Co., 17, 24, 146, 162. 
 Wilson V. Fine, 619. 
 Wilson V. Life Ins. Co., 366. 
 Wilson V. McNamee, 24, 446. 
 Wilson V. North Carolina, 56, 245, 
 
 507. 
 Wilson V. Oswego Township, 578. 
 Wilson V. Palmer, 619. 
 Wilson V. Sanford, 551. 
 Wilson V. Seligman, 702. 
 Wilson V. United States, 99, 
 Wilson V. Vaughn, 521. 
 Wilson, Ex parte, 69, 86, 88, 102, 
 
 105, 106, 196. 
 Winans y. New York & B. R. Co. 
 
 749. 
 Winchester v. Loud, 578. 
 Windom v. Howard, 663. 
 Windsor v. McVeigh, 362. 
 Winona & St. Peter Land Co. v. 
 
 Minnesota, 253, 254, 256. 
 Wiscart v. Dancky, 346. 
 Wisconsin v. Pelican Ins. Co., 
 
 340. 
 Wisconsin Central R. Co. t. Price 
 
 County, 262, 613. 
 Wisconsin Central R. Co. v. United 
 
 States, 548. 
 Wisconsin M. & P. R. Co. v. Jacob- 
 son, 249, 251. 
 Wisconsin, Ex parte, 569. 
 Wishart v. The Nixon, 444. 
 Wisner, Ex parte, 570, 572, 670. 
 Witherspoon v. Duncan, 262. 
 Wolf V. Cook, 731. 
 Wolff V. New Orleans, 291, 296. 
 Wong Kim Ark, 191. 
 Wood V. Brady, 29Y. 
 
xevi 
 
 TABLE OP CASES CITED. 
 
 [kefekences are to pages.] 
 
 Wood V. Brush, 278, 389. 
 
 Wood V. Durrett, 617. 
 
 Wood V. Lide, 365. i 
 
 Wood V. Morton, 621. 
 
 Wood V. United States, 756. 
 
 Wood V. Weimer, 757. 
 
 Woods V. Freeman, 57. 
 
 Woodruff V. Parham, 20, 23, 36, 
 
 299 300. 
 Woodruff V. Trapnell 294, 298. 
 Woods V. Huffman, 663. 
 Woolridge v. McKenna, 731. 
 Worthington v. Mason, 764, 807. 
 Worster v. Canal Bridge, 691. 
 Wriglit V. Bales, 493, 744, 749. 
 Wriglit V. Compton, 692. 
 Wriglit V. Nagle, 55, 64, 286. 
 Wright V. Roseberry, 614, 615, 617. 
 Wright V. Thompson, 617. 
 Wright V. Wilcox, 692. 
 Wurts V. Hoogland, 282. 
 W. W. Cargill Co. v. Minnesota 
 
 Ra,ilroad & Warehouse Com., 
 
 268. 
 Wyman v. Southard, 52. 
 Wyman v. Wallace, 523, 525. 
 
 Yale V. Coddington, 641. 
 Yarbrough, Ex parte, 15, 385. 
 Yardley v. Dickson, 546. 
 Yazoo & Mississippi Valley R. R. 
 
 Co. V. Adams, 353, 355. 
 Yeaton v. United States, 457. 
 Yerger, Ex parte, 317; 334, 381^ 
 
 383, 387. 
 Yick Wo V. Hopkins, 251, 263. 
 Yonley v. Lavender, 43. 
 York V. State, 245. 
 York V. Texas, 176. 
 York Mfg. Co. v. Illinois Cent. R. 
 
 Co., 749. 
 Young V. Black, 759, 760. 
 Young V. Martin, 797, 800. 
 Young V. Porter, 607. 
 Young V. Rankiris, 710- 
 
 Zeller v. Eckert, 797, 800, 801, 808. 
 Zeller v. Switzer, 361. 
 Zych V. American Car & Foundry 
 Co., 659, 747. 
 
MAGNA CARTA. 
 
MAGNA CARTA. 
 
 SETT 
 
 CARTA DE LIBERTATIBUS REGIUS JOHANNES. 
 
 CoNCESsis Die Junii QuiifTO Decimo, A. D. 1215, Is An'N'o 
 Regni Septimo Decimo. 
 
 [Johannes Dei gratia rex Angliae, dominus Hybemiae, dux 
 Normanniae et Aquitanniae, comes Andegaviae, arehiepiscopis, 
 episcopis, abbatibus, comitibus, baronibus, justiciariis, f oresta- 
 riis, vieecomitibus, praepositia, ministris et omnibus ballivis et 
 fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute 
 animae nostrae et omnium antecessorum et haeredum nostror- 
 um, ad honorem Dei et exaltationem sanetae eeelesiae, et emen- 
 dationem regni nostri, per consilium venerabilium patrum nos- 
 trorum, Stephani Cantuariensis archiepiscopi totius Angliae pri- 
 matis et sanetae Romanae eeelesiae cardinalis, Henrici Dublinen- 
 sis archiepiscopi, WiUelmi Londoniensis, Petri Wintoniensis, 
 Joscelini Bathoniensis et G-lastoniensis, Hugonis Lineolniensis, 
 "Walteri "Wygomensis, WiUelmi Covetrensis, et Benedicti Rof- 
 fenis episcoporum; magistri Pandulfi domini papae subdiaeoni 
 et f amiliaris, f ratris Eymerici magistri militiae templi in Anglia ; 
 et nobilium virorum WiUelmi Mariscalli comitis Pembrok, Wil- 
 lelmi comitis Saresberiae, WiUelmi comitis Warrenniae, Wil- 
 lelmi comitis Arundelliae, Alani de Galweya, constabularii Scot- 
 tiae, Warini filii Geroldi, Petri filii Hereberti, Hubert! de 
 Burgo senescaUi Pictaviae, Hugonis de Nevilla, Mathei fllii 
 Hereberti, Thomae Basset, Alani Basset, Philippi de Albiniaco, 
 Eoberti de Eoppelay, Johannis Mariscalli, Joha'nnis filii Hugo- 
 nis et aliorum fidelium nostrorum :] 
 
 1. In primis coneessisse Deo et hac praesenti carta nostra con- 
 firmasse, pro nobis et haeredibus nostris in perpetuum, quod 
 Anglicana ecclesia libera sit, et habeat jura sua Integra, et lib- 
 
C MAGNA CARTA. 
 
 ertates suas illaesas; [et ita volumus observari; quod apparet 
 ex eo quod libertatemeleetionum, quae maxima et magis neces- 
 saria reputatur eeelesiae Anglieanae, mera et spontanea volun- 
 tate, ante diseordiam inter nos et barones nostros motam, con- 
 cessimus et carta nostra confirmavimus, et eam optinuimus a 
 domino papa Innoeentio tertio confirmari ; quam et nos observa- 
 bimus et ab haeredibus nostris in perpetuum bona fide volumus 
 observari.] Concessimus etiam omnibus liberis hominibus reg- 
 ni nostri, pro nobis et haeredibus nostris in perpetuum, omnes 
 libertates subseriptas, habendas et tenendas, eis et haeredibus 
 suis, de nobis et haeredibus nostris; 
 
 2. Si quis comitum vel baronum nostrorum, sive aliorum ten- 
 entium de nobis in capite per servitium militare, mortuus fue- 
 rit, et cum decesserit haeresi suus plenae aetatis fuerit et rele- 
 vium debeat, habeat haereditatem suam per antiquum relevium ; 
 scilicet haeres vel haeredes eomitis de baronia comitis Integra 
 per centum libras ; haeres vel haeredes baronis de baronia Inte- 
 gra per centum libras ; haeres vel haeredes militis de f eodo mili- 
 tis integro per centum solidos ad plus; et qui minus debuerit 
 minus det secundum antiquam consuetudinem feodorum. 
 
 3. Si autem haeres alicujus talium fuerit infra aetatem et 
 fuerit in custodia, cum ad aetatem pervenerit, habeat haeredi- 
 tatem suam sine relevio et sine fine. 
 
 4. Gustos terrae hujusmodi haeredis qui infra aetatem fuerit, 
 non capiat de terra haeredis nisi rationabiles exitus, et ration- 
 abiles . consuetudines, et rationabilia servitia, et hoe sine de^ 
 structione et vasto hominum vel rerum ; et si nos commiserimus 
 custodiam alicujus talis terrae vicecomiti vel alicui alii qui de 
 exitibus illius nobis respondere debeat, et ille destructionem de 
 custodia fecerit vel vastum, nos ab illo capiemus emendam, et 
 terra committatur duobus legalibus et discretis hominibus de 
 feodo illo, qui de exitibus respondeant nobis vel ei cui eos as- 
 signaverimus ; et si dederimus vel vendideriihus alicui custodi- 
 am alicujus talis terrae, et ille destructionem inde fecerit vel 
 vastum, amittat ipsam custodiam, et tradatur duobus legalibus 
 et discretis hominibus de feodo illo qui similiter nobis respond- 
 eant sicut praedictum est. 
 
 5. Gustos autem, quamdiu custodiam terrae habuerit, susten- 
 tet domes, parcos, vivaria, stagna, molendina, et cetera ad ter- 
 ram illam pertinentia, de exitibus terrae, ejusdem; et reddat 
 
MAGNA CARTA. , CI 
 
 haeredi, cum ad plenam aetatem pervenerit, f erram suam totam 
 instauratam de earrueis et wainnagiis secundum quod tempus 
 wainnagii exiget et exitus terrae rationabiliter poterunt sus- 
 tinere. 
 
 6. Haeredes maritentur absque disparagatione, [ita tamen 
 quod, antequam contrahatur matrimonium, ostendatur propin- 
 quis de eonsanguinitate ipsius haeredis] . 
 
 7. Vidua post mortem mariti sui statim et sine difficultate 
 habeat maritagium et haereditatem suam, nee aliquid det pro 
 dote sua, vel pro maritagio suo, vel haereditate sua quam hae- 
 reditatem martius suus et ipsa tenuerint die obitus ipsius mari- 
 ti, et maneat in domo mariti sui per quadraginta dies post mor- 
 tem ipsius infra quos assignetur ei dos sua. 
 
 8. Nulla vidua distringatur ad se maritandum dum voluerit 
 vivere sine marito, ita tamen quod seeuritatem faciat quod sc' 
 non maritabit sine assensu nostro, si de nobis tenuerit, vel sine- 
 assensu domini sui de quo tenuerit, si de alio tenuerit. 
 
 9. Nee nos nee ballivi nostri seisiemus terram aliquam nee 
 redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt 
 ad debitum reddendum ; nee pleggii ipsius debitoris distringan- 
 tur quamdiu ipse capitalis debitor sufScit ad solutionem debiti; 
 et si capitalis debitor defecerit in solutione debiti, non babens 
 unde solvat, pleggii respondeant de debito ; et, si voluerint, ha- 
 beant terras et redditus debitoris donee sit eis satisfactum de 
 debito quod ante pro eo solverint, nisi capitalis debitor monstra- 
 verit se esse quietum inde versus eosdem pleggios. 
 
 [10. Si quis mutuo ceperit aliquid a Judaeis, plus vel minus^ 
 et moriatur ante-quam debitum ilium solvatur, debitum non 
 usuret quamdiu haeres fuerit infra aetatem, de quocumque ten- 
 eat; et si debitum illud incident in manus nostras, nos non ca- 
 piemus nisi catallum contentum in carta.] 
 
 [11. Et si quis moriatur, et debitum debeat Judaeis, uxor ejus; 
 habeat dotem suam, et nihil reddat de debito illo ; et si liberi ip- 
 sius defuncti qui fuerint infra aetatem remanserint, providean- 
 tur eis necessaria secundum tenementum quod fuerit defuncti, 
 et de residuo solvatur debitum, salvo servitio dominorum ; simili. 
 modo fiat de debitis quae debentur aliis quam Judaeis.] 
 
 [12. Nullum scutagium vel auxilium ponatur in regno nostro,. 
 nisi per commune consilium regni nostri, nisi ad corpus nostrum! 
 redimendum, et primogenitum filium nostrum militem faeien- 
 
Cll ' MAGNA CARTA. 
 
 dum, et ad filiam nostram primogenitam semel maritandam, et 
 ad haec non fiat nisi rationabile auxilium : simili modo fiat de 
 .auxiliis de civitate Londoniarum.] 
 
 13. Et eivitas Londoniarum habeat omnes antiquas libertates 
 et liberas eonsuetudines suas, [tam per terras, quam per aquas] . 
 Praeterea volumus et coneedimus quod onmes aliae civitates, et 
 burgi, et-villae, et portus, habeant omnes libertates et liberas 
 eonsuetudiues suas. 
 
 [14. Et ad habendum commune consilium regnj, de auxilio 
 assidendo aliter quam in tribus casibus praedictis, vel de scuta- 
 gio assidendo, summoneri faciemus archiepiscopos, episcopos, 
 abbates, eomites, et majores barones, sigillatim per litteras nos- 
 tras; et praeterea faciemus summoneri in generali, per vice- 
 comites et ballivos nostros, omnes illos qui de nobis tenent in 
 capite; ad certum diem, scilicet ad terminum quadraginta die- 
 rum ad minus, et ad certum locum; et in omnibus litteris illius 
 summonitionis causam summonitionis exprimemus; et sic facta 
 «ummonitione negotium ad diem assignatum procedat secundum 
 consilium illorum qui praesentes fuerint, quamvis non omnes 
 summoniti venerint.] 
 
 [15. Nos non coneedemus de cetero alicui quod capiat auxili- 
 um de liberis hominibus suis, nisi ad corpus suum redimendum, 
 «t ad faciendum primogenitum filium suum militem, et ad pri- 
 mogenitam filiam suam semel maritandam, et ad baec non fiat 
 nisi rationabile auxilium.] 
 
 16. NuUus distringatur ad faciendum majus servitium de fe- 
 odo militis, nee de alio libero tenemento, quam inde debetur. 
 
 17. Communia placita non sequantur curiam nostram sed 
 teneantur in aliquo loco certo. 
 
 18. Eecognitiones de nova dissaisina, de morte antecessoris, 
 et de ultima praesentatione, non capiantur nisi in suis comita- 
 tibus et hoc modo; nos, vel si extra regnum fuerimus, eapitalis 
 justiciarius noster, mittemus duos justiciaries per unumquem- 
 •que eomitatum per quatuor vices in anno, qui, cum quatuor mili- 
 tibus cujuslibet comitatus electis per eomitatum, capiant in 
 comitatu et in die et loco comitatus assisas praedictas. 
 
 19. Et si in die comitatus assigae praedictae capi non possint, 
 tot milites et libere tenentes remaneant de illis qui interfuerint 
 comitatui die illo, per quos possint judieia sufficienter fieri, sec- 
 Tindum quod negotium fuerit majus vel minus. 
 
 20. Liber homo non amercietur pro parvo delicto, nisi secun- 
 
MAGNA CARTA. Clll 
 
 dum modum delicti; et pro magno delicto amereietur secun- 
 dum magnitudinem delicti,, salvo contenemento suo ; et mercator 
 eodem mode salva mercandisa sua; et villanus eodem modo 
 amereietur salvo wainnagio suo, si inciderint in misericordiam 
 nostram; et nulla praedictarum misericordiarum ponatur, nisi 
 per sacramentum proborum hominum de visneto. 
 
 21. Comites et barones non amereientur nisi per pares suos, 
 et non nisi secundum modum delicti. 
 
 22. NuUus clericus amereietur [de laico tenemento suo], nisi 
 secundum modum aliorum praedictorum, et non secundum quan- 
 titatem beneficii sui ecclesiastiei. 
 
 23. Nee villa nee homo distringatur facere pontes ad riparias, 
 nisi qui ab antiquo et de jure facere debent. 
 
 24. NuUus vicecomes, constabularius, coronatores, vel alii bal- 
 livi nostri, teneant placita coronae nostrae. 
 
 [25. Omnes comitatus, hundredi, wapentakii, et trethingii, 
 sint ad antiquas firmas absque ullo incremento, exceptis domini- 
 cis maneriis nostras.] 
 
 26. Si aliquis tenes de nobis laicum feodum moriatur, et vice- 
 comes vel ballivus noster ostendat litteras nostras patentes de 
 summonitione nostra de debito quod defunctus nobis debuit, 
 liceat vicecomiti vel ballivo nostro attachiare et inbreviare ea- 
 talla defuneti inventa in laico feodo, ad valentiam illius debiti, 
 per visum legalium hominum, ita tamen quod nihil inde amov- 
 eatur, donee persolvatur nobis debitum quod elarum fuerit; et 
 residuum relinquatur executoribus ad faciendum testamentum 
 defuneti ; et, si nihil nobis debeatur ab ipso, omnia catalla cedant 
 defuncto, salvis uxori ipsius et pueris rationabilibus partibus 
 suis. 
 
 [27. Si aliquis liber homo intestatus deeesserit, catalla sua 
 per manus propinquorum parentum et amicorum suorum, per 
 visum ecclesiae distribuantur, salvis unicuique debitis quae de- 
 functus ei debebat.] 
 
 28. NuUus constabularius, vel alius ballivus noster, capiat 
 blada vel alia catalla alicujus, nisi statim inde reddat denarios, 
 aut respectum inde habere possit de voluntate venditoris. 
 
 29. Nullus constabularius distringat aliquem militem ad dan- 
 dum denarios pro custodia castri, si facere voluerit custodiam 
 illam in propria persona sua, vel per alium probum hominem, 
 si ipse earn facere non possit propter rationabilem causam ; et si 
 nos duxerimus vel miserimus eum in exercitum, erit quietus de 
 
CIV MAGNA CAETA. 
 
 eustodia, secundum quantitatem temporis quo per nos fuerit 
 in exereitu. 
 
 30. NuUus vieeeomes, vel ballivus noster, vel aliquis alius, 
 capiat equos vel caretas alicujus liberi hominis pro cariagio 
 faciendo, nisi de voluntate ipsius liberi homiais. 
 
 31. Nee nos nee ballivi nostri capiemus alienurh boscum ad 
 castra, vel alia agenda nostra, nisi per voluntatem ipsius cujus 
 boscus ille fuerit. 
 
 32. Nos non tenebimus terras illorum qui convicti fuerint de 
 felonia, nisi per unum annum et unum diem, et tunc reddantur 
 terrae dominis feodorum. 
 
 33. Omnes kydelli de cetero deponantur penitus de Thamisia, 
 et de Medewaye, et per totam Angliam, nisi per costeram maris. 
 
 34. Breve quod vocatur Praecipe de cetero non fiat alicui de 
 aliquo tenemento unde liber homo amittere possit curiam suam. 
 
 35. Una mensura vini sit per totum regnum nostrum, et una 
 mensura cervisiae, et una mensura bladi, scilicet quarterium 
 Londoniense, et una latitude pannorum tinctorum et russet- 
 torum et halbergettorum, scilicet duae ulnae infra listas; de 
 ponderibus autem sit ut de mensuris. 
 
 36. Nihil detur vel capiatur de cetero pro brevi inquisitionis 
 de vita vel membris, sed gratis concedatur et non negetur. 
 
 37. Si aliquis teneat de nobis per feodifirmam, vel per sokagi- 
 um, vel per burgagium, et de alio terram teneat per servitium 
 militare, nos non habebimus custodiam haeredis nee terrae suae 
 quae est de feodo alterius, oceasione illius feodifirmae, vel so- 
 kagii, vel burgagii ; nee habebimus custodiam illius feodifirmae, 
 vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servitium 
 militare. Nos non habebimus custodiam haeredis vel terrae 
 alicujus, quam tenet de alio per servitium militare, oceasione 
 alicujus parvae sergenteriae quam tenet de nobis per servitium 
 reddendi nobis cultellos, vel sagittas, vel hujusmodi. 
 
 38. NuUus ballivus ponat de cetero aliquem ad legem simplici 
 loquela sua, sine testibus fidelibus ad hoc inductis. 
 
 39. NuUus liber homo capiatur, vel imprisonetur^ aut dissais- 
 iatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, 
 nee super eum ibimus, nee super eum mittemus, nisi per legale 
 judicium parium suorum vel per legem terrae. 
 
 40. NuUi vendemus, nulli negabimus, aut differemus, rectum 
 aut justiciam. 
 
 41. Omnes mercatores. habeant salvum et securum exire de 
 
MAGNA CARTA, CV 
 
 Anglia, et venire in Angliam, at morari et ire per Angliam, tarn 
 per terram quam per aquam, ad emendum et vendendum, sine 
 omnibus malis toltis, per antiquas et reetas consuetudines, prae- 
 terquam in tempore gwerrae, et si sint de terra contra nos 
 gwerrina; et si tales inveniantur in terra nostra in principio 
 gwerrae, attachientur sine dampno eorporum et rerum. donee 
 seiatur a nobis vel eapitali justiciario nostro quomodo merea- 
 tores terrae nostrae tractentur, qui time invenientur in terra 
 contra nos gwerrina ; et si nostri' salvi sint ibi, alii salvi sint in 
 terra nostra. 
 
 [42. Liceat unieuique de eetero exire de regno nostro, et re- 
 dire, salvo et secure, per terram et per aquam, salva fide nostra, 
 nisi tempore gwerrae per aliquod breve tempus, propter com- 
 munem utilitatem regni, exceptis imprisonatis et utlagatis sec- 
 undum legem regni, et gente de terra contra nos gwerrina, et 
 mercatoribus de quibus flat sieut praedictum est.] 
 
 43. Si quis tenuerit de aliqua escaeta, sieut de honore Wal- 
 ingeford, Notingeham, Bononiae, Lainkastriae, vel de aliis es- 
 kaetis, quae sunt in manu nostra, et sunt baroniae, et obierit, 
 haeres ejus non det aliud relevium, nee faciat nobis aliud serv- 
 itium quam f aceret baroni si baronia ilia esset in manu baronis ; 
 -et nos eodem modo earn tenebimus quo baro earn tenuit. 
 
 44. Homines qui manent extra f orestam non veniant de eetero 
 -coram justiciariis nostrie de foresta per communes summoni- 
 tiones, nisi sint in placito, vel pleggii alieujus vel aliquorum, 
 -qui attachiati sint pro foresta. 
 
 [45. Nos non faciemus justiciarios, constabularies, viceeom- 
 ites, vel ballivos, nisi de talibus qui sciant legem regni et earn 
 bene velint observare.] 
 
 46. Omnes barones qui fundaverunt abbatias, unde habent 
 -cartas regum Angliae, vel antiquam tenuram, habeant earum 
 eustodiam cum vacaverint, sieut habere debent. 
 
 47. Omnes forestae quae af orestatae sunt tempore nostro, sta- 
 tim deafforestentur ; et ita fiat de ripariis quae per nos tempore 
 nostro positae sunt in defenso. 
 
 [48. Omnes malae consuetudines de forestis et warennis, et 
 ■ de forestariis et warennariis, vicecomitibus et eorum ministris, 
 ripariis et earum custodibus, statim inquirantur in quolibet 
 -comitatu per duodecim milites juratos de eodem eomitatu, qui 
 debent eligi per probos homines ejusdem comitatus, et infra 
 .quadraginta dies post inquisitionem factam, penitus, ita quod 
 
CVl MAGNA CARTA. 
 
 numquam revoeentur, deleantur per eosdem, ita quod nos hoe 
 seiamus prius, vel justieiarius noster, si in Anglia non fueri- 
 mus.] 
 
 [49. Omnes obsides et cartas statim reddemus quae liberatae 
 fuerunt nobis ab Anglicis in seeuritatem pacis vel fidelis serv- 
 itii.] 
 
 [50. Nos amovebimus penitus de balliis parentes Gerardi de 
 Athyes, quod de cetero nuUam habeant balliam in Anglia; En- 
 gelardum de Cygoniis, Andream, Petrum et Gyonem de Cancel- 
 lis, Gyonem de Cygoniis, Galfridum de Martyni et fratres ejus, 
 Philippum Mark et fratres ejus, et Galfridum nepotem ejus, et 
 totam sequelam eorumdem.] 
 
 [51. Bt statim post paxjis reformationem amovebimus de 
 regno omnes alienigenas milites, balistarios, servientes, stipen- 
 diaries, qui venerint cum equis et armis ad nocumentum regni.] 
 
 [52. Si quis fuerit disseisitus vel elongatus per nos sine legali 
 judicio parium suorum, de terris, eastallis, libertatibus, vel jure 
 suo, statim ea ei restituemus ; et si eontentio super hoc orta fuerit, 
 tunc inde fiat per judicium viginti quinque baronum, de quibus 
 fit mentio inf erius in seeuritate pacis ; de omnibus autem illis de 
 quibus aliquis disseisitus fuerit vel elongatus sine legali judicio 
 parium suorum, per Henricum regem patrem nostrum vel per 
 Ricardum regem fratrem nostrum, quae in manu nostra habe- 
 mus, vel quae alii tenent, quae nos oporteat warantizare, re- 
 spectum habebimus usque ad communem terminum crueesigna- 
 torum ; exceptis illis de quibus placitum motum fuit vel inquisi- 
 tio facta per praeceptum nostrum, ante suceptionem crucis nos- 
 trae : cum autem redierimus de peregrinatione nostra, vel si 
 forte remanserimus a peregrinatione nostra, statim inde plenam 
 justiciam exhibebimus.] 
 
 [53. Eundeni autem respectum habebimus, et eodem modo, 
 de justicia exhibenda de forestis deafforestandis vel remansuris 
 forestis, quas Henricus pater noster vel Ricardus frater noster 
 afforestaverunt, et de custodiis terrarum quae sunt de alieno 
 feodo, cujusmodi custodias hucusque habuimus occasione feodi 
 quod aliquis de nobis tenuit per servitium miMtare, et de abba- 
 tiis quae fundatae fuerint in feodo alterius quam nostro, in 
 quibus dominus feodi dixerit se jus habere; et cum redierimus, 
 vel si remanserimus a peregrinatione nostra, super hiis conque- 
 rentibus plenam justiciam statim exhibebimus.] 
 
MAGNA CARTA. CVll 
 
 54. Nullus capiatur nee imprisonetur propter appellum foe- 
 minae de morte alterius quam viri sui. 
 
 [55. Omnes fines qui injuste et contra legem terrae facti sunt 
 nobiseum, et omnia amerciamento facta imjuste et contra legem 
 terrae, omnino condonentur, vel fiat inde per judicium viginti 
 quinque baronum de quibis fit mentio inferius kx securitate- 
 paeis, vel per judicium majoris partis eorumdem, una cum prae- 
 dicto Stephano Cantuariensi archiepiscopo, si interesse potent,, 
 et aliis quos seeum ad hoc vocare voluerit: et si interesse non 
 poterit, nihilominus proeedat negotium sine eo, ita quod, si 
 aliquis vel aliqui de praedictis viginti quinque baronibus fuerint 
 in simili querela, amoveantur quantum ad hoc judicium, et alii 
 lodo illorum per residues de eisdem viginti quinque, tantum ad 
 hoc faciendum eleeti et jurati substituantur.] 
 
 [56. Si nos dissaisivimus vel elongavimus "Walenses de terris 
 vel libertatibus vel rebus aliis, sine legali judicio parium suo- 
 rum, in Anglia vel in Wallia, eis statim reddantur ; et si eonten- 
 tio super hoe orta fuerit, tune inde fiat in marehia per judicium 
 parium suorum, de tenementis Angliae secundum legem An- 
 gliae, de tenementis Walliae secundum legem Walliae, de tene- 
 mentis marchiae secundum legem marchiae. Idem facient Wal- 
 enses nobis et nostris.] 
 
 [57. De omnibus autem illis de quibus aliquis Walensium dis- 
 saisitus fuerit vel elongatus sine legali judicio parium suorum, 
 per Henricum regem patrem nostrum vel Eicardum regem frat- 
 rem nostrum, quae nos in manu nostra habemus, vel quae alii 
 tenent quae nos oporteat warantizare, respectum habebimus 
 usque ad communem terminum crucesignatorum, illis exceptis 
 de quibus plaeitum motum fuit vel inquisitio facta per praecep- 
 tum nostrum ante susceptionem crucis nostrae; cum autem re- 
 dierimus, vel si forte remanserimus a peregrinatione nostra, 
 statim eis inde plenam justiciam exhibebimus, secundum leges 
 Walensium et partes praedietas.] 
 
 [58. Nos reddemus filium Lewelini statim, et omnes obsides 
 de Wallia, et cartas quae nobis liberatae fuerunt in securitatem 
 pacis.] 
 
 [59. Nos faeiemus AUexandro regi Seottorum de sororibus 
 suis, et obsidibus reddendis, et libertatibus suis, et jure sue, sec- 
 undum formam in qua faeiemus aliis baronibus nostris, Angliae,. 
 nisi aliter esse debeat per cartas quas habemus de Willelma 
 h 
 
CVIU MAGNA CAETA. 
 
 patre ipsiiis, quondam rege Seottorum; et hoe erit per judiemm 
 parium suorum in eiiria nostra.] 
 
 60. Omnes autem istas eonsuetudines praedietas et libertates 
 qiias nos concessimus in regno nostro tenendas quantum ad nos 
 pertinet erga nostros, omnes de regno nostro, tam cj.eriei quam 
 laici, observent quantum ad se pertinet erga suos. 
 
 [61. Cum autem pro Deo, et ad emendationem regni nostri, 
 et ad melius sopiendum discordiam inter nos et barones nostros 
 ortam, haec omnia praedicta eoneesserimus, volentes ea integra 
 et flrma stabilitate gaudere in perpetuum, facimus et concedi- 
 mus eis securitatem subscriptum ; videlicet quod barones eligant 
 viginti quinque barones de regno quos voluerint, qui debeant 
 pro totis viribus suis observare, tenere, et f aeere observari, pa- 
 cem et libertates quas eis concessimus, et hac praesenti carta 
 nostra confirmavimus, ita scilicet quod, si nos, vel justiciarius 
 noster, vel ballivi- nostri, vel aliquis de ministris nostris, in ali- 
 quo erga aliquem deliquerimus, vel aliquem articulorum pacis 
 aut securitatis transgressi f uerimus,, et delictum ostensum fuerit 
 quatuor baronibus de praedictis viginti quinque baronibus, illi 
 quatuor barones aceedant ad nos vel ad justiciarium nostrum, si 
 fuerimus extra regnum, proponentes nobis excessum: petent ut 
 excessum ilium sine dilatione faciamus emendari. Et si nos 
 excessum non emendaverimus, vel, si fuerimus extra regnum, 
 justiciarius noster non emendaverit infra tempus quadraginta 
 dierum computandum a tempore quo monstratum fuerit nobis 
 vel justiciario nostro si extra regnum fuerimus, praedicti qua- 
 tuor barones referant eausam illam ad residues de viginti quin- 
 que baronibus, et illi viginti quinque barones cum communa to- 
 tius terra distmngent et gravabunt nos modis omnibus quibus 
 poterunt, scilicet per captionem castrorum, terrarum, possessio- 
 num, et aliis modis quibus poterunt, donee fuerit emendatum sec- 
 undum arbitrium eorum, salva persona nostra et reginae nostrae 
 et liberorum nostrorum ; et cum fuerit emendatum intendent no- 
 bis sieut prius fecerunt. Et quicumque voluerit de terra juret 
 quod ad praedicta omnia exsequenda parebit mandatis praedict- 
 orum viginti quinque baronum, et quod gravabit nos pro posse 
 suo cum ipsis, et nos publice et libere damns licentiam jurandi 
 cuilibet qui jurare voluerit, et nuUi umquam jurare prohibebi- 
 mus. Omnes autem illos de terra qui per se et sponte sua noluer- 
 int jurare viginiti quinque baronibus, de distringendo et gravan- 
 do nos cum eis, faciemus jurare eosdem de mandate nostro, sicut 
 
MAGNA CHAETA. CIX 
 
 praedietum est. Et si aliquis de viginti quiaque baronibiis de- 
 cesserit, vel a terra recesserit, vel aliquo alio modo impeditus 
 fuerit, quo minus ista praedicta possent exsequi, qui residui 
 fuerint de praedictis viginti quinque baronibus eligant alium 
 loco ipsius, pro arbitrio sue, qui simili modo erit juratus quo et 
 ceteri. In omnibus autem quae istis viginti quinque baroni- 
 bus committuntur exsequenda, si forte ipsi viginti quinque 
 praesentes fuerint, et inter se super re aliqua diseordaverint, 
 vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum 
 habeatur et firmum quod major pars eorum qui praesentes fuer- 
 int providerit, vel praeeeperit, ac si omnes viginti quinque in 
 hoc eonsensissent ; et praedicti viginti quinque jurent quod om- 
 nia antedieta fideliter observabunt, et pro toto posse suo faeient 
 observari. Et nos nihil impetrabimus ab aliquo, per nos nee 
 per alium, per quod aliqua istarum eoneessionum et libertatum 
 revocetur vel minuatur; et, si aliquid tale impetratum fuerit, 
 irritum sit et inane et numquam eo utemur per nos nee per 
 alium.] 
 
 [62. Et omnes malas voluntates, indignationes, et rancores, 
 ortos inter nos et homines nostros, clerieos et laieos, a tempore 
 discordiae, plene omnibus remisimus et eondonavimus. Prae- 
 terea omnes transgressiones factas oceasione ejusdem discor- 
 diae, a Pascha anno regni nostri sextodecimo usque ad pacem 
 reformatam, plene remisimus omnibus, clericis et laicis, et 
 quantum ad nos pertinet plene eondonavimus. ' Et insuper feci- 
 mus eis fieri litteras testimoniales patentes domini Stephani Can- 
 tuareiensis archiepiscopi, domini Henrici Dublinensis archie- 
 piscopi, et episeoporum praedictorum, et magistri Pandulfi, su- 
 per securitate ista et concessionibus praefatis.J 
 
 [63. Quare volumus et firmiter praecipimus quod Anglicana 
 ecclesia libera sit et quod homines in regno nostro habeant et 
 teneant omnes praefatas libertates, jura, et concessiiones, bene 
 et in pace, libere et quiete, plene et integre, sibi et haeredibus 
 suis, de nobis et haeredibus nostris, in omnibus rebus et locis, 
 in perpetuum, sicut praedietum est. Juratum est autem tam 
 ex parte nostra quam ex parte baronum, quod haec omnia su- 
 pradicta bona fide et sine male ingenio observabuntur. Testi- 
 bus supradictis et multis aliis. Data per manum nostram in 
 prato quod vocatur Runingmede, inter Wiindelesorum et Stanes, 
 .quinto decimo die Junii, anno regni nostri septimo decimo.] 
 
ex 
 
 MAGNA CARTA. 
 
 Matt. Paris, p. 262. Hi autem sunt xxv. barones eleeti, 
 
 Comes de Clare. 
 Comes Altiemarlae. 
 Comes Glovemiae. 
 Comes Wintoniensis. 
 Comes Herefordengis. 
 Comes Rogerus (Bigot). 
 Comes Robertus (de ^ere). 
 Willelmus Marescallus, Junior. 
 Robertus Filius Walteri, Senior. 
 Gilbertus de Clare. 
 Eustachlus de Vesci. 
 Hugo Bigod. 
 Willelmus de Munbrai. 
 
 Major de Lundoniis. 
 Willelmus de Lanvalay. 
 Robertus de Ros. 
 Constabularius Cestriae. 
 Richardus de Perci. 
 Johannes Filius Roberti. 
 Willelmus Malet. 
 Gaufridus de Say. 
 Rogerus de Mumbezon. 
 Willelmus de Huntingfeld. 
 Ricardus de Muntfichet. 
 Willelmus de Albineio. 
 
MAGNA CARTA/ 
 
 THE GREAT CHARTER OF LIBERTIES OF KING JOHN, 
 
 Granted at Runingmede, June 15, A. D. 1215, in the Setek 
 TEENTH Year of His Reign. 
 
 [John, by the grace of God King of England, Lord of Ireland, 
 Duke of Normandy, and Aquitaine, and Count of Anjou, to his 
 Archbishops, Bishops, Abbots, Earls, Barons, Justiciaries, Fores- 
 ters, Sheriffs, Governors, Officers, and to all Bailiffs, and his 
 lieges, greeting. Know ye, that we, in the presence of God, and 
 for the salvation of our soul, and the souls of our ancestors and 
 heirs, and unto the honour of God and the advancement of Holy 
 Church, and amendment of our Realm, by advice of our vener- 
 able Fathers, Stephen, Archbishop of Canterbury, Primate of all 
 England and Cardinal of the Holy Roman Church, Henry, Arch- 
 bishop of Dublin, William of London, Peter of Winchester, 
 Jocelin of Bath and Glastonbury, Hugh of Lincoln, Walter of 
 Worcester, William of Coventry, Benedict of Rochester, Bish- 
 ops ; of Master Pandulph, Sub-Deacon and Familiar of our Lord 
 the Pope, Brother Aymeric, Master of the Knights-Templars in 
 
 1 The Text of Magna Carta here printed is that given by "William 
 Stubbs, Regius Professor of Modern History in Oxford University, in 
 "Documents Illustrative of English History." 
 
 The translation printed is that given by E. S. Creasy, Barrister at 
 Law, Professor of History in University College, London, in "The Rise 
 and Progress of the English Constitution." 
 
 In a few places in the translation, indicated by notes, we have substi- 
 tuted words taken from the translation given by Richard Thomson in 
 his Essay on Magna Carta, and (where Indicated) from that of Thomas 
 P. Taswell-Langmead, given in his "English Constitutional History." 
 
 The clauses and sentences omitted in Henry III.'s re-issues have been 
 placed within brackets, as given in the text printed by Mr. Taswell- 
 Langmead. 
 
CXll MAGNA CARTA. 
 
 England; and of the Noble Persons, William Mareseall, Earl 
 of Pembroke, William, Earl of Salisbury, William, Earl of War- 
 ren, William, Earl of Arundel, Alan de Galloway, Constable of 
 Scotland, Warin Pitz Gerald, Peter Fitz Herbert and Hubert 
 de Burgh, Seneschal of Poitou, Hugh de Neville, Matthew Fitz 
 Herbert, Thomas Basset, Alan Basset, Philip of Albiney, Robert 
 de Roppell, John Mareschal, John Fitz Hugh, and others our 
 liegemen], ^ have, in the first place, granted to God, and by this 
 our present charter confirmed, for us and our heirs for ever: 
 
 1. That the church of England shall be free, and have her 
 whole rights, and her liberties inviolable; [and we will have 
 them so observed, that it may appear thence, that the freedom 
 of elections, which is reckoned chief and indispensable to the 
 English church, and which we granted and confirmed by our 
 charter, and obtained the confirmation of the same from our 
 Lord the Pope Innocent HI., before the discord between us and 
 our barons, was granted of mere free will; which charter we 
 shall observe, and we do will it to be faithfully observed by our 
 heirs for ever] . 2. We also have granted to all the freemen of 
 our kingdom, for us and for our heirs for ever, all the under- 
 written liberties, to be had and holden by them and their heirs, 
 of us and our heirs for ever : If ^ any of our earls, or barons, or 
 others, who hold of us in chief by military sesrvice, shall die, 
 and at the time of his death his heir shall be of full age, and 
 owes a relief, he shall have his inheritance by the ancient relief ; 
 that is to say, the heir or heirs of an earl, for a whole earldom, 
 by a hundred pounds ; the heir or heirs of a baron, for a whole 
 barony, by a hundred pounds ; the heir or heirs of a knight, for 
 a whole knight's fee, by a hundred shillings at most; and who- 
 ever oweth less shall give less, according to the ancient custom 
 of fees. 3. But if the heir of any such shall be under age, and 
 shall be in ward when he comes of age, he shall have his inherit- 
 ance without relief and without fine. 4. The keeper of the land 
 of such an heir being under age, shall take of the land of the 
 heir none but reasonable issues, reasonable customs, and reason- 
 able services, and that without destruction and waste to his 
 men and his goods ; and if we commit the custody of any such 
 lands to the sheriff, or any other who is answerable to us for the 
 issues of the land, and he shall make destruction and waste of 
 
 2 H 1 of text. 
 
 3 H 2 of text 
 
MAGNA CAETA. Cxiii 
 
 the lands which he hath in custody, we will take of him amends, 
 and the land shall be committed to two lawful and discreet men 
 of that fee, who shall answer for ,the issues to us, or to him to 
 whom we shall assign them; and if we sell or give to any one 
 the custody of any such lands, and he therein make destruction 
 or waste, he shall lose the same custody, which shall be com- 
 mitted to two lawful and discreet men of that fee, who shall 
 in like manner answer to us as aforesaid. 5. But the keeper, 
 so long as he shall have the custody of the land, shall keep up 
 the houses, parks, warrens, ponds, mills, and other things per- 
 taining to the land, out of the issues of the same land ; and shall 
 deliver to the heir when he comes of full age, his whole land, 
 stocked with ploughs and carriages, according as the time of 
 wainage shall require, and the issues of the land can reasonably 
 bear. 6. Heirs shall be married without disparagement, [and so 
 that before matrimony shall be contracted those who are near 
 in blood to the heir shall have notice]. 7.* A widow, after the 
 death of her husband, shall forthwith and without difficulty 
 have her marriage and inheritance; nor shall she give anything 
 for her dower, or her marriage, or her inheritance, which her 
 husband and she held at the day of his death; and she may 
 remain in the mansion house of her husband forty days after 
 his death, within which term her dower shall be assigned. 8. No 
 widow shall be distrained to marry herself, so long as she has 
 a mind to live without a husband ; but yet she shall give security 
 that she will not marry without our assent, if she holds of us ; or 
 without the consent of the lord of whom she holds, if she hold 
 of another. 9. Neither we nor our bailiffs shall seize any land 
 or rent for any debt, so long as the chattels of the debtor are 
 sufficient to pay the debt; nor shall the sureties of the debtor 
 be distrained so long as the principal debtor is sufficient for the 
 payment of the debt ; and if the principal debtor shall fail in the 
 payment of the debt, not having wherewithal to pay it, then the 
 sureties shall answer the debt ; and if they will they shall have 
 the lands and rents of the debtor, until they shall be satisfied 
 for the debt which they paid for him, unless the principal 
 debtor can show himself acquitted thereof against the said 
 sureties. [10. If any one have borrowed anything of the Jews, 
 more or less, and die before the debt be satisfied, there shall be 
 no interest paid for that debt, so long as the heir is under age, 
 of whomsoever he may hold ; and if the debt fall into our hands 
 
CXIV MAGNA CAETA, 
 
 we will only take the chattel mentioned in the deed.] [11. And 
 if any one shall die indebted to the Jews, his wife shall have her 
 dower and pay nothing of that debt; and if the deceased left 
 children under age, they shall have necessaries provided for 
 them, according to the tenement of the deceased ; and out of the 
 residue the debt shall be paid, saving however, the service due 
 to the lords; and in like manner shall it be done touching debts 
 due to others than the Jews.] [12. No scutage or aid shall be 
 imposed in our kingdom, unless by the general council of our 
 kingdom; except for ransoming our person, making our eldest 
 son a knight, and once for marrying our eldest daughter; and 
 for these there shall be paid a reasonable aid. In like manner 
 it shall be concerning the aids of the City of London.] 13. And 
 the Oity of London shall have all its ancient liberties and free 
 customs, [as well by land as by water] : furthermore we will 
 and grant, that all other cities and boroughs, and towns and 
 ports, shall have all their liberties and free customs. [14. And 
 for holding the general council of the kingdom concerning the 
 assessment of aids, except in the three cases aforesaid, and for 
 the assessing of scutages, we will * cause to be summoned the 
 archbishops, bishops, abbots, earls, and greater barons of the 
 realm, singly by our letters. And furthermore we shall cause 
 to be summoned generally by our sheriffs and bailiffs, all others 
 who hold of us in chief, for a certain day, that is to say, forty 
 days before their meeting at least, and to a certain place; and 
 in all letters of such summons we will declare the cause of such 
 summons. And summons being thus made, the business of the 
 day shall proceed on the day appointed, according to the advice 
 of such as shall be present although all that were summoned 
 come not.] [15. We will not for the future grant to any one 
 that he may take aid of his own free tenants, unless to ransom 
 his body, and to make his eldest son a knight, and once to marry 
 his eldest daughter; and for this there shall be only paid a 
 reasonable aid.] 16. No man shall be distrained to perform 
 more service for a knight's fee, or other free tenement, than is 
 due from thence. 17. Common pleas shall not follow our court, 
 but shall be holden in some place certain. 18. Assizes of novel 
 disseisin, and of mort d 'ancestor, and' of darrien presentment, 
 shall not be taken but in their proper counties, and after this 
 
 * For Creasy's "shall." 
 
MAGNA CARTA, CXV 
 
 manner: "We, or, if we should be out of the realm, our chief 
 justiciary, shall send two justiciaries through every county four 
 times a year, who, with four knights, chosen out of every shire 
 by the people, shall hold the said assizes, in the county, on the 
 day, and at the place appointed. 19. And if any matters cannot 
 be determined on the day appointed for holding the assizes in 
 each county, so many of the knights and freeholders as have 
 been at the assizes aforesaid, shall stay to decide them, as is 
 necessary, according as there is more or less business. 20. A 
 freeman shall not be amerced for a small fault, but after the 
 manner of the fault; and for a great crime according to the 
 heinousness of it, saving to him his contenement ; and after the 
 same manner a merchant, saving to him his merchandise. And 
 a villein shall be amerced after the same manner, saving to his 
 wainage, if he shall f all ^ under our mercy; and none of . the 
 aforesaid amerciaments shall be assessed but by the oath of 
 honest men in the neighborhood. 21. Earls and barons shall 
 not be amerced, but by their peers, and after the degree of the 
 offence. 22. No ecclesiastical person shall be amerced [for his 
 lay tenement], but according to the proportion of the others 
 aforesaid, and not according to the value of his ecclesiastical 
 benefice. 23. Neither a town nor any tenant shall be distrained 
 to make bridges or banks, unless that anciently and of right 
 they are bound to do it. 24. No sheriff, constable, coroner, or 
 other our bailiffs, shall hold pleas of our" Crown. [25. All 
 counties, hundreds, wapentakes, and tythings, shall stand at 
 the old rents, without any increase, except in our demesne 
 manors.] 26. If any one holding of us a lay-fee die, and the 
 sheriff, or our bailiffs, show our letters patent, of summons for 
 debt which the dead man did owe to us, it shall be lawful for 
 the sheriff or our bailiff to attach and inroll the chattels of the 
 dead, found upon his lay-fee, to the value of the debt, by the 
 view of lawful men so as nothing be removed until our whole 
 clear debt be paid; and the rest shall be left to the executors 
 to fulfil the testament of the dead, and if there be nothing, due 
 from him to us, all the chattels^shall go to the use of the dead, 
 saving to his wife and children their reasonable shares. [27. If 
 any freeman shall die intestate, his chattels shall be distributed 
 by the hands of his nearest relations and friends, by view of the 
 
 ' '" For Creasy's "falls." 
 « For Creasy's "the." 
 
CXVl MAGNA CARTA. 
 
 church ; saving to every one his debts which the deceased owed 
 to him.] 28. No constable or bailiff of ours shall take com or 
 other chattels of any man, unless he presently give him money 
 for it, or hath respite of payment by the good-will of the seller. 
 29. No nonstable shall distrain any knight to give money for 
 castle guard, if he himself will do it in his person, or by another 
 able man in case he cannot do it through any reasonable cause. 
 And if we lead him, or send him in an army, he shall be free 
 from such guard for the time he shall be in the army by our 
 command. 30. No sheriff or bailiff of ours, or any other, shall 
 take horses or carts of any freeman for carriage, but by the 
 good-will of the said freeman. 31. Neither shall we nor our 
 bailiffs take any man's timber for our castles or other uses, 
 unless by the consent of the owner of the timber. 32. "We will 
 retain the lands of those convicted of felony only one year and 
 a day, and then they shall be delivered to the lord of the fee. 
 33. All weirs for the time to come shall be put down in the 
 rivers of Thames and Medway, and throughout all England, 
 except upon the sea-coast. 34. The writ which is called 
 Praecipe, for the future, shall not be made out to any one, of 
 any tenement, whereby a freeman may lose his court. 35. There 
 shall be one measure of wine and one of ale through our whole 
 realm; and one measure of com, that is to say, the London 
 quarter ; and one breadth of dyed cloth, and russets, and haber- 
 jeets, that is to say, two ells within the lists ; and it shall be of 
 weights as it is of measures. 36. Nothing from henceforth shall 
 be given or taken for a writ of inquisition of life or limb, but it 
 shall be granted freely, and not denied. 37. If any do hold of 
 us by fee-farm, or by socage, or by burgage, and he hold also 
 lands of any other by knight's service, we will not have the 
 custody of the heir or land, which is holden of another man's 
 fee by reason of that fee-farm, socage, or burgage ; neither will 
 we have the custody of such fee-farm, socage, or burgage, ex- 
 cept knight's service was due to us out of the same fee-farm. 
 We will not have the custody of an heir, nor of any land which 
 he holds of another by knight's service, by reason of any petty 
 8er.jeanty that holds of us, by the service of paying a knife, an 
 arrow, or the like. 38. No bailiff from henceforth shall put any 
 man to his law upon his own bare saying, without credible wit- 
 nesses to prove it. 
 
MAGNA CASTA. CXVii 
 
 39. No freeman shall be taken or imprisoned, or disseised, or 
 outlawed, or banished, or any ways destroyed, nor will we pass 
 upon him, nor will we send upon him, unless by the lawful judg- 
 ment of his peers, or by the law of the land. 40. To none will 
 we sell, to none will we deny, or delay, right or justice.'' 
 
 41. All merchants shall have safe and secure conduct, to gO' 
 out of, and to come into England, and to stay there, and to pass 
 as well by land as by water, for buying and selling by the 
 ancient and allowed customs, without any evil tolls; except in 
 time of war, or when they are of any nation at war with us. 
 And if there be found any such in our land, in the beginning of 
 the war, they shall be attached, without damage to their bodies, 
 or goods, until it be known unto us or our chief justiciary, how 
 our merchants be treated in the nation at war with us; and if 
 ours be safe there, the others shall be safe in pur dominions. 
 [42. It shall be lawful, for the time to come, for any one to go 
 out of our kingdom, and return safely and securely, by land or 
 by water, saving his allegiance to us ; unless in time of war, by 
 some short space, for the common benefit of the realm, except 
 prisoners and outlaws, according to the law of the land, and 
 people in war with us, ajid merchants who shall be in such con- 
 dition as is above mentioned.] 43. If any man hold of any 
 escheat, as of the honour of WgJlingford, Nottingham, Bou- 
 logne, Lancaster, or of other escheats which be in our hands, 
 and are baronies, and die, his heir shall give no other relief, and 
 perform no other service to us, than he would to the baron, if it 
 were in the baron's hand; we will hold it after the same manner 
 as the baron held it. 44. Those men who dwelt without the 
 forest, from henceforth shall not come before our justiciaries 
 of the forest, upon common summons, unless ^ such as are im- 
 pleaded, or are pledges for any that are attached for something- 
 concerning the forest. [45. We will not make any justices, con- 
 stables, sheriffs, or bailiffs, but of such as know the law of the 
 realm and mean duly to observe it.] 46. All barons who have 
 founded abbeys, and have the kings of England's charters of 
 advowson, or the ancient tenure thereof, shall have the keeping 
 of them, when vacant, as they ought to have. 47. All forests. 
 
 7 The translation of § 40 is taken from Taswell-Langmead's English. 
 Constitutional History, p. 126. 
 
 8 For Creasy's "but." 
 
'CXVm MAGNA CARTA. 
 
 that have been made forests in our time, shall forthwith be dis- 
 forested; and the same shall be done with the water' banks 
 that have been fenced in by us in our time. [48. All evil cus- 
 toms concerning forests, warrens, foresters and warreners, 
 sheriffs and their officers, rivers and their keepers, shall forth- 
 with be inquired into in each county, by twelve sworn knights 
 of the same shire, chosen by creditable persons of the same 
 county ; and within forty days after the said inquest, be utterly 
 abolished, so as never to be restored: so as we are first ac- 
 quainted therewith, or our justiciary, if we should not be in 
 England. 49. We will immediately give up all hostages and 
 writings delivered unto us by our English subjects, as securities 
 for their keeping the peace, and yielding us faithful service. 
 
 50. We will entirely remove from our bailiwicks the relations 
 of Gerard de Atheyes, so that for the future they shall have no 
 bailiwick in England ; we will also remove Engelard de Cygony, 
 Andrew, Peter, and Gyon, from the Chancery ; Gyon de Cygony, 
 Geoffrey de Martyn and his brothers; Philip Mark, and his 
 brothers, and his nephew, Geoffrey, and their whole retinue. 
 
 51. As soon as peace is restored, we will send out of the king- 
 dom all foreign soldiers, cross-bowmen, and stipendiaries, who 
 are come with horses and arms to the prejudice of our people. 
 
 52. If any one has been dispossessed or deprived by us, without 
 the legal judgment of his peers, of his lands, castles, liberties, 
 ■or right, we will forthwith restore them to him ; and if any dis- 
 pute arise upon this head, let the matter be decided by the five- 
 and-twenty barons hereafter mentioned, for the preservation of 
 the peace. As for all those things of which any person has, 
 without the legal judgment of his peers, been dispossessed or 
 deprived, either by King Henry our father, or our brother King 
 Eichard, and which we have in our hands, or are possessed 
 by others, and we are bound to warrant and make good, we 
 shall have a respite till the term usually allowed the crusaders; 
 •excepting those things about which there is a plea depending, 
 or whereof an inquest hath been made, by our order, before we 
 undertook the crusade, but when we return from our pilgrim- 
 age, or if perchance we tarry at home and do not make our 
 pilgrimage, we will immediately cause full justice to be admin- 
 istered therein. 53. The same respite we shall have (and in the 
 
 9 For Creasy's "banks." 
 
MAGNA CARTA. CXIX 
 
 same manner about administering justice, disafforesting tlie 
 forests, or letting them continue) for disafforesting the forests, 
 which Henry our father, and our brother Richard have afforested ; 
 and for the keeping of the lands which are in another's fee, in 
 the same manner as we have hitherto enjoyed those wardships, 
 by reason of a fee held of us by knight's service; and for the 
 abbeys founded in any other fee than our own, in which the 
 lord of the fee says he has a right; and when we return from 
 our pilgrimage, or if we tarry at home, and do not make our 
 pilgrimage, we will immediately do full justice to all the com- 
 plainants in this behalf.] 54. No man shall be taken or im- 
 prisoned upon the appeal of a woman, for the death of any 
 other than her husband. [55. All unjust and illegal fines made 
 by us, and all amerciaments imposed unjustly and contrary to 
 the law of the land, shall be entirely given up, or else be left to 
 the decision of the five-and-twenty barons hereafter mentioned 
 for the preservation of the peace, or of the major part of them, 
 together with the aforesaid Stephen, archbishop of Canterbury, 
 if he can be present, and others whom he shall think fit to take 
 along with him ; and if he cannot be present, the business shall 
 notwithstanding go on without him ; but so that if one or more 
 of the aforesaid five^and-twenty barons be plaintiffs in the same 
 cause, they shall be set aside as to what concerns this particular 
 affair, and others be chosen in their room, out of the said five- 
 and-twenty, and sworn by the rest to decide the matter. 56. If 
 we have disseised or dispossessed the Welsh, of any lands, liber- 
 ties, or other things, without the legal judgment of their peers, 
 either in England or in Wales, they shall be immediately restored 
 to them ; and if any dispute arise upon this head, the matter shall 
 be determined in the marche by the judgment of their peers; 
 for tenements in England according to the law of England, for 
 tenements in Wales according to the law of Wales, for tene- 
 ments of the marche according to the law of the marche; the 
 same shall the Welsh do to us and our subjects. 57. As for all 
 those things of which a Welshman hath, without the legal judg- 
 ment of his peers, been disseised or deprived of by King Henry 
 our father, or our brother King Richard, and which we either 
 have in our hands or others are possessed of, and we are obliged 
 to warrant it, we shall have a respite till the time generally 
 allowed the crusaders; excepting those things about which a 
 suit is depending, or whereof an inquest has been made by our 
 
-CXX MAGNA CAETA. 
 
 order, before we undertook the crusade : but when we return, or 
 if we stay at home without performing our pilgrimage, we will 
 immediately do them full justice, according to the laws of the 
 Welsh and of the parts before mentioned. 58. "We will without 
 delay dismiss the son of Llewellin, and all the Welsh hostages, 
 and release them from the engagements they have entered into 
 with us for the preservation of the peace. 59. We will treat 
 with Alexander, King of Scots, concerning the restoring his 
 sisters and hostages, and his right and liberties, in the same 
 form and manner as we shall do to the rest of our barons of 
 England ; unless by the charters which we have from his father, 
 William, late King of Scots, it ought to be otherwise ; but this 
 shall be left to the determination of his peers in our -court.] 
 60. All the aforesaid customs and liberties, which we have 
 granted to be holden in our kingdom, as much as it belongs to 
 us, towards our people of our kingdom, as well clergy as laity 
 shall observe, as far as they are concerned, towards their ten- 
 ants.^" [61. And whereas, for the honour of God and the amend- 
 ment of our kingdom, and for the better quieting the discord 
 that has arisen between us and our barons, we have granted all 
 these things aforesaid ; willing to render them firm and lasting, 
 we do give and grant our subjects the underwritten security, 
 namely, that the barons may choose flve-and-twenty barons of 
 the kingdom, whom they think convenient; who shall take care, 
 with all their might, to hold and observe, and cause to be ob- 
 served, the peace and liberties we have granted them, and by 
 this our present charter confirmed ; so that if we, our justiciary, 
 our bailifi:'s, or any of our officers, shall in any circumstance fail 
 in the performance of them, towards any person, or shall break 
 through any of these articles of peace and security, and the 
 offence be notified to four barons chosen out of the five-and- 
 twenty before mentioned, the said four barons shall repair to 
 "us, or our justiciary, if we are out of the realm,, and, laying open 
 the grievance, shall petition to have it redressed without delay : 
 and if it be not redressed by us, or if we should chance to be 
 out of the realm, if it should not be redressed by our justiciary, 
 within forty days, reckoning from the time it has been notified 
 to us, or to our justiciary, (if we should be out of the realm,) 
 the four barons aforesaid shall lay the cause before the rest of 
 
 10 For Creary's "dependents." 
 
MAGNA CAETA. CXXl 
 
 the five-and-twenty barons; and the said five-and-twenty bar- 
 ons, together with the community of the whole kingdom, shall 
 distrain and distress us in all possible ways, by seizing our 
 castles, lands, possessions, and in any other manner they can, 
 till the grievance is redressed according to their pleasure ; sav- 
 ing harmless our own person, and the persons of our queen and 
 children ; and when it is redressed, they shall obey us as before. 
 And any person whatsoever in the kingdom, may swear that he 
 will obey the orders of the five-and-twenty barons aforesaid, in 
 the executijon of the premises, and will distress us, jointly with 
 them, to the utmost of his power ; and we give public and free 
 liberty to any one that shall please to swear to this, and never 
 will hinder any person from taking the same oath. 62. As for 
 all those of our subjects who will not, of their own accord, 
 swear to join the five-and-twenty barons in distraining and dis- 
 tressing us, we will issue orders to make them take the same 
 oath as aforesaid. And if any one of the five-and-twenty barons 
 dies, or goes out of the kingdom, or is hindered any other way 
 from carrying the things aforesaid into execution, the rest of 
 the said five-and-twenty barons may choose another in his room, 
 at their discretion, who shall be sworn in like manner as the 
 rest. In all things that are committed to the execution of these 
 five-and-twenty barons, if, when they are all assembled together, 
 they should happen to disagree about any matter, and some of 
 them, when summoned, will not, or cannot come, whatever is 
 agreed upon, or enjoined, by the major part of those that are 
 present, shall be reputed as firm and valid as if all the five-and- 
 twenty had given their constent; and the aforesaid five-and- 
 twenty shall swear, that all the premises they shall faithfully 
 observe, and cause with all their power to be observed. And we 
 will not, by ourselves, or by any other, procure anything 
 whereby any of these concessions and liberties may be revoked 
 or lessened ; and if any such thing be obtained, let it be null and 
 void ; neither sha,ll we ever make use of it, either by ourselves 
 or any other. And all the ill will, indignations, and rancours 
 that have arisen between us and our subjects, of the clergy and 
 laity, from the first breakiug out of the dissensions between us, 
 we do fully remit and forgive: moreover all trespasses occa- 
 sioned by the said dissensions, from Easter in the fifteenth year 
 of our reign, till the restoration of peace and tranquillity, we 
 hereby entirely remit to all, both clergy and laity, and as far as 
 
CXXll MAGNA CARTA. 
 
 in US lies do fully forgive. "We have, moreover, caused to be 
 made for them the letters patent testimonial of Stephen, lord 
 archbishop of Canterbury, Henry, lord archbishop of Dublin, and 
 the bishops aforesaid, as also of master Pandulph, for the security 
 and concessions aforesaid. 63. "Wherefore we will and firmly 
 enjoin, that the Church of England be free, and that all the men 
 in our kingdom have and hold all the aforesaid liberties, rights, 
 and concessions, truly and peaceably, freely and quietly, fully 
 and wholly to themselves and their heirs, of us and our heirs, in 
 all thiags and places, for ever, as is aforesaid. It is also sworn, 
 as well on our part as on the part of the barons, that all the 
 things aforesaid shall be observed bona fide and without evil 
 subtilty. Given under our hand, in the presence of the wit- 
 nesses above named, and many others, in the meadow called 
 Runingmede, between "Windsor and Staines, the 15th day of 
 June, in the 17th year of our reign.] 
 
FEDERAL PROCEDURE AT LAW. 
 
 CHAPTER I. 
 
 THE CONSTITUTIONAL BASIS OF PROCEDURE IN THE COURTS 
 OF THE UNITED STATES. 
 
 1. Three branches of the law. 
 
 2. No definite line between pro- 
 
 cedure and substantive 
 law. 
 
 3. Same — Illustration — Remedy 
 
 on contract. 
 
 4. Same — Illustration — Proce- 
 
 dure for protection of life 
 and personal liberty. 
 
 5. Importance of the law of 
 
 procedure. 
 
 6. Same — Judicial murders in 
 
 England. 
 
 7. Same — ^Same — Statement of 
 
 Hallam. 
 
 8. Struggle in England for just 
 
 procedure. 
 
 § 9. Same — In American colonies. 
 iO. Federal procedure estab- 
 lished by constitutional 
 provision. 
 
 11. Same. 
 
 12. The study of federal proce- 
 
 dure should begin with 
 the constitution. 
 
 13. Same — Intimate relation be- 
 
 tween criminal and civil 
 procedure. 
 
 14. Same — Further necessity for 
 
 the examination of the 
 constitution in the study 
 of federal procedure. 
 
 15. Same — ^A general view of 
 
 the government requisite. 
 
 § 1. Three branches of the law. — In the practical adminis- 
 tration of justice, it is the habit of the legal and judicial mind 
 to consider the law as divided into three great branches, 
 namely: (1) Those constitutional and statutory provisions by 
 which the courts of judicature are created and established and 
 their jurisdiction is defined and limited; (2) the rules of sub- 
 stantive law and jurisprudence which define the rights, duties 
 and liabilities of persons; and (3) the rules of procedure by 
 which the jurisdiction of the courts is invoked, the appropri- 
 ate relief is obtained, and the judgment or decree of the court 
 is finally and fully executed. This is especially true in the 
 federal judicial system, where the jurisdiction of the courts. 
 1 
 
2 FEDERAL PROCEDURE AT LAW. § 5 
 
 is special and limited, and the rules of substantive law to be 
 applied are drawn from both, the state and federal laws, and 
 also from general jurisprudence, and their procedure is hedged 
 about by constitutional limitations and controlled in some in- 
 stances by federal laws, and in others by state regulations. 
 
 § 2. No definite line between procedure and substantive 
 law. — Neither the courts of judicature nor the legislative power 
 has ever been able to, nor have they attempted to draw any 
 definite liiie between the rules of procedure and the rules of 
 substantive law. Indeed, such a line of demarkation is im- 
 possible, for the reason that, in many instances, the right to a 
 particular remedy or procedure is a valuable substantive right, 
 given by the law for the protection of the rights of person or 
 property.^ 
 
 § 3. Same — ^Illustration — Remedy on contract. — ^A remedy 
 for the enforcement of a contract is a procedure, but at the 
 same time it is a valuable right, of which persons may not be 
 constitutionally deprived; for if a law should be passed, ma- 
 terially diminishing the effectiveness of the remedy, such law 
 would be, as to past transactions, void, as being a law impair- 
 ing the obligation of contracts.^ 
 
 § 4. Same — ^Illustration — ^Procedure for protection of life 
 and personal liberty. — The right of a person charged with an 
 infamous crime to be prosecuted only on a presentment or in- 
 dictment of a grand jury, to be informed of the nature and 
 cause of the accusation against him, tried by an impartial jury, 
 confronted with the witnesses against him, to have compulsory 
 process for obtaining witnesses in his favor, and to have the 
 assistance of counsel for his defense, is the right to certain 
 procedure, and it is also a substantive right, fundamental in 
 its character, and secured by constitutional guaranty.^ 
 
 § 5. Importance of the law of procedure. — In the adminis- 
 tration of public justice, in both criminal and civil causes, the 
 importance of a just, simple, reasonable and humane procedure 
 
 iKring v. Missouri, 107 U. S- Antoni v. Greenhow, 107 TJ. S. 769; 
 289. Spratt v. Reid, 3 Green (la.) 489; 
 
 2 Bronson v. Kinzie, 1 How. 311 
 McGracken v. Hayward, 2 How 
 608; Tenn. v. Sneed, 96 U. S. 69 
 Barnitz v. Beverly, 163 U. S. 125 
 Edwards v. Kearzey, 96 U. S. 595 
 
 Robinson v. Howe, 13 Wis. 341; 
 Cargill V. Power, 1 Mich. 369. 
 
 3 U. S. Const. V and VI arts, of 
 Amend. 
 
§ 7 CONSTITUTIONAL BASIS OF PROCEDURE. 3 
 
 cannot be overestimated; the maintenance of such a proced- 
 ure, intelligently and faithfully enforced by the courts of ju- 
 dicature, constitutes the highest evidence of an advanced civil- 
 ization, while its absence indicates national decaj', and entails 
 upon civil society universal inconvenience, ills, and misery.* 
 
 § 6. Same — Judicial murders in England. — ^From the acces- 
 sion of Henry VII to the revolution in 1688, the national life 
 of England was one continued carnival of judicial murders, 
 in which the very flower of the kingdom were destroyed, their 
 heritable blood corrupted, and their estates forfeited to the 
 crown; and that career of national crime was accomplished by 
 denying to its victims that reasonable and just judicial pro- 
 cedure which is the common right of mankind.^ 
 
 § 7. Same — Same — Statement of Hallam. — Mr. Hallam, in 
 his Constitutional History, speaking of this period, said : ' ' Civil 
 liberty in this kingdom has two direct guaranties: the open 
 administration of justice according to known laws truly in- 
 terpreted, and fair construction of evidence; and the right of 
 Parliament, without let or interruption, to inquire into, and 
 obtain the redress of public grievances. ■ Of these, the first is 
 by far the most indispensable ; nor can the subjects of any 
 state be reckoned to enjoy a real freedom where this condition 
 is not found both in its judicial institutions and in their con- 
 stant exercise. In this, much more than in positive law, our 
 ancient constitution, both under the Plantagenet and Tudor 
 lines, had ever been failing; and it is because one set of writers 
 have looked merely to the letter of our statutes or other au- 
 thorities, while another have been almost exclusively struck by 
 the instances of arbitrary government they found on record, 
 that such incompatible systems have been laid down with 
 equal positiveness on the character of that constitution. 
 
 "I have found it impossible not to anticipate, in more places 
 than one, some of those glaring transgressions of natural as 
 well as positive law, that render our courts of justice in cases 
 •of treason little better than the caverns of murderers. Whoever 
 
 iHallam's Const. Hist. Eng. 138, X, 105; ib. XI, 297, 322, 834, 861, 
 
 471. 862. Hallam's Const. Hist. Bng- 
 
 5 State Tr. I, 965, 985, 1148, 1256, land (5th London Ed.), 138, 417. 
 
 1403; ib. IV, 857, 1329; ib. VI, 153, 418, 419, 471, 472, 488, 489, 490. 
 €87; ib. IX, 577, 818, 834, 899; ib. 
 
4 ' FEDERAL PROCEDURE AT LAW. § & 
 
 was arraigned at their bar was almost certain to meet a viru- 
 lent prosecutor, a judge hardly distinguishable from the pros- 
 ecutor except by his ermine, and a passive, pusillanimous 
 jury. Those who 'are acquainted only .with our modern de- 
 cent and dignified procedure, can form little conception of the 
 irregularity of ancient trials; the perpetual interrogation of 
 the prisoner, which gives most of us so much offense at this 
 day in,, the tribunals of a neighboring kingdom; and the want 
 of all evidence except written, perhaps imattested, examina- 
 tions or confessions. ' ' ° And again : ' ' There was, indeed, good 
 reason to distrust the course of justice. Never were our tri- 
 bunals so disgraced by the brutal manners and iniquitous par- 
 tiality of the bench as in the latter years of this (Cha. II) 
 reign. The State Trials, none of which appear to have been 
 published by the prisoners' friends, bear abundant testimony 
 to the turpitude of the judges. They explained away and 
 softened the palpable contradictions of the witnesses for the- 
 crown, insulted and threatened those of the accused, checked 
 all cross-examination, assumed the truth of the charge through- 
 out the whole of every trial." ^ 
 
 § 8. Struggle in Englajid for just procedure. — ^From Magna 
 Charta to the Revolution of 1688, and, indeed, long subsequent 
 thereto, the English people M'ere engaged in an unremitting 
 struggle for the establishment of a just and humane judicial 
 procedure and the independence of their judges. "The whole 
 fabric of English liberty rose step by step, through much toil 
 and many sacrifices, each generation adding some new security 
 to the work, and trusting that posterity would perfect the labor 
 as well as enjoy the reward."*- But not until very recent 
 times were the iniquities of the judicial procedure of that 
 country fully and finally swept away." 
 
 § 9. Same — In American Colonies. — This struggle for a just 
 and humane judicial procedure was not confined to the realm' 
 of England, but was vigorously prosecuted by the American 
 
 « Hallam's Const. Hist. Eng- Hist. England; May's Const. Hist, 
 
 land, 138. Eng. chap. XI. 
 
 'Hallam's Const. Hist. Eng- » Bl. Com. Bk. IV, chap. XXVII; 
 
 land, 471. Stat. 7 William III, C. 3; Stat. 
 
 5 Hallam's Middle Ages, chap. 6 & 7 William IV, C. 114 ; Stat 2a 
 
 VIII, and especially p. 546; and George II, C. 30. 
 see, generally, Hallam's Const. 
 
§ 10 CONSTITUTIONAL BASIS OP PKOCEDUEE. 3 
 
 colonies, who claimed that they were entitled to the rights, 
 liberties and immunities of free and natural-born subjects 
 within the realm of England, to the principles of the English 
 constitution and the several charters, to the common law of 
 England and especially to trial by a jury of the vicinage, to 
 the benefit of such English statutes as existed at the time of 
 their colonization and which they had found by experience ap- 
 plicable to their local and other circumstances, and likewise 
 entitled to all the immunities and privileges granted and con- 
 firmed to them by royal charters or secured by their several 
 codes of provincial laws.^° 
 
 At the beginning of the period of colonial legislation in this 
 country (which is usually reckoned to be the fourth year of 
 James I, A. D. 1607), the following had been established as 
 principles of the English constitution, viz.: (1) "No man 
 could be committed to prison but by a legal warrant specify- 
 ing the offense; and, by a usage nearly tantamount to consti- 
 tutional right, he must be speedily brought to trial by means 
 of regular sessions of jail-delivery. (2) The fact of guilt or 
 innocence on a criminal charge was determined in a public 
 court, and in the county where the offense was alleged to have 
 occurred, by a jury of twelve men, from whose unanimous 
 verdict no appeal could be made. Civil rights, so far as they 
 depended on questions of fact, were subject to the same deci- 
 sion. (3) The oflScers and servants of the crown, violating 
 the personal liberty or other right of the subject, might be sued 
 in an action for damages, to be assessed by a jury, or, in some 
 cases, were liable to criminal process; nor could they plead 
 any warrant or command in their justification, not even the 
 direct order of the king. ' ' ^^ But, as will be shown in a sub- 
 sequent chapter, these principles were constantly violated in 
 England and in the colonies until about the time of-the Amer- 
 ican Revolution; and these abuses were, in part, the justifica- 
 tion of that Revolution. ^^ 
 
 § 10. Federal procedure established by constitutional pro- 
 vision. — The founders of this government, learning wisdom 
 from the history of the English people and the American col- 
 
 10 Declaration of Rights (1774) n Hallam's Const. Hist. Eng. 14. 
 
 1 Pitk. Hist. 344; Declaration of 12 Declaration of Independence. 
 
 Independence. 
 
G FEDERAL PROCEDURE AT LAW. § 13 
 
 onies, to make secure the fruits of the Revolution, established 
 the great outlines of the judicial procedure to be pursued in 
 the courts of the United States by constitutional provisions; 
 this end was secured in part by some provisions contained in 
 the constitution as originally adopted, but more fully by the 
 amendments soon thereafter adopted;^' and additional limi- 
 tations were by the' later amendments imposed iipon the state 
 governments.^* These constitutional provisions do not pre- 
 scribe the details of procedure, but thej^ do, bj' limitations at 
 least, establish the great principles of that beneficent system 
 of procedure which is the common right of mankind, and which 
 should be the heritage of all civil society. 
 
 § 11. Same. — The constitution extends the judicial power 
 of the United States to three classes of cases, namely: (1) Cases 
 in law, (2) cases in equity, and (3) eases of admiralty and 
 maratime jurisdiction; '° and in "suits at common law" (which 
 is the same thing as "cases in law") the right of trial by jury 
 is preserved. ^^ This classification which is fovind in the con- 
 stitution itself, and which is written in the language of the 
 common law, and which was taken from the English judicial 
 system, was, in itself, the adoption of the English common law, 
 chancery, and admiralty systeijis of judicial procedure, with 
 their known difPerences and distinctions.'' 
 
 § 12. The study of federal procedure should begin with the 
 constitution. — Inasmuch as the foundation of judicial proced- 
 ure in the courts of tlie United States is laid in the constitution 
 an'd its amendments, all intelligent and philosophical study of 
 the subject must begin by an examination of the provisions of 
 that instrument which ]ie at the base of the fabric, and the 
 examination should be extended to those provisions which have 
 a collateral bearing on the matters under investigation. 
 
 § 13. Same — Intimate relation between criminal and ciVll 
 procedure. — On account of the broad application of those pro- 
 visions of the constitution which protect persons against un- 
 reasonable searches and seizures and self-accusation, it is 
 
 13 U. S. Const, art. I, sec. 9, i^U. S. Const. Amend. XIV, 
 
 clause 3 and sec. 10 (last clause), sec. 1. 
 
 art. Ill, sec. 2, clauses 1, 3, sec. I, ifi U. S. Const, art. Ill, sec. 2. 
 
 and Amend. IV-VIII inclusive. le U. S. Const. Amend. VII. 
 
 17 Parsons v. Bedford, 3 Pet. 433. 
 
§ 14 CONSTITUTIONAL BASIS OP PROCEDUBE. 7 
 
 impossible to enter into an examination of civil procedure with- 
 out entering also into an examination of criminal procedure. 
 As illustrating this point, it will be, shown in subsequent sec- 
 tions that the provisions of the constitution just referred to pro- 
 tect not only persons charged with crimes, but also witnesses 
 and parties in civil suits from disclosures which may subject 
 them to a criminal accusation or prosecution or to any' penalty 
 or punishment or forfeiture or which may convict them of any 
 crime, or which may tend to such a result, or which may lead 
 to other evidence that could be used for that purpose. ^^ 
 
 § 14. Same — Further necessity for the examination of the 
 constitution in the study of federal procedure. — In addition to 
 the reasons above given for an examination of the provisions 
 of the federal constitution affecting the administration of jus- 
 tice in the federal courts, as a basis for the procedure in those 
 courts, the following appear to be of great weight, namely: 
 
 (1) The jurisdiction of those courts is special and limited and 
 derived alone from the constitution and laws of the United 
 States,^" and a large class of the cases over which they have 
 jurisdiction arises under the provisions of the constitution,^" 
 and the jurisdiction of the cause often arises under some pro- 
 vision bearing directly upon procedure, ^^ so that questions of 
 procedure are intimately connected with questions of jurisdic- 
 tion throughout the whole system of federal jurisprudence. 
 
 (2) By statute the federal courts have adopted state procedure 
 in cases in law, ' ' as near as may be, ' ' -^ and it may and does 
 frequently happen that some provision of state procedure is in 
 conflict with some provision of the constitution upon the sub- 
 ject of procedure or which constitutes one of the guaranties of 
 life, liberty or property." It must be apparent that the sub- 
 ject of procedure in the federal courts is intimately connected 
 and interlaced with many of the provisions of the constitution, 
 and that a complete understanding of the one cannot be at- 
 tained without careful examination of the other. 
 
 IS Boyd V. United States, 116 22 U. S. R. S. sec. 914. 
 
 U. S. 616-641. ' =2 Bx parte Fisk, 113 U. S. 713; 
 
 19 Fishback v. Western Union Scott v. Neely, 140 U. S. 106, 117 
 Telephone Co., 161 U. S. 96. (35:358); Pennoyer v. Neff, 95 U. 
 
 20 U. S. Const, art. Ill, sec. 2. S. 714, 748 (24:565). 
 
 21 Stone V. Farmers' Loan & 
 Trust Co., 116 U. S. 307. 
 
8 FEDERAL PROCEDURE AT LAW. § 15 
 
 § 15. Same — A general view of the government requisite. — 
 
 The judicial department is a co-ordinate branch of the govern- 
 ment, and through it is exercised that judicial sovereignity 
 which is inherent in every state or nation. Judicial power is 
 sovereign power. Judicial power is one of the foundation- 
 stones of all civil society and all political institutions. In all 
 modern governments, the judiciary is created and established 
 by, and its powers and its relations to the other branches of the 
 government are defined in the organic law; it is an integral 
 part of the fabric of government, operating directly upon all 
 persons and property within the territorial jurisdiction of the 
 sovereignity of which it is a part;-* and it, therefore, follows 
 that no just and correct conception of the powers, jurisdiction 
 and modes of procedure of the courts of judicature can be 
 reached except by and through a consideration and view of all 
 the powers of government and their relations to each other, and 
 this is especially true in this country under our dual system of 
 governments, federal and state, with their courts exercising 
 jurisdiction in the same territory.^'' 
 
 2* Georgia v. Stanton, 6 Wall. 25 Ableman v. Booth, 21 How. 
 
 50; Federalist, Nos. 46, 47, 48, 49, 516 United States v. Tarble, 13 
 
 50; Federal Const, and Consts. of Wall. 397. 
 the several states. 
 
CHAPTER II. 
 
 THE DUAL SYSTEM OF GOVE^RNMENT IN THE UNITED STATES. 
 
 5 16. By revolution: the thirteen 
 colonies became sovereign 
 states. 
 
 17. Two governments In each 
 
 state — Relations between 
 them — Each supreme In 
 its sphere. 
 
 18. Sovereignty of the state re- 
 
 stricted by the federal 
 constitution. 
 
 19. Two judicial systems in 
 
 each state. 
 
 20. The federal government does 
 
 not possess all the attri- 
 butes of sovereignty. 
 
 21. The government of the Uni- 
 
 ted States is national in its 
 character. 
 
 22. General statement of the 
 
 powers of the government. 
 
 23. Implied powers of the fed- 
 
 eral government. 
 
 24. Same — Meaning of implica- 
 
 tion. 
 
 25. Same — Power of congress not 
 
 left to general reasoning. 
 
 26. An implied power deduced 
 
 from a group of specified 
 powers. 
 
 27. The powers of government 
 
 classified according to 
 their distribution by the 
 constitution. 
 
 28. Same — What powers may be 
 
 exercised by the states. 
 
 29. The commercial power — 
 
 Reasons for vesting it in 
 the national government. 
 
 30. The power to regulate com- 
 
 merce is vested in the 
 legislative branch of the 
 government. 
 
 31. The commercial power and 
 
 the taxing power are dis- 
 tinct. 
 
 32. Limitations upon the com- 
 
 mercial power of congress 
 
 33. Constitutional provisions cor- 
 
 related to the commerce 
 clause. 
 
 34. Commerce within the mean- 
 
 ing of the constitution is 
 a unit. 
 
 35. The commercial power of 
 
 congress does not extend 
 to state commerce. 
 
 36. Commerce defined. 
 
 37. When the commercial power 
 
 of congress is exclusive, 
 and when paramount 
 only. 
 
 38. Failure of congress to act in 
 
 regard to any commercial 
 subject of a national na- 
 ture is a declaration that 
 as to such matter com- 
 merce shall remain free. 
 
 39. Powers expressly prohibited 
 
 to the states. 
 
 40. The reserved powers of the 
 
 states. 
 
 41. Sovereignty of the states 
 
 over their navigable wat- 
 ers and the soils beneath 
 them. 
 
 42. Same — Tide Waters — The 
 
 Great Lakes. 
 
 43. Same — Mississippi River. 
 
10 
 
 FEDERAL PEOCEDXTEE AT LAW. 
 
 § le 
 
 44. Riparian rights determined 
 
 by state laws. 
 
 45. Riparian rights subordinate 
 
 to the commercial power 
 of congress. 
 
 46. Authority to maintain bridge 
 
 across navigable stream. 
 
 47. Same — Federal _ statute re- 
 
 requiring assent of the fed- 
 eral government. 
 
 48. Power of the states to im- 
 
 prove their harbors, bays 
 and navigable rivers. 
 
 49. Same — Federal statute re- 
 
 quiring assent of the fed- 
 eral government. 
 
 50. Distinction between munici- 
 
 pal sovereignty and na- 
 tional sovereignty. 
 
 51. Admiralty jui:isdiction of 
 
 the United States over the 
 public navigable lakes 
 and rivers of the states. 
 
 52. State pilotage laws-^Admin- 
 
 istered in. federal courts. 
 
 53. Constitutional power of the 
 
 states to levy duties on 
 imports and exports for 
 executing their inspection 
 Jaws. 
 
 § 54. The subject-matter of inspec- 
 tion laws — Do not operate 
 upon persons. 
 
 55. What articles are subject Uy 
 
 state inspection laws. 
 
 56. The object of state inspec- 
 
 tion laws. 
 
 57. The methods and means of 
 
 executing inspection. 
 
 58. Distinction between the pow- 
 
 er to enact inspection 
 laws and the power to 
 levy duty for their execu- 
 tion. 
 
 59. Commercial classification of 
 
 the subjects of inspection 
 laws. 
 
 60. Inspection laws act on ar- 
 
 ticles of commerce in the 
 exercise of the police pow- 
 ers of the state. 
 01. Same — Harmony with the 
 commercial power. 
 
 62. Quarantine laws enacted by 
 
 the states. 
 
 63. State action incidentally af- 
 
 fecting foreign and inter- 
 state commerce. 
 
 § 16. By revolution the thirteen colonies became sovereign 
 states. — B.v revolution, made good and effectual by the success 
 of the war for independence, each one of the thirteen colonies 
 became a free, independent and sovereign state, charged with 
 all the duties and vested with all the powers, rights and inci- 
 dents of sovereignity, and so continued until by the adoption 
 of the federal constitution a large and important portion of 
 that sovereignity was devolved upon and vested in the govern- 
 ment of the United States. By the treaty of peace Great Brit- 
 ain acknowledged and recognized the sovereignty and inde- 
 pendence of the colonies, each, respectively, but she did not 
 grant those rights. They had already been achieved by suc- 
 cessful revolution.^ 
 
 1 Mcllvaine v. Coxe's Lessee, 4 
 Cranch, 209; Martin v. Waddell, 
 
 16 Pet. 406-418; Pollard v. Hagan, 
 3 How. 219-230; License Cases, 5 
 
§ 17 DUAL GOVERNMENT IN UNITED STATES. 11 
 
 § 17. Two govermnents in each state — Relations between them 
 — Each supreme in its sphere. — There are, as a result of the 
 adoption of the constitution, within the territorial limits of each 
 state two governments, restricted in their spheres of action, but 
 independent of each other, and supreme within their respective 
 spheres. Each has its separate departments; each has its dis- 
 tinct laws, and each has its own tribunals for their enforcement. 
 Neither government can intrude within the jurisdiction, or 
 authorize any interference therein by its judicial officers, with 
 the action of the other. The two governments in each state 
 stand in their respective' spheres of action in the same inde- 
 pendent relation to each other, except in one particular, that 
 they would if their authority embraced distinct territories. 
 That particular consists in the supremacy of the authority of the 
 United States when any_ conflict arises between the two govern- 
 ments. The constitution and the laws passed in pursuance 
 thereof, and all treaties made or which shall be made under 
 the authority of the United States are declared by the constitu- 
 lion itself to be the supreme law of the land, and the judges of 
 every state are bound thereby, "anything in the constitution 
 or laws of any state to the contrary notwithstanding. ' ' When- 
 ever, therefore, any conflict arises between the enactments of 
 the two sovereignties, or in the enforcement of their asserted 
 authorities, those of the national government must have su- 
 premacy until the validity of the different enactments and 
 authorities can be finally determined by the tribunals of the 
 United States. This temporary supremacy, until judicial de- 
 cision by the national tribunals, and the ultimate determination 
 of the conflict by such decision, are essential to the preserva- 
 tion of order and peace, and the avoidance of forcible collision 
 between the two governments. The judicial power conferred 
 by the constitution upon the courts of the United States extends 
 to all cases arising under the constitution, and, therefore, em- 
 braces every legislative act of congress, whether passed in 
 pursuance of it or in disregard of its provisions; the constitu- 
 
 How. 586-590; Gibbons v. Ogden, 8 Wheat. 584 (5:691); Rhode 
 
 9 Wheat. 187; Mumford v. War- Island v. Massachusetts, 12 Pet. 
 
 dell, 6 Wall. '423-439; Knight v. 720 (9:1259); In re Narragansett 
 
 United States Land Ass'n, 142 U. Indians (Supreme Court Rhode Is- 
 
 S. 161-216; Johnson v. Mcintosh, and, Feb. 24, 1898), 40 Atl. 347-373.. 
 
12 FEDEKAL PROCEDURE AT LAW. § 18 
 
 tion is brought under the view of the tribunals of the United 
 States when any act of congress is brought before them for 
 consideration. Such being the distinct and independent char- 
 acter of the two governments, within their respective spheres 
 of action, it follows that neither can intrude with its judicial 
 process into the domain of the other, except so far as such in- 
 trusion may be necessary on the part of the national govern- 
 ment to preserve its rightful supremacy in cases of conflict of 
 authority. In their laws and modes of enforcement, neither is 
 responsible to the other. How their respective laws shall be 
 enacted, how they shall be carried into execution, and in what 
 tribunals, or by what officers, and how much discretion, or 
 whether any at all shall be vested in their officers, are matters 
 sub.ject to their own control, and in the regulation of which 
 neither can interfere with the other.^ 
 
 § 18. Sovereignty of the state restricted by the federal con- 
 stitution. — The constitution was not formed merely to guard 
 the states against danger from foreign nations, but mainly to 
 secure union and harmony at home; for if this object could 
 be attained, there would be but little danger from abroad ; and 
 to accomplish this purpose, it was felt by the statesmen who 
 framed the constitution, and by the people who adopted it, 
 that it was necessary that many of the rights of sovereignty 
 which the states then possessed, should be ceded to the general 
 government; and that, in the sphere of action assigned to it 
 by the constitution, it should be supreme and strong enough 
 to execute its own laws by its own tribunals, without interrup- 
 tion from a state or from state authorities. And it was evident 
 that anything short of this would be inadequate to the main 
 objects for which the government was established. And al- 
 though each state is sovereign within its territorial limits to 
 a certain extent, yet that sovereignty is limited and restricted 
 by the constitution of the United States. And the general gov- 
 ernment, and the state governments, although both exist and 
 exercise their powers within the same territorial limits, are yet 
 separate and distinct sovereignties, acting separately and inde- 
 pendently of each other, within their respective spheres. And 
 
 2 United States v. Tarble, 13 316-437 (4:579); Ableman v. 
 "Wall. 397, 413 (20:597, 600); Mc- Booth, 21 How. 506, 526 (16:169). 
 ■Culloch V. Maryland, 4 Wheat. 
 
§ 19 DUAL GOVERNMENT IN UNITED STATES. 13' 
 
 the sphere of action appropriated to the United States by the 
 constitution is as far beyond the_ reach of the judicial process 
 issued by a state judge or a state court, as if the line of division 
 was traced by landmarks and monuments visible to the eye.^ 
 
 § 19. Two judicial systems in each state. — There are, as a 
 necessary result of our dual government, within the territorial 
 limits of each state, two systems of judicial courts, the federal 
 and the state, administering justice within' the same territorial 
 limits at the same time; sometimes exercising co-ordinate and 
 concurrent jurisdiction, at other times exclusive jurisdiction; 
 sometimes administering and applying the same system of laws, 
 at other times separate and distinct systems of laws ; but in all 
 instances, except in the class of eases in which the United States 
 supreme court is by the federal constitution given appellate jur- 
 isdiction over the state courts, the two systems of courts act 
 separately and independently of each other; and in their res- 
 pective spheres of action, when jurisdiction has attached, the 
 processes, judgments and decrees of the one are beyond the 
 reach of, and cannot be interfered with by the other.* 
 
 § 20. The federal government does not possess all the attri- 
 butes of soverjBignty. — Although the government of the United 
 States is sovereign and supreme in its appropriate sphere of ac- 
 tion, as defined by the federal constitution, yet it does not pos- 
 sess all the powers which usually belong to the sovereignty of a 
 nation. Certain specified powers, enumerated in the constitu-- 
 tion, have been conferred upon it ; and neither the legislative, 
 executive, nor judicial departments of the government can law- 
 fully exercise any authority beyond the limits marked out by the 
 constitution.^ The government of the United States is ac- 
 knowledged by all to be one of enumerated powers; the prin- 
 ciple, that it can exercise only the powers granted to it in the 
 constitution, has been universally admitted from the time of 
 its organization." 
 
 sAbleman v. Booth, 21 How. How. 393, 633 (15:691); Re Debs, 
 
 506, 526 (10:169, 177). 158 U. S. 564, 600 (39:1092); AWe- 
 
 «Amy V. Barkholder, 11 Wall, man v. Booth, 21 How. 506 (16: 
 
 136 (20:101); Riggs v. Johnson 169) ; U. S. v. Tarble, 13 Wall. 397 
 
 County, 6 Wall. 166 (18:768); (20:597). 
 
 Ableman v. Booth, 21 How. 516 « McCulloch v. Maryland, 4 
 
 (16:173). Wheat. 316 (4:579). 
 
 5 Dred Scott v. Sandford, 19 
 
14 FEDERAL PEOCEDUEE AT LAW. § 22 
 
 § 21. The government of the United States is national in 
 its character. — The govemment of the United States is a 
 national government, and is the only government in this 
 country that has the character of nationality. It is vested 
 with power over all the foreign relations of the country; it 
 has been given jurisdiction over all those genera'l subjects 
 of legislation and sovereignty which affect the interests of 
 the whole people equally and alike, and which require uni- 
 formity of regulations and laws. Its action is to be applied 
 to all the external concerns of the nation, and to those in- 
 ternal concerns which affect the states generally; but not to 
 those which are completely within a particular state, which 
 do not affect other states, and with which it is not necessary 
 to interfere, for the purpose of executing some of the general 
 powers of the government.' 
 
 § 22. General statement of the powers of the United States 
 government. — It appears from a simple reading of the words of 
 the federal constitution, that the government of the United 
 States is vested with a large and important part of those powers 
 and attributes which nations have always regarded as sover- 
 eign, and that it is essentially a national govemment. It is 
 vested with the power to make treaties, appoint and receive 
 ambassadors, public ministers and consuls, and is charged with 
 the diplomatic, foreign and international relations between this 
 country and the nations of the world. It has the power to 
 levy taxes for national purposes, declare war and conclude 
 peace ; to raise and support armies, and provide and maintain 
 a navy, and to suppress insurrections and repel invasions. It 
 has the power to define and punish the crimes of treason, pira- 
 cies and felonies committed on the high seas, and offenses 
 against the laws of nations. It has the po'wer to regulate com- 
 merce with foreign nations, and among the several states and 
 with the Indian tribes ; to establish post-offices and post-roads ; 
 to maintain the currency and fix the standard of weights and 
 measures. It has power to control the territories, admit new 
 states into the union, guaranty to every state in the union a 
 
 'Gibbons v. Ogden, 9 Wheat. 130 U. S. 581-Gll (32:1068); Mc- 
 
 1-240 (6:23-80); Cohens v. Vir- Culloch v. Maryland, 4 Wheat, 
 
 ginia, 6 Wheat. 264 (5:257); 316-437 (4:579-609) ; Knox v. Lee, 
 
 Chae Chan Ping v. United States, 12 Wall. 457-680 (20:287). 
 
^ 23 DUAL GOVERNMENT IN UNITED STATES. 15 
 
 republican form of government, and to protect each of them 
 against invasion, and, in certain contingencies, against domes- 
 tic violence; and to execute its laws upon every foot of soil 
 in this country, either by judicial process or force of arms. 
 And the constitution of the United States and the laws and 
 treaties made in pursuance thereof are the supreme law of the 
 land.^ 
 
 § 23. Implied powers of the federal government. — In con- 
 struing the constitution of the United States, what is implied is 
 as much a part of the instrument as what is expressed." There 
 is no phrase in the constitution which, like the articles of 
 confederation, excludes incidental or implied powers, and 
 which requires that everything granted shall be expressly and 
 minutely described. A constitution, to contain an accurate 
 detail of all the subdivisions of which its great powers will 
 admit, and of all means by which they niay be carried into 
 execution, would partake of the prolixity of a code of laws, and 
 could scarcely be embraced by the human mind. The very na- 
 ture of a written constitution requires that only its great out- 
 lines should be marked, its iinportant objects designated, and' 
 the minor ingredients which compose those objects be deduced 
 from the nature of the objects themselves. That this idea was 
 entertained by the framers of the constitution is not only to be 
 inferred from the nature of the instrument, but from its lan- 
 guage. It must have been the intention of those who framed 
 the constitution, to insure, as far as human prudence could in- 
 sure, the beneficial execution of those great powers conferred 
 by the instrument upon the general government for the wel- 
 fare of the nation; this could not have been done by confining 
 the choice of means to such narrow limits as not to leave it in 
 the power of congress to adopt any which might be appropri- 
 ate, and which would be conducive to the end. Let the end be 
 legitimate, let it be within the scope of the constitution, and 
 all the means which are appropriate, which are plainly adapted 
 to that end, which are not prohibited, but consistent with the 
 
 8 McCulloch v. Maryland, 4 parte Sibold, ' 100 TJ. S. 371, 395 
 
 Wheat. 316 (4:579) ; Knox v. Lee, (25:715) ; U. S. v. Tarble, 13 Wall. 
 
 12 Wall. 457-680 (20:287); Chae 397 (20:597); Ableman v. Booth, 
 
 Chan Ping v. United States, 130 21 How. 506 (16:169). 
 
 U. S. 581-611 (32:1068); Re Debs, 9 Ex parte Yarbrough, 110 U. S. 
 
 158 U. S. 564-600 (39:1092); Ex 651 (28:274). 
 
16 FEDERAL PEOCEDUEE AT LAW. § 26 
 
 letter and spirit of the constitution, are constitutional.^" Con- 
 gress must possess the choice of means, and must be empowered 
 to use any means which are in fact conducive to the exercise 
 of a power granted by the constitution.^^ 
 
 § 24. Same — Meaning of implication. — That some degree of 
 implication must be given to words, is a proposition of univer- 
 sal application. Implication is but another term for meaning 
 and in-teni'wn apparent in the writing on judicial inspection; 
 it is the evident consequence, or some necessary consequence, 
 resulting from the law, or from the words of an instrument, 
 in the construction of which the words, the subject, the context, 
 and the intention of the persons using them, are all to be taken 
 into view." It is the duty of the courts to interpret the con- 
 stitution according to its true inteht and meaning when it was 
 adopted,^^ and in such manner, as, consistently with its words, 
 shall fully and completely effectuate its objects. ^^ 
 
 § 25. Same — Power of congress not left to "general reason- 
 ing." — The constitution has not left the power of congress to 
 employ the necessary means for the execution of the power 
 conferred on the government to general reasoning. To its enu- 
 meration of powers is added that of making "all laws which 
 shall be necessary and proper, for carrying into execution the 
 foregoing powers and all other powers vested by this constitu- 
 tion, in the government of the United States or in any depart- 
 ment thereof ; ' ' and the necessity spoken of is not to be under- 
 stood as absolute, but the constitution has vested in congress 
 that discretion with respect to the means by which the powers 
 it confers are to be carried into execution, which will enable 
 that body to perform the duties assigned to it in the manner 
 most beneficial to the people.^' 
 
 § 26. An implied power deduced from a group of specified 
 powers. — It is not, it is said, indispensable to the existence of 
 any power claimed for the federal government that it can be 
 
 10 McCuUoch V. Maryland, 4 i* Prigg v. Pennsylvania, 16 Pet. 
 Wheat. 316 (4:579). 539 (10:1060). 
 
 11 United States v. Fisber, 2 lo McCuUoch v. Maryland, 4 
 Cranch, 358, 405 (2:304, 320). Wheat. 316-437 (4:579); Knox v. 
 
 12 Rhode Island v. Massachu- Lee, 12 Wall. 457-680 (20:27); 
 setts, 12 Pet. G57 (9:1233). Luxton v. North River Bridge Co.. 
 
 i3Dred Scott v. Sandford, 19 153 U. S. 525-534 (38:808). 
 How. 393 (15:691); South Carolina 
 v. United States, 199 U. S. 437. 
 
§ 28 DUAL GOVERNMENT IN UNITED STATES. 17 
 
 found specified in the words of the eonstitution, or clearly and 
 directly traceable to some one of the specified powers. Its 
 existence may be deduced fairly from more than one of the- 
 substantive powers specified. It is allowable to group together- 
 any number of the specified substantive powers and infer from, 
 them all, that the power claimed has been conferred. A power 
 may exist as an aid to the execution of an express power, or an 
 aggregate of such powers, though there is another express 
 power given relating in part to the same subject but less ex- 
 tensive. '■^ , 
 
 § 27. The powers of government classified according to their 
 distribution by the constitution. — ^Under the dual system of 
 government which has been established by the federal constitu- 
 tion, as expounded in the decisions of the supreme court of the 
 United States, the powers of government with reference to 
 their distribution between the national and state governments 
 are divided into four classes, namely: (1) Those powers which 
 belong exclusively to the states ; (2) those powers which belong 
 exclusively to the national government; (3) those powers which 
 may be exercised concurrently and independently by both ; and 
 (4) those powers which may be exercised by the states, but 
 only until congress shall see fit to act upon them, when the 
 authority of the state retires and lies in abeyance as to such 
 powers until the occasion for their exercise shall reeur.^^ 
 
 § 28. Same — What powers may be exercised by the states. — ■ 
 The states may exercise concurrent and independent powers 
 in all cases but three, namely: (1) Where the power is by the 
 constitution vested exclusively in the national government; 
 (2) Where the power is by the constitution vested in the na- 
 tional government and prohibited to the states; and (3) where 
 from the nature and .subject of the power, it must necessarily 
 be exercised by the national government exclusively.^* 
 
 16 Knox V. Lee, 12 Wall. 457- 3 Wall. 713, 744 (18:96); Cooley 
 680 (20:287); United States v. v. Port Wardens, 12 Ho-sv. 299 (13: 
 Marigold, 9 Ho-w. 560-570 (13:' 996) ; Wilson v. Black Bird Creek 
 257). Marsh Co., 1 Pet. 245 (7:413); 
 
 17 Ex parte McNeil, 13 Wall. 236, Olsen v. Smith, 195 U. S. 332, 345. 
 243 (20:624); Railroad Co. v. Ful- (49:224). 
 
 ler, 17 Wall. 560, 570 (21:710); is Oilman v. Philadelphia, 3 
 
 Bank v. Bearing, 91 U. S. 29, 37 Wall. 713, 744 (18:96); Mobile 
 (23:196); Oilman v. Philadelphia, County v. Kimball, 102 II. S. 691. 
 
 2 
 
18 FEDERAL PROCEDURE AT LAW. § 29 
 
 § 29. The commercial power — Reasons for vesting it in the 
 national government. — The universally recognized necessity for 
 the rescue of American commerce from the embarrassments and 
 degradation resulting from the diverse and conflicting regula- 
 tions of commerce adopted by the states, and the hostile regula- 
 tions of commerce by foreign nations, which could not be suc- 
 cessfully resisted by the disunited efforts of the states, and the 
 further and commanding necessity for the establishment and 
 maintenance of a wise, just, equitable and enlightened code of 
 commercial regulations, operating uniformly throughout the 
 union in all matters national in their character, whose execu- 
 tion and administration should be committed to one national 
 government, vested with the power and possessed of the means 
 with which to enforce such regulations, were among the most 
 influential considerations which induced the assembling of the 
 constitutional convention and led to the formation and adop- 
 tion of the constitution; and congress was given the power to 
 regulate commerce for the purpose of curing the very mischief 
 which had been so influential, as a moving cause, in inducing 
 the states to abandon the articles of confederation and "form 
 a more perfect union" by the adoption of the constitution; 
 and the grant of the power is as extensive as the mischief , it 
 was intended to eradicate, and the federal judiciary has con- 
 stantly and persistently refused to impair the efficacy of the 
 power by restricted construction.^" The object and design of 
 the power to regulate commerce was to establish among the 
 several states a perfect equality as to commercial rights, and 
 to prevent unjust and invidious distinctions, which local jeal- 
 ousies or local and partial interests might be disposed to intro- 
 duce and maintain.^" 
 
 707 (2G:238); Crandall v. Nevada, 419 (6:678); Gibbons v. Ogden, 9 
 
 6 Wall. 35 (18:745); Welton v. Wheat. 1 (6:23); Cook v. Penn- 
 
 Missouri, 91 U. S. 275 (23:347); sylvania, 97 U. S. 566 (24:1015); 
 
 Henderson v. Mayor of New York, Leisy v. Hardin, 135 U. S. 100, 160 
 
 92 U. S. 259 (23:543); Cooley v. (34:128); Champion v. Ames, 188 
 
 Port Wardens, 12 How. 297 (13: U. S. 321 (47:492); Northern Se- 
 
 996) ; Monongahela Navigation Co. curities Co. v. United States, 193 
 
 V. United States, 148 U. S. 312, U. S. 197, 406 (48:676). 
 
 345 (37.470); Olson v. Smith, 195 aoyeazie v. Moor, 14 How. 568 
 
 U. S. 332, 345 (49:224). (14:545); Federalist, Nos. 7 and 
 
 19 Brown v. Maryland, 12 Wheat. 11. 
 
§ 32 DUAL GOVERNMENT IN UNITED STATES. 19 
 
 § 30. The power to regulate commerce is vested in the legis- 
 lative branch of the government. — The power to regulate com- 
 merce is by the constitution vested solely in the legislative 
 branch of the national government, and can be exercised by 
 it alone ;-^ but, as shown by the practice of the government 
 from its earliest history, and the adjudications of the supreme 
 court, it is within the legal competency of congress to enact 
 laws for the regulation of commerce, and to provide that they 
 shall become operative, or that their operation shall be sus- 
 pended, upon the ascertainment of a particular fact or the 
 happening of a future event defined and specified in the stat- 
 ute, and to vest in the president or other exeutive officer the 
 power and authority to ascertain and declare the fact or that 
 the event has happened, and thus put into operation or sus- 
 pend the operation of such commercial regulations in accord- 
 ance with the terms of the statute.^^ And the same principle 
 has been applied to revenue legislation intended to secure com- 
 mercial reciprocity with foreign nations.^^ 
 
 § 31. The commercial power and the taxing power are dis- 
 tinct. — The power to tax and the power to regulate commerce 
 are given to congress in separate clauses of the constitution, and 
 are separate, distinct and independent substantive powers ; and 
 ■congress derives its power to regulate commerce solely and 
 alone from that provision of the constitution which declares 
 that "Congress shall have power * * * to regulate com- 
 merce with foreign nations, and among the several states, and 
 with the Indian tribes. ' ' ^* 
 
 § 32. Limitations upon the commercial power of congress. — 
 The power vested in congress "to regulate commerce with 
 foreign nations, and among the federal states, and with the 
 Indian tribes," is a power complete in itself, is co-extensive 
 -with the subject embraced withia the grant, and may be exer- 
 
 21 U. S. Const, art. I, sec. 8, els. L. ch. 1, 411; Field v. Clark, 143 U. 
 :3, 18. S. 649, 700 (36:294), collecting 
 
 22 The Brig Aurora, 7 Cranch, precedents of the p;ractice of the 
 382 (3:378); Buttfield v. Strana- government. 
 
 han, 192 U. S. 470, 498 (48:525); =3 Field v. Clark, 143 U. S. 649, 
 
 2 U. S. Stat, at L. ch. 24, 528; 2 U. 700 (36:294). 
 
 S. Stat, at L. ch. 39, 605; 1 U. S. 24 Gibbons v. Ogden, 9 Wheat. 
 
 Stat, at L. ch. 53, 565; 2 U. S. Stat. 1 (6:23) ; Ferry Co. v. East St. 
 
 at L. ch. 29, 379; 2 U. S. Stat, at Louis, 107 U. S. 365, 378 (27:419). 
 
20 FEDERAL PROCEDURE AT LAW. § 3S 
 
 eised to its utmost extent, and is subject to no limitations 
 except those prescribed in the constitution.^^ The only con- 
 stitutional limitation upon the power of congress to regulate 
 commerce is that : " No pref rence shall be given by any regula- 
 tion of commerce or revenue to the ports of one state over those 
 of another; nor shall vessels bound to or from one state be 
 obliged to enter, clear, or pay duties in another." ^° This pro- 
 vision is a limitation upon the revenue power as well as upon 
 the commercial power ; and it has been held that the preference 
 or discrimination prohibited is not a preference or discrimina- 
 tion between individual ports within the same or different 
 states, but a preference or discrimination between states.^^ 
 
 § 33. Constitutional provisions correlated to the commerce 
 clause, — Whilst it is true that the taxing power and the com- 
 merce power of congress are separate, distinct and independent 
 substantive powers,^^ yet it is also true that taxation is one of 
 the means and methods of regulating commerce, and many 
 state statutes imposing taxes have been held unconstitutional 
 because they were regulations of commerce f and, accordingly, 
 the framers of the constitution inserted in that instrument pro- 
 visions, which are correlated to the provision giving congress- 
 power to regulate commerce, and are in aid of and auxiliary 
 to it,^° limiting the power of the states to lay taxes, upon, 
 
 25 Gibbons v. Ogden, 9 Wheat. 1, 122 U. S. 326, 347 (30:120,0); Wel- 
 
 (G:23); Leisy v. Harden, 135 U. ton v. Missouri, 91 TJ. S. 275, 283' 
 
 S. 100, 160, (34:128). (23:347); Leloup v. Port of Mo- 
 
 28 U. S. Const. Art. 1, sec. 9, cl. 6. bile, 127 U. S. 640, 649 (32:313) ; 
 
 27 Pennsylvania v. The Wheel- Western Union Telegraph Co. v. 
 ing and Belmont Bridge Co., 18 Seay, 132 U. S. 472, 478 (33:409); 
 How. 421, 459 (15:435). Norfolk & Western R. Co. v. Penn- 
 
 28 Gibbons v. Ogden, 9 Wheat. 1 sylvania, 136 U. S. 114, 121 
 (6:23); Ferry Co. v. East St. (34:394) ; McCall v. California, 136 
 Louis, 107 U. S. 356, 378 (27:419). U. S. 104, 114 (34:391); Crutcher 
 
 29 Brown v. Maryland, 12 Wheat. v. Kentucky, 141 U. S. 47, 62 
 419 (6:678); Philadelphia & Read- (35:649); Lyng v. Michigan, 135- 
 ing Railroad Co. v. Pennsylvania, U. S. 161 (34:150); Cook v. Penn- 
 15 Wall. 284, 299 (21:164); West- sylvania, 97 U. S. 566, 575 
 ern Union Telegraph Co. v. Texas, (24:1015) ; Woodruff v. Parham, 8 
 105 U. S. 460, 464 (26:1067); Rob- Wall. 123 (19:382); Hinson y. 
 bins V. Taxing District of Shelby Lott, 8 Wall. 148 (19:387). 
 County, 120 U. S. 489, 502 (30: 694) ; so Brown v. Maryland, 12 Wheat. 
 Philadelphia & Southern Mail 419 (6:678); Cook v. Pennsyl- 
 Steam Ship Co. v. Pennsylvania, vania, 97 U. S. 566 (24:1015). 
 
§ 34 DUAL GOVERNMENT IN UNITED STATES. 21 
 
 imports and exports and tonnage.^^ This limitation of the tax- 
 ing power of the states was necessary to secure the freedom 
 of commerce, and to give complete efficacy to the commerce 
 power vested by the constitution in the national government.^^ 
 No state has the right to lay a tax on interstate or foreign com- 
 merce in any form, whether by way of duties laid on the 
 transportation of the subjects of that commerce, or on the re- 
 ceipts derived from that transportation, or on the occupation 
 or business of carrying it on, for the reason that such taxation 
 is a burden on that commerce, and amounts to a regulation of 
 it, which belongs solely to congress.'^ 
 
 § 34. Commerce within the meaning of the constitution is a 
 ■unit. — ^Although commerce is infinitely complex in its nature, 
 and the subjects embraced by it are as varied and multifarious 
 as the national life itself, yet, within the meaning of the con- 
 stitution it is a unit ; that is to say, commerce, when considered 
 in its relation to the power of the federal government, is one 
 indivisible subject of governmental power and regulation, and 
 comprehends every species of commercial intercourse and 
 transaction between the United States and foreign nations, and 
 among the several states and with the Indian tribes, and the 
 different branches of this commerce cannot be separated and 
 distingulished for the purpose of excluding either or any of 
 them from the operation of the regulating power of congress.^* 
 
 31 U. S. Const, art. I, sec. 10, els. Brown v. Houston, 114 U. S. 622 
 2 and 3. (29:257); Walling v. Michigan, 
 
 32 Cook V. Pennsylvania, 97 U. S. 116 U. S. 446 ( 29 : 691) ; Pickard v. 
 566, 575 (24:1015); Brown v. Pullman Southern Car Co., 117 U. 
 Maryland, 12 "Wheat. 419 (6:678). S. 34 (29:785); Wabash St. U & 
 
 ,33 Leloup V. Port of Mobile, 127 P. R. R. Co. v. Illinois, 118 U. S. 
 
 U. S. 640, 649 (32:311); Lyng v. 557 (30:244); Robbins v. Shelby 
 
 Michigan, 135 U. S. 161 (34:150); County Taxing District, 120 U. S. 
 
 Cook v. Pennsylvania, 97 U. S. 566, 489 (30:694); Philadelphia & S. 
 
 575 (24:1015); Philadelphia & M. Steamship Co. v. Pennsylvania, 
 
 Reading R. Co. v. Pennsylvania, 15 122 U. S. 326 (30:1200) ; West. U. 
 
 Wall. 232, 282 (21:146>; Pensacola Tel. Co. v. Pendleton, 122 U. S. 347 
 
 Tei. Co. V. West. U. Tel. Co., 96 (30:1187); Ratterman v. West. V. 
 
 V. S. 1 (24:708); Mobile County Tel. Co., 127 V. S. 411 (32:229); 
 
 V. Kimball, 102 U. S. 691 (26:238) ; Brown v. Maryland, 12 Wheat. 419 
 
 West. U. Tel. Co. v. Texas, 105 U. (6:678). 
 
 S. 460 (26:1067); Moran v. New 34 Gibbons v. Ogden, 9 Wheat. 1 
 
 Orleans, 112 U. S. 69 (28:653); (6:23,69). 
 
 Gloucester Ferry Co. v. Pennsyl- In this case, the great chief 
 
 vania, 114 U. S. 196 (29:158); justice, while demonstrating the 
 
22 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 35 
 
 § 35. The commercial power of congress does not extend to 
 state commerce. — There is a eommeree wholly within the state, 
 conducted exclusively within its jurisdiction and territory, and 
 which does not affect other nations or states or the Indian 
 tribes; and to this purely internal commerce of the state, the 
 power of congress does not extend, but its regulation and con- 
 trol belong exclusively to the state.^'' Transportation of prop- 
 erty for others, as an independent business, is commerce, irre- 
 spective of the purpose of the owner of the goods to sell or 
 retain them after they have reached the point of destination; 
 and where goods are shipped from one place to another in the 
 same state, but the transportation is over a route which extends 
 out of the state and then back into it, the transaction is one 
 of interstate commerce and subject to the control of congress. ^^ 
 The transportation of goods by navigation upon the high seas 
 between ports of the same state is commerce with foreign na- 
 
 proposition that the word "com- 
 merce" as used in the clause giv- 
 ing to congress the power to regu- 
 late commerce, comprehends navi- 
 gation within the limits of every 
 state in the Union, in so far as 
 that navigation may be connected 
 with interstate commerce, said: 
 "The word used in the constitu- 
 tion, then comprehends, and has 
 always been understood to com- 
 prehend, navigation within its 
 meaning; and a power to regulate 
 navigation is as expressly granted 
 as if that term had been added to 
 the word 'commerce.' 
 
 "To what commerce does this 
 power extend?. The constitution 
 informs us, to commerce 'with 
 foreign nations, and among the 
 several states, and with the Indian 
 tribes.' 
 
 "It has, we believe, been uni- 
 versally admitted that these words 
 comprehend every species of com- 
 mercial intercourse between the 
 United States and foreign nations. 
 No sort of trade can be carried 
 on between this country and any 
 
 other, to which the power does not 
 extend. It has been truly said, 
 that commerce, as the word is 
 used in the constitution, is a unit, 
 every part of which is indicated 
 by the term. If this be the" ad- 
 mitted meaning of the word, in 
 its application to foreign nations, 
 it must carry the same meaning 
 throughout the sentence, and re- 
 main a unit, unless there be some 
 plain intelligible cause which al- 
 ters it." 9 Wheat. 191, 194. 
 
 35 Gibbons v. Ogden, 9 Wheat. 1, 
 194 (6:69); The Daniel Ball, 10 
 Wall. 557 (19:999); Hall v. De 
 Cuir, 95 U. S. 485 (24:574); Tele- 
 graph Co. V. Texas, 105 U. S. 460 
 (26; 1067);. Wabash St. L. & Pac. 
 R. Co. V. Illinois, 118 U. S. 557 
 (30:244); Stone v. Farmers' Loan 
 & Trust Co., 116 U. S. 307, 347 
 (29:636) ; Louisville, New Orleans 
 & Texas Ry. Co. v. Mississippi, 133 
 U. S. 587, 595 (33:784); Gr§er v. 
 Connecticut, 161 U. S. 519 (40: 
 793). 
 
 30 Hanley v. Kansas City S. R. 
 Co., 187 U. S. 617, 621 (47:333). 
 
§ 37 DUAL GOVEENMENT IN UNItED STATES. 23 
 
 tions, and subject to regulation by congress,^' and is not 
 subject to regulation by the state, because to bring the trans- 
 portation within the control of the state, as p,art of its domestic 
 commerce, the subject transported must be during the entire 
 ■voyage under the exclusive jurisdiction of the state.^* 
 
 § 36. Commerce defined. — Within the meaning of the con- 
 stitution, commerce with foreign nations and among the several 
 states and with the Indian tribes, consists of intercourse and 
 traffic, including in these terms the purchase, sale and exchange 
 of commodities, navigation, the transportation and transit of 
 pel sons and property, communication, and the transmission of 
 intelligence.'* 
 
 § 37. When the commercial power of congress is exclusive, 
 and when paramount only. — The subjects upon which congress 
 may act in the exercise of its commercial power are of two 
 classes namely: (1) Those subjects which are national in their 
 nature, character and sphere of operation, such as foreign and 
 interstate commerce, which demand a single, uniform system, 
 plan or rule of regulation for the whole country, operating 
 alike and equally in all the states of the union, and in regard 
 to such subjects the commercial power of congress is exclus- 
 ive,^" and (2) those subjects which are local in their nature, 
 
 37 Lord v. Goodall N. & P. S. S. Ratterman v. "Western Union Tele- 
 Co., 102 U. S. 541 (26:224). graph Co., 127 U. S. 411 (32:229); 
 
 38 Pacific Coast S. S. Co. v. Rail- Leioup v. Mobile, 127 U. S. 640 
 road Commissioners, 18 Fed. R. 10. (32:311) ; Wabash St. L. & Pac. R. 
 
 39 Gibbons v. Ogden, 9 Wheat. 1, Co. v. Illinois, 118 U. S. 557 
 194 (6:23); Brown V.Maryland, 12 (30:244); Pickard v. Pullman 
 Wheat. 419 (6:678); Woodruff v. Southern Car Co., 117 U. S. 34 
 Parham, 8 Wall. 123 (19:382); (29:785); Hanley v. Kansas City 
 Crandall v. Navada, 6 Wall. 35 Southern R. Co., 187 V. S. 617 
 (18:744); United States v. Halli- (47:333); Champion v. Ames, 188 
 day, 3 Wall. 418 (18:185); Mobile U. S. 321, 375 (47:492). 
 County V. Kimball, 102 U. S. 691 *« Leisy v. Hardin, 135 U. S. 100, 
 (26:238) ; Gloucester Perry Co. v. 160 (34:128) ; Gibbons v. Ogden, 9 
 Pennsylvania, 114 U. S. 196 Wheat. 1 (6:23) ; Brown v. Mary- 
 (29:158); The Pensacola Tele- land, 12 Wheat. 419 (6:678) ; Bow- 
 graph Co. V. The Western Union man v. Chicago & Northwestern 
 Telegraph Co., 96 U. S. 1, 24 Ry. Co., 125 U. S. 465, 524 (31:700) ; 
 (24:708) ; Western Union Tele- Wtlkerson v. Rahrer, 140 U. S. 545, 
 graph Co. V. Texas, 460 (26:1067); 565 (35:572); Lyng v. Michigan, 
 Western Union Telegraph Co.-v. 135 U. S. 161, 167 (34:150). 
 Pendleton, 122 U. S. 347 (30:1187) ; 
 
24 FEDERAL PROCEDUKE AT LAW. § 39 
 
 character and sphere of operation, such as harbors, pilotage, 
 the improvement of iiavigable rivers, bays and harbors, the 
 establishment of beacons and buoys, the construction of bri-dges 
 over navigable rivers, the erection of wharves, piers, docks, 
 and other subjects of a kindred nature, which can be properly 
 regulated only by special provisions adapted to their respective 
 localities, and in regard to such subjects the states may act 
 until congress interferes and supersedes their authority.*^ 
 
 § 38. Failure of congress to act in regard to any commercial 
 subject of a national nature is a declaration that as to such 
 matter commerce shall remain free. — The failure of congress 
 to enact legislation regulating any commercial subject which 
 is national in its nature, character and sphere of operation, 
 requiring uniform regulation, such as foreign and interstate 
 commerce, is equivalent to a declaration that commerce as to 
 such matter, shall remain free.*' 
 
 § 39. Powers expressly prohibited to the states. — The powers 
 expressly prohibited by the constitution to the states are of 
 two classes, namely: (1) Powers absolutely and unconditionally 
 prohibited to the states; (2) powers conditionally prohibited 
 
 *i Cooley V. Port "Wardens, 12 can Bridge Co., 113 U. S. 205 
 
 How. 299, 319 (13:996); Mobile (29:959); Hamilton v. Vlcksburg 
 
 County V. Kimball, 102 U. S. 691, S. & P. R. Co., 119 U. S. 280, 285 
 
 697 (26:238); Bscanaba & L. M. (30:393); Sands v. Manistee River 
 
 Transp. Co. v. Chicago, 107 U. S. Imp. Co., 123 U. S. 288, 297 (31: 
 
 678 (27:442); Parkersburg & O. R. 149); Lakesbore & M. S. Ry. Co. 
 
 Transp. Co. v. Parkersburg, 107 v. Ohio, 173 U. S. 285, 238 (43: 
 
 U. S. 691 (27:584); Morgan's 702); Gloucester Ferry Co. v. 
 
 Steamship Co. v. Louisiana Board Commonwealth of Pennsylvania, 
 
 of Health, 118 U. S. 455 (30:237); 114 U. S. 196, 218 (29:158); Ex 
 
 Smith V. Alabama, 124 U. S. 465 parte McNeil, 13 Wall. 236; Wil- 
 
 (31:508); Nashville, C. & St. L. son v. McNamee, 102 U. S. 572; 
 
 R. Co; V. Alabama, 128 U. S. 96 Olsen v. Smith, 195 U. S. 332, 345 
 
 (32:352); Huse v. Glover, 119 U. (49:224). 
 
 S. 543, 550 (30:487); Williamette « Leisy v. Hardin, 135 U. S. 100, 
 
 Iron Bridge Co. v. Hatch, 125 U. 160 (34:128); Mobile County v. 
 
 S. 1, 17 (31:629); Wilson v. Black Kimball. 102 U. S. 691 (26:238); 
 
 Bird Creek Marsh Co., 2 Pet. 245 Brown v. Houston, 114 U. S. 622, 
 
 (7:412); Pollard v. Hogan, 3 631 (29:257); Wabash St. L. & 
 
 How. 229 (11:573); Passaic P. R. Co. v. Illinois, 118 XJ. S. 557 
 
 Bridges, 3 Wall. 782 (16:799) ; Gil- (30:244) ; Robbins v. Shelby Coun- 
 
 man v. Philadelphia, 3 Wall. 724 ty Taxing Dist, 120 U. S. 489 (30: 
 
 (18:99); Pound v. Turk, 95 U. S. G94). 
 459 (24:525); Cardwell v. Ameri- 
 
§ 40 DUAL GOVERNMENT IN UNITED STATES. 25 
 
 to the states — that is, powers which the states are forbidden 
 to exercise "without the consent of the congress." The powers 
 embraced in the first class are: "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 obli- 
 gation of contracts, or grant any title of nobility. ' ' The powers 
 embraced in the second class are: "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 execut- 
 ing its inspection laws; and the net produce of all duties and 
 imposts, laid by any state on imports and exports, shall be for 
 the use of the treasury of the United States ; and all such laws 
 shall be subject to the revision and the control of the congress. 
 No state shall, without the consent of congress, lay any duty of 
 tonnage, keep troops or ships of war in time of peace, enter 
 into any agreement or compact with another state, or with a 
 foreign power, or engage in war, unless actually invaded, or 
 in such imminent danger as will not admit of delay. ' ' *^ 
 
 § 40. The reserved powers of the states. — The tenth amend- 
 ment to the federal constitution declares that: "The powers 
 not delegated to the United States by the constitution, nor pro- 
 hibited by it to the states, are reserved to the states, respect- 
 ively, or to the people." In this country, the powers of sover- 
 eignty are divided between the government of the union and 
 those of the states, and they are each sovereign with respect 
 t^ the objects committed to it, and neither is sovereign with 
 respect to the objects committed to the other;" and there is a 
 concurrent right of legislation in the states and in the United 
 States, except as both are restrained by the constitution of 
 the United States.^^ The states have the same undeniable 
 and unlimited jurisdiction over all persons and things within 
 their territorial limits, as any sovereign nation, where that jvir- 
 isdiction is not surrendered or restrained by the federal con- 
 stitution ; and none of those powers which relate to merely mu- 
 nicipal legislation have been so surrendered or restrained.*" 
 
 *3 U. S. Const. Art. 1 sec. 10, cl. 45 Mayor v. Miller, 11 Pet. 102 
 
 1, 2, 3 (9:648). 
 
 ** McCulloch V. Maryland, 4 ^o Dobbins v. Comrs. 16 Pet. 435 
 
 Wheat 316 (4:579). (10:1022). 
 
26 FEDERAL PROCEDURE AT LAW. § 42 
 
 § 41. Sovereignty of the states over their navigable waters 
 and the soils beneath them. — When the revolution took place, 
 the people of each state became themselves sovereign, and in 
 that character they held, respectively, the absolute right to 
 all their navigable waters and the soils under them, for their 
 own common use, subject only to the rights since surrendered 
 by them through the constitution to the general government ;*'' 
 and the grant, contained in the constitution, to the United 
 States, of cognizance of all cases of admiralty and maritime- 
 jurisdiction cannot be construed into a cession of the navigable 
 waters within the jurisdiction of a state.*^ It is the settled rule 
 of law, established by repeated decisions of the supreme court of 
 the United States, that absolute property in, and dominion and 
 sovereignty over, the soils under the tide waters in the original 
 states were reserved to the several states, and that the new 
 states since admitted have the same rights, sovereignty, and 
 jurisdiction in that behalf as the original states possess within, 
 their respective borders; and upon the acquisition of territory 
 from Mexico the United States acquired title to tide lands- 
 equally with the title to upland, but with respect to the former- 
 they held it in trust for the future states that might be erected 
 out of such territory. But this rule does not apply to tide 
 lands that had by the antecedent government been previously 
 granted to other parties, or subjected to trusts which would 
 require their disposition in some other way, and when the 
 United States acquired California from Mexico by the Treaty 
 of Guadaloupe-Hidalgo they were bound under the eighth 
 article of that treaty to protect all rights of property emanat- 
 ing from the Mexican government previous to the treaty ; how- 
 ever, irrespective of any such provisions in the treaty, the obli- 
 gations resting upon the United States., in that respect, under 
 the principles of international law, would have been the same.*" 
 
 § 42. Same — Tide waters — The great lakes. — It is the settled 
 law of this country that the ownership of and dominion and 
 sovereignty over lands covered by tide waters, within the 
 
 *' Martin v. Waddell, 16 Pet. 49 Knight v. United Land Asso- 
 
 367 (10:997) ; Sliineley v. Bowlby, elation, 142 U. S. 161, 216 (35:974> 
 152 U. S. 1, 58 (38:331). and authorities there cited. 
 
 48 United States v. Beavans, 3 
 Wheat. 33G (4:404). 
 
§ 44 DUAL GOVERNMENT IN UNITED STATES. 27 
 
 limits of the several states, belong, in trust for public use, to the 
 respective states within v?hieh they are situated, with the conse- 
 quent right to use or dispose of any portion thereof, when that 
 can be done without substantial impairment of the interest of 
 the public in the waters, and subject always to the paramount 
 right of congress to control their navigation so far as may be 
 necessary for the regulation of commerce with foreign nations 
 and among the states. The same doctrine is held to be appli- 
 cable to lands covered by fresh water in the Great Lakes over 
 which is conducted an extended commerce with different states 
 and foreign nations. These lakes possess all the general char- 
 acteristics of open seas, except in the freshness of their waters, 
 and in the absence of the flow of the tide. In other respects 
 they are inland seas, and there is no reason or principle for the 
 ass^ertion of dominion and sovereignty over, and ownership by 
 the state, of lands covered by tide waters that is not equally 
 applicable to its ownership of and dominion and sovereignty 
 Over lands covered by the fresh waters of the lakes. ^° 
 
 § 43. Same — Mississippi river.^The act of congress author- 
 izing the people of the territory of Minnesota to form a state 
 constitution, and making the Mississippi river a common high- 
 way and forever free as well to the inhabitants of said state 
 as to all other citizens of the United States, did not impair the 
 title and jurisdiction of the state over the navigable waters 
 within her boundaries more than rights of that nature are 
 limited with regard to the original states; and the title and 
 rights of riparian owners and proprietors upon the banks of 
 the Mississippi river are to be settled and determined by the 
 laws of the states within which the lands are situated and in- 
 cluded, respectively.'^ 
 
 § 44. Riparian rights determined by state law. — ^It is the 
 settled doctrine of this country that the riparian titles and 
 rights of owners of land upon the navigable waters are settled 
 and determined by the local law of the state where the ques- 
 tion arises, and the courts of the United States in adjudicating 
 upon such titles and rights follow the statutes of the state ■ 
 and the settled decisions of its highest courts. °^ ' 
 
 50 Illinois Central R. CO. v. Peo- Power Co. v. Board of Water 
 pie of The State of Illinois. 146 Comrs., 168 U. S. 343, 374 (42: 
 U. S. 387. 476 (36:1018). 497). 
 
 51 St. Anthony Falls Water 52 St. Anthony Falls Water 
 
28 FEDERAL PEOCEDURE AT LAW. § 45 
 
 § 45. Riparian rights subordinate to the commercial power 
 of congress. — The commercial power vested by the constitution 
 in congress includes the power to prescribe the rules by which 
 commerce is to be governed, comprehends navigation within 
 the limits of every state in the union, so far as that navigation 
 may be in any manner connected with commerce with foreign 
 nations or among the several states or with the Indian tribes, 
 and extends to the control of the navigable waters and the 
 land beneath them not only for the purposes of navigation but 
 also for the purpose of constructing piers, bridges, locks, dams, 
 canals and all other instrumentalities of commerce which in the 
 judgment of congress may be necessary or expedient ; all navi- 
 gable waters and the submerged soil are under the control of 
 the United States for the purpose of regulating and improving 
 navigation, and although the title to the shore and the sub- 
 merged soil is in the various states and individual owners un- 
 der them, such title is always subject to the easement and serv- 
 itude of navigation as a means and instrument of that com- 
 merce, the regulation of which is by the constitution vested in 
 the national government; and the prohibition contained in the 
 fifth amendment to the constitution against the taking of pri- 
 vate property for public use without just compensation has no 
 application to the case of a land owner bordering on a public 
 navigable river whose access from his land to navigability is 
 permanently lost by reason of the construction of a pier rest- 
 ing on submerged lands away from but in front of his upland 
 and which pier was erected by the United States not with in- 
 tent to impair the rights of riparian owners but for the purpose 
 only of improving the navigation of the river. The states hold 
 their navigable rivers and the soil beneath them under a high 
 public trust, to preserve them forever free as public highways, 
 subject only to the commercial power of congress; and the legal 
 title and riparian rights which, under the local law and the 
 grant of the state, became vested in the riparian owner, are 
 held by him subject to the same public trust, and, therefore, 
 subordinate to the power of congress to control and use the 
 soil under the streams whenever the necessities of navigation 
 
 Power Co. v. Board of Comrs., 58 (38:331), where all the cases 
 168 TJ. S. 349, 374 (42:497); are examined. 
 Shinely v. Bowlby, 152 V. S. 1, 
 
§ 46 DUAL GOVERNMENT IN UNITED STATES. 29 
 
 and commerce shall demand it. The right of congress to regu- 
 late commerce, and, as an incident, to regulate navigation, re- 
 mains unaffectd by the question as, to whether the title to the 
 submerged soil is in the state or is in the owner of the shore. 
 A distinction must be recognized between that which is jus 
 privatum and that which is jus publicum; the private right is 
 subordinate to the public right, and the riparian owner takes 
 and holds such proprietary rights as are consistent with the 
 public, right of navigation and the control of congress over 
 that right. The power to regulate commerce is the basis of 
 the power to regulate navigation and navigable waters and 
 streams, and, for the purposes of the exercise of the commer- 
 cial power, it is immaterial whether congress has or has not 
 the ownership of, and dominion over such waters and the land 
 under them.°^ 
 
 § 46. Authority of a state to maintain bridge across navi- 
 gable stream. — The commercial power of congress is exclusive 
 of state authority only when the subjects upon which it is 
 exerted are national in their nature, character, and sphere of 
 operation, and admit and require uniformity of regulations 
 ' affecting alike all the states, and when the subjects of that 
 power are local in their nature or sphere of operations., or con- 
 stitiite mere aids to commerce, the state may provide for their 
 regulation and management until congress intervenes and 
 supersedes their action; and, until congress acts, the states 
 within which navigable streams lie have the power to construct 
 and maintain bridges over them. The states have full power 
 to regulate within their limits matters of internal police, which 
 embraces, among other things, the construction, repair and 
 maintenance of roads and bridges, and the establishment of 
 ferries ; the states are more likely to appreciate the importance 
 of such means of internal communication, and to provide for 
 their proper management, than a government at a distance; 
 and while, as to bridges over navigable streams, the power of 
 the state is subordinate to that of congress, yet until congress 
 
 63 Scranton v. Wheeler, 179 U. 336) ; Gibson v. United States, 16C 
 
 S. 141, 190 (45:126); S. C. 6 C. C. U. S. 269, 271 (41:996); Stockton 
 
 A. 585, 57 Fed. Rep. 803 (opinion v. Baltimore & N. Y. R. Co., 32 
 
 by Lurton) ; Northern Transp. Co. Fed. 9, 20., 
 v. Chicago, 99 U. S. 635, 642 (25: 
 
■30 FEDEEilL PEOCEDUEB AT LAW. § 47 
 
 has acted the power of the state is plenary; but when congress 
 acts directly in regard to bridges authorized by the state, its 
 will must control so far as may be necessary to secure the free 
 navigation of the stream. But where the state has authorized 
 the construction of a bridge across a navigable stream within 
 its limits, and congress has taken no action in regard thereto, 
 the courts of the United States will not grant an injunction 
 against the maintenance of such bridge.^* Bridges which are 
 ■connecting parts of turnpikes, streets and railroads, are means 
 of commercial transportation as well as navigable waters, and 
 the commerce which passes over a bridge may be much greater 
 than would ever be transported on the water obstructed. It 
 is for the' municipal power'to weigh the considerations which 
 belong to the subject and to decide which shall be preferred, 
 and how far either shall be made subservient to the other. 
 The states have always exercised this power, and from the 
 nature and objects of the two systems of government, they 
 must always contipue to exercise it, subject, however, in all 
 cases, to the paramount authority of congress, when the power 
 of the state shall be exercised within the sphere of commercial 
 power which belongs to the national government.^' 
 
 § 47. Same — Federal statute requiring assent of the federal 
 government. — By recent federal legislation, the assent of both 
 the state and federal governments are necessary to the con- 
 struction of any bridge across navigable streams, the plans of 
 which must be submitted to and approved by the chief en- 
 gineers and the secretary of war; and the plans, when once ap- 
 proved, cannot be deviated from, unless the modifications of 
 the plans are first submitted and approved by the chief en- 
 gineers and secretary of war.'" The effect of this legislation, 
 reasonably interpreted, is to make the erection of bridges 
 across a navigable river, within the limits of a state, depend 
 
 64 Caldwell v. American River (41:748); Cummings v. Chicago, 
 
 Bridge Co., 113 U. S. 205, 212 188 U. S. 410, 431 (47:525). 
 
 (28:959); Oilman V. Philadelphia, 55 Gilman v. Philadelphia, 3 
 
 3 Wall. 713 (18:9C); Escanaba Wall. 713 (18:96). 
 
 Transfer Co. v. Chicago, 107 U. S. se 30 U. S. Stat, at L. 1121, 1151, 
 
 678 (16:799); Lakeshore & C. R. Comp. Stat. 1901, p. 3541, 6 Fed. 
 
 Co. V. Ohio, 165 U. S. 366, 3G8 Stat. Anno. 805. 
 
§ 50 DUAL GOVERNMENT IN UNITED STATES. 31 
 
 upon the concurrent or joint assent of both the national gov- 
 ernment and the state government." 
 
 § 48. Power of the states to improve their harbors, bays and 
 navigable rivers. — The improvement of harbors, bays and navi- 
 gable rivers within the state is a local and limited regulation 
 of commerce, not requiring uniformity throughout the union, 
 and the control of congress over such waters is to insure free- 
 dom in their navigation, so far as that is essential to the exer- 
 cise of its commercial power. The states have full cou:;rol over 
 their purely internal cbmmerce; and to promote its growth 
 and insure its safety, they have an undoubted power to remove 
 obstructions from their harbors, rivers and bays and improve 
 them generally, if they do not impair their free navigation 
 as permitted under the laws of the United States or defeat any 
 system for the improvement of their navigation provided by 
 the general improvement; and a state statute, such as that of 
 Alabama for the improvement of the river, bay and harbor of 
 Mobile, is not invalid, and the courts of the United States will 
 administer such state laws and enforce any contract rights 
 accruing under them between competent parties.^* 
 
 § 49. Same — Federal statutes requiring assent of the federal 
 government. — By recent federal legislation, the concurrent or 
 joint assent of both the federal and state governments is neces- 
 sary to the erection of any wharf or other structure in a navi- 
 gable water of the United States, which is entirely within the 
 limits of a state.^" 
 
 § 50. Distinction betvtreen municipal sovereignty and national 
 sovereignty. — In one of the early cases upon th-e subject of the 
 sovereignty and dominion of the respective states over their 
 navigable waters, the United States supreme court, speaking 
 
 5iCummings v. Chicago, 188 U. 188 U. S. 410 (47:525); Montgom- 
 
 S. 410, 431 (47:525); Lakeshore ery v. Portland, 190 U. S. 89, 107 
 
 & C. R. Co. V. Ohio, 165 U. S. 366, (47:965); Willamettee Iron Bridge 
 
 368 (41:748). Co. v. Hatch, 125 U. S. 1 (31:629). 
 
 58 Mobile County v. Kimball, 102 59 30 U. S. Stat, at L. ch. 425, 
 
 U. S. 691, 707 (26:238); Naviga- sec. 10, p. 1151, 6 Fed. Stat. Anno, 
 
 tion Co. V. United States, 148 U. 813; Montgomery v. Portland, 190 
 
 S. 333 (37:470); Lake Shore & C. U. S. 89, 107 (47:965); Cummings 
 
 Ry. Co. V. Ohio, 165 U. S. 365, 369 v. Chicago, 188 U. S. 410 (47:525). 
 (41:747); Cummings v. Chicago, 
 
32 FEDERAL PSOCEDUKB AT LAW. § 51 
 
 through Mr. Justice McKinley, quite appositly drew the dis- 
 tinction between municipal sovereignty and national sover- 
 eignty, and laid down the doctrine that the United i^tates have 
 no constitutional capacity to exercise municipal jurisdiction, 
 sovereignty or eminent domain within the limits of a state or 
 elsewhere, except in the cases expressly provided in the con- 
 stitution."" Chief Justice Marshall had previously decided 
 that the jurisdiction of a state is coextensive with its teiritorial 
 limits, and that the grant by the constitution to the federal 
 judiciary of admiralty jurisdiction was not a cession of the 
 navigable waters and the soils beneath them which lie within 
 the states, and that the federal courts had no jurisdiction of a 
 murder committed in Boston harbor;"^ and the supreme court 
 has by an unbroken line of decisions firmly established the 
 principle that the municipal jurisdiction of the states over their 
 respective navigable waters and the soils beneath is just as, 
 full and ample as over their upland territory, subject only to 
 the commercial power of congress."^ 
 
 § 51. Admiralty jurisdiction of the United States over the 
 public navigable lakes and rivers of the states. — While it is true 
 that the states, respectively, are vested with sovereignty over 
 their navigable waters, yet it is also true that the admiralty 
 and maritime jurisdiction granted to the federal government 
 by the constitution of the United States is not limited to tide 
 waters, but extends to all public navigable rivers and lakes, 
 although they are situated within the territorial limits of the 
 respective states."^ 
 
 60 Pollard v. Hagan, 3 How. 230 243, 23 Am. St. Rep. 831; People 
 (11:565). V. Welch, 141 New York, 271, 38 
 
 61 United States v. Beavans, 3 Am. St. Rep. 795, 24 L. R. A. 119; 
 Wheat. 337 (4:404). Steamboat Co. v. Chace, 16 Wall. 
 
 62 United States v. Beavans, 3 531 (21:371). 
 
 Wheat. 337 (4:404); Smith v. es The Genesee Chief v. Fitz- 
 
 Maryland, 18 How. 76 (15:271); hugh, 12 How. 443 (13:1058); Ex 
 
 McCready v. Virginia, 94 U. S. 394 Parte Garnett, 141 U. S. 1, 18 
 
 (24:248); Manchester v. Massa- (35:631); Fretz v. Bull, 12 How. 
 
 chusetts, 139 U. S. 260, 263 466 (13:1068); Jackson v. The 
 
 (35:165); Lawton v. Steele, 152 Magnolia, 20 How. 296 (15:909); 
 
 U. S. 138 (38:389); State v. Har- Nelson v. Leland, 22 How. 48 
 
 rub, 95 Ala. 182, 36 Am. St. Rep. (16:269); The Propeller Com- 
 
 197, 15 L. R. A. 763; Common- merce, 1 Black, 574 (17:107); The 
 
 wealth V. Manchester, 152 Mass. Hine v. Trevor, 4 Wall. 555 (18: 
 
§ 53 DUAL GOVERNMENT IN UNITED STATES. 33 
 
 § 52. State pilotage laws — Administered in federal courts. — 
 
 State pilotage laws are regulations of commerce, but they are- 
 constitutional and valid, though subject to the commercial' 
 power of congress, and a right arising under such laws will be- 
 enforced in the admiralty courts of the United States. At the 
 time the constitution took effect, pilotage laws existed in several 
 of the states, and were subsequently enacted in others, and in* 
 all such states those laws have been changed from time t» 
 time according to the will of their respective legislatures; 
 suits in the state courts have been founded on them and recov- 
 eries had and many such cases reported in the state reports, 
 and in none of them was a question ever raised or a doubt ex- 
 pressed as to the validity of those laws or the authority of the 
 states to enact them; and congress has by repeated legislation 
 recognized the validity of those laws of the states. °* 
 
 § 53. Constitutional pOwer of the states to lay duties on im- 
 ports and exports for executing their inspection laws. — There 
 is in the federal constitution reserved to the states, respectively, 
 the power, subject to the revision and control of congress, to 
 lay a tax on imports and exports, for the purpose of raising a 
 revenue to defray the expenses absolutely necessary in the exe- 
 cution of their inspection laws. The constitution declares that : 
 "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 
 imports or exports, shall be for the use of the treasury of the 
 United States, and all such laws shall be subject to the revision 
 and control of the congress. ' ' ^^ This power reserved to the 
 states, by which they are permitted to levy a tax on imports, 
 and exports for executing their inspection laws, is an exception 
 
 451) ; The Belfast, 7 Wall. 624 2; Patapsco Guano Co. v. Board 
 (19:266); The Eagle, 8 Wall. 15 of Agriculture, 171 U. S. 345, 361 
 (19:365); The Daniel Ball, 10 (43:191); Minnesota v. Barber, 
 Wall. 557 (19:999); The Montello, 136 U. S. 313 (34:455); Plumley 
 20 Wall. 430 (22:391); Ex Parte v. Massachusetts, 155 U. S. 461 
 Boyer, 109 U. S. 629 (27:1056). (39:223); Schollenherger v. Penn- 
 ey Ex parte McNiel, 13 Wall. 236, sylvania, 171 U. S. 1, 30 (43:49) ; 
 243 (20:624) ; Cooley v. Board of Crutcher v. Kentucky, 141 XJ. S. 47 
 Wardens, 12 How. 299; Olsen v. (35:649); Steiner v. Ray, 84 Ala. 
 Smith, 195 U. S. 332, 345 (49:224). 93; Turner v.Maryland, 107 U. S. 
 65 U. S. Const, art. I, sec. 10, cl. 38 U. S. (27:370). 
 
 3 
 
34 FEDERAL PROCEDUEE AT LAW. § 56 
 
 to the general prohibition on the states contained in the con- 
 stitution, restraining them from laying such imposts or duties, 
 and without it the power would not reside in the states; the 
 exception was made, because without it the tax would have 
 been within the prohibition."^ 
 
 § 54. The subject-matter of inspection laws — Do not operate 
 upon persons. — The constitutional provision authorizes the 
 states to lay a tax on "imports" and "exports" for execut- 
 ing their inspection laws. The words, "imports" and "ex- 
 ports," have never, in this country, neither in the colonies be- 
 fore the revolution, nor since that time, been held to embrace 
 or operate upon anything but personal property, they are not 
 applicable to free human beings, and a state law imposing a 
 tax or duty of one dollar for each and every alien passenger 
 who shall come by vessel from a foreign port to the ports of 
 the state enacting the law, is not an inspection law, but a regu- 
 lation of foreign commerce, and is repugnant to the federal 
 constitution, and, therefore, invalid.^^ 
 
 § 55. What articles are subject to state inspection laws. — 
 The decisions of the supreme court of the United States have 
 defined, four classes of articles or commodities which are subr 
 ject to the operation of state inspecton laws, namely: (1) arti- 
 cles produced in a state, and which are to be retained there for 
 domestic use and consumption, and local commerce; (2) ar- 
 ticles produced in a state and which are to be exported to a 
 foreign country; (3) articles imported into a state from a 
 foreign country; and (4) articles shipped into one state from 
 another state.'^^ 
 
 § 56. The object of state inspection laws. — Some of the ob- 
 jects of state inspection laws are: (1) To improve the quality 
 of domestic products, and to prepare and fit them for exporta- 
 tion and for becoming articles of foreign and interstate com- 
 merce, and to preserve the credit of our exports in foreign 
 
 66 Brown v. Maryland, 12 Wheat. of Agriculture, 171 XJ. S. 345, 361 
 419 (6:678). (43:191); Gibbons v. Ogden, 9 
 
 67 People V. Compagnie Gen. Wheat. 1; Brown v. Maryland, 12 
 Transatlantlque, 107 tJ. S. 59, 63 Wheat. 419 (6:678); Turner v. 
 (27:383); Henderson v. Mayor of Maryland, 107 U. S. 57 (27:378); 
 New York, 92 U. S. 259, 275 (23: Neilson v. Garza, 2 Woods, 290, 
 543). Fed. Gas. 10,091; Plumley v. Mas- 
 
 «8Patapsco Guano Co. v. Board sachusetts, 155 U. S. 461 (39:223). 
 
§ 57 DUAL GOVERNMENT IN UNITED STATES. 35 
 
 markets; (2) to fit domestic products for domestic use, con- 
 sumption and local commerce; (3) to ascertain and determine 
 the fitness of both domestic and imported articles, for domes- 
 tic use, consumption and local commerce; (4) to secure the 
 safety of domestic articles while they remain in the country 
 and before they have become articles of foreign or interstate 
 commerce, and to identify them as the growth and products 
 of the state; and (5) to protect the public health, morals and 
 safety, and to prevent and suppress frauds upon the community 
 and imposition on the public generally, in the sale of articles 
 for domestic use, whether such articles be domestic products 
 or foreign or interstate importations."" 
 
 § 57. The method and means of executing inspection. — A 
 product or an article of commerce is inspected by looking at it, 
 or by tactual manipulation, or by weighing or measuring the 
 package ; or by opening the package and examiniag its contents 
 and taking out a sample and certifying that it is merchantable 
 or unmerchantable ; or by chemical or scientific analysis ; or by 
 applying to it at once some crucial test, which, according to the 
 known laws of nature and the established laws of commerce, is 
 decisive of the character of the article.'^" And iaspection laws 
 may require that products shall be put up in packages of a cer- 
 tain form and of certain prescribed dimensions, and made of 
 certain materials, either on account of the nature and character 
 of the product, or to enable the state to identify the products of 
 its own growth, and to furnish the evidence of such identifica- 
 tion ia the markets to which they are exported ; and may require 
 such products to be carried to warehouses of its own designa- 
 tion for inspection, and the packages containing them tagged, 
 numbered and branded, and the name of the owner or con- 
 signee placed thereon ; and may require the owner or consignee 
 to pay storage on such products while in the warehouse, the 
 
 69 Turner v. Maryland, 107 XJ. S. ''o People v. Compagnie Gen. 
 
 38, 59 (.27:370); Patapsco Guano Transatlantique, 107 U. S. 59, 63 
 
 Co. V. Board of Agriculture, 171 (27:383) ; Turner v. Maryland, 107 
 
 U. S. 345, 361 (43:191); Brown v. U. S. 38, 59 (27:370); Patapsco 
 
 Maryland, 12 Wheat. 419 (6:678); Guano Co. v. Board of Agricul- 
 
 Gibbons v. Ogden, 9 Wheat. 1; ture, 171 V. S. 345, 361 (43:191); 
 
 Neilson v. Garza, 2 Woods, 290, Plumley v. Massachusetts, 155 U. 
 
 Fed. Cas. 10,091; Plumley v. Mass- S. 461 (34:455). 
 achusetts, 155 V. S. 461 (39:223). 
 
36 PEDEEAL PROCEDURE AT LAW. § 60 
 
 cost of inspection, whether by analysis or otherwise, and the 
 cost of labor in receiving and discharging them.'''^ 
 
 § 58. Distinction between the power to enact inspection laws 
 and the power to levy duty for their execution. — There is a 
 clear and substantial distinction between the power of the 
 states to enact inspection laws, and the power to lay a tax on 
 imports and exports for their execution ; the former is derived 
 from the general powers of municipal government reserved to 
 the states, whilst the latter is derived from the exception 
 carved out of the general prohibition on the states against the 
 levy of duties upon imports and exports. The existence of the 
 substantive power to enact the law is a condition precedent to 
 the incidental power to levy the tax for its execution. If the 
 inspection law enacted by the state be in conflict with the com- 
 mercial power of the United States, or any other power vested 
 by the constitution in the federal government, the state en- 
 actment will be void and the tax levy falls with it.''^ The en- 
 actment of inspection laws by the states is sometimes referred 
 to their general powers of municipal legislation, and sometimes 
 it is referred to what is called their police power. '^ 
 
 § 59. Commercial classification of the subjects of inspection 
 laws. — The commercial status of the articles which are the sub- 
 jects of inspection laws and upon which they operate are : 
 (1) Articles which at the time of inspection have not become 
 articles of commerce;''* and (2) articles which have become ar- 
 ticles of commerce, by having been brought into one state from 
 another or from a foreign country.''^ 
 
 § 60. Inspection laws act on articles of commerce in the ex- 
 ercise of the police powers of the state. — As shown in a pre- 
 
 Ti Turner v. Maryland, 107 U. Barber, 136 U.S. 313, 330 (34:455) ; 
 
 S. 38, 59 (27:370); Patapsco Patapsco Guano Co. v. Board of 
 
 Guano Co. v. Board of Agriculture, Agriculture, 171 U. S. 345, 361 
 
 171 U. S. 345, 361 (43:191); Plum- (43:193). 
 
 ley V. Massachusetts, 155 U. S. 461 ^4 Turner v. Maryland, 107 XT. 
 
 (34:455). S. 38, 59 (27:370). 
 
 72 People V. Compagnie Gen. '6 Woodruff v. Purham, 8 Wall. 
 Transatlantique, 107 U. S. 59, 63 123 (19:382); Pittsburgh Coal Co. 
 (27:383); Railroad Co. v. Husen, v. Louisiana, 156 U. S. 590, 600 
 95 U. S. 465 (24:527). (39:544); Patapsco Guano Co. v. 
 
 73 Patterson v. Kentucky, 97 U. Board of Agriculture, 171 U. S. 
 S. 501 (24:1115); Minnesota v. (43:191). 
 
§ 60 DUAL GOVERNMENT IN UNITED STATES. 37 
 
 vious section/' state inspection laws operate upon articles 
 which have become articles of foreign and interstate commerce 
 or which have been brought from a foreign country or from 
 one state into another, and which have thereby been brought 
 under the commercial power of congress. In such cases, the 
 valid state inspection laws proceed from and are an exercise 
 of that power of governmental self-protection reserved to the 
 states, commonly called the police power, and which must be 
 exercised in such manner as not to infringe or trench upon 
 the commercial power of the national govemment.^^ The ac- 
 knowledged power of the states to protect the morals, health 
 and safety of their people by appropriate legislation, some- 
 times touches, in its exercise, the line separating the respective 
 domains of national and state authority; but in view of the 
 complex system of government which exists in this country, 
 presenting, as it does, the rare and difficult scheme of one gen- 
 eral government, whose actions extend over the whole, but 
 which , possesses only certain enumerated powers, and of nu- 
 merous state governments, which retain and exercise all powers 
 not delegated to the union, the judiciary of the United States 
 will not strike down a legislative enactment of a state, espe- 
 cially if it has direct connection with the social order, the 
 health, and the morals of its people, unless such legislation 
 plainly and palpably violates some right or power granted or 
 secured by the federal constitution, or encroaches upon the au- 
 thority delegated to the United States for the attainment of 
 objects of national concern. It is the settled doctrine of the 
 supreme court of the United States that, while the reserved 
 police powers of the states cannot control the prohibitions of 
 the federal constitution nor the powers of the government cre- 
 ated by it, yet the grant to congress of authority to regulate 
 foreign and interstate commerce did not involve a surrender 
 by the states of their police power; and it was in contemplation 
 of the continued existence and operation of the separate sys- 
 tem of laws, from whatever source derived, existing at the time 
 in each state of the union, and regulating the rights and duties 
 of all the inhabitants within its jurisdiction, including those 
 
 76 Ante sec. 55. ture, 171 U. S. 345, 361 (43:191); 
 
 T7 Plumley v. Massachusetts, 155 SchoUenberger v. Pennsylvania, 
 
 U. S. 461 (39:223); Patapsco 171 U. S. 1, 30 (43:49). 
 Guano Co. v. Board of Agricul- 
 
38 FEDERAL PKOCEDUEE AT LAW. § 61 
 
 engaged in interstate commerce, that the constitution was 
 framed and adopted, and the government of the United States, 
 with all its powers, was ordained and established ; ^° and it has, 
 consequently, been held by the supreme court that a state may 
 enact laws and prescribe regulations applicable to carriers en- 
 gaged in interstate and foreign commerce, to insure the safety 
 of persons carried by them, as well as the safety of persons and 
 things liable to be affected by their acts while within the ter- 
 ritorial limits of the state/" 
 
 § 61. Same — Harmony with the commercial power. — The su- 
 preme court of the United States, from its organization, has, in 
 its decision in all cases brought before it involving the ques- 
 tion, steadily and assiduously avoided any conflict between 
 the commercial power of the general government and the po- 
 lice power of the states, with equal fidelity maintaining the su- 
 premacy of the former in the exercise of the powers vested in 
 it by the constitution, and preserving unimpaired the sover- 
 eignty of the latter in the powers reserved to them; and that 
 court has uniformly recognized state legislation, which is de- 
 signed for legitimate purposes, as not, within the meaning of 
 the constitution, necessarily infringing upon the commercial 
 power or any other power which has been confided expressly 
 or by implication to the national government. It is an axiom 
 in our system of government, established by an unbroken line 
 of decisions, that the power of the state to impose restraints 
 and burdens upon persons and property in conservation and 
 promotion of the public health, morals, safety, good order and 
 prosperity, is a power originally and always belonging to the 
 states, and which was not surrendered by them to the general 
 government, nor directly restrained by the constitution of the 
 United States; and the exercise of this power by the states is 
 essentially exclusive, for "it is not to be doubted that the power 
 to make the ordinary regulations of police remains with the 
 individual states, and cannot be assumed by the national gov- 
 ernment. ' ' ^^ The commercial power of the general govern- 
 
 78 Plumley v. Massachusetts, 155 '9 Smith v. Ala. 124 U. S. 465, 
 
 U. S. 461, 482 (39:223); New Or- 476 (31:508). 
 
 leans Gas Light Co. v. Louisiana so Wilkerson v. Rahrer, 140 V. S. 
 
 Light & H. P. & Mfg. Co., 115 U. 545, 565 (35:572); Barbier v. Con- 
 
 S. 650 (29:516); Smith v. Ala., nolly, 113 U. S. 27, 31 (28:924); 
 
 124 U. S. 465, 476 (31:508). Smith v. Ala. 124 U. S. 465, 476 
 
§ 61 DUAL GOVERNMENT IN UNITED STATES. 39 
 
 ment was not intended to secure, and it does not secure to citi- 
 zens of one state the privilege of deceiving and defrauding 
 the public and committing an offense against society in an- 
 other state by means of interstate traffic; and it is v^ithin the 
 power of a state, without violating any right secured by the 
 federal constitution, and without infringing the authority of 
 the general government, to exclude from its markets any com- 
 pound manufactured in another state, which has been artifi- 
 cially colored or adulterated so as to cause it to look like an 
 article of food in general use, and the sale of which may, by 
 reason of such coloration or adulteration, cheat the general 
 public into purchasing that which they may not intend to buy, 
 although such manufactured compound may be in itself a 
 wholesome article of food, and has been recognized by con- 
 gress as a legitimate article of commerce, and has been shipped 
 from the state where it was manufactured into another state 
 and offered for sale in the original package, marked and 
 stamped as required by the laws of the state where it is offered 
 for sale, and the manufacturer has complied with all the re- 
 quirements of a federal statute regulating the sale of such 
 manufactured article. ^'^ But, while a state in the execution 
 of its police powers has the right to enact such legislation as 
 it may deem proper, even in regard to articles of interstate 
 commerce, for the purpose of preventing fraud or deception 
 in the sale of any commodity, and to the extent that it may be 
 fairly necessary to prevent the introduction or sale of an adul- 
 terated article within the limits of the state, yet the state has 
 no right to absolutely prohibit the introduction within its bor- 
 ders of an article of commerce which is not adulterated and 
 which in its pure state is a healthful and wholesome article of 
 food, simply because such an article in the course of its manu- 
 facture may be adulterated by dishonest manufacturers for 
 purposes of fraud and illegal gain, and the inspection and 
 analysis of the article for the purpose of detecting the adulter- 
 ation would be difficult and burdensome.*^ Nor can a state 
 
 (31:508); Sherlock v. Ailing, 93 Co. v. Chicago, 107 U. S. 678, 683 
 
 U. S. 99, 103 (23:819); Plumley v. (27:442). 
 
 Massachusetts, 155 TJ. S. 461, 482 si piumley v. Massachusetts, 155 
 
 (39:223); Lake Shore & M. S. R. U. S. 461, 482 (39:223). 
 
 Co. V. Ohio ex rel. Lawrence, 173 82 Schollenberger v. Pennsyl- 
 
 U. S. 285, 338 (43:702); Escanaba vania, 171 U. S. 1, 30 (43:49). 
 
40 FEDERAL PROCEDURE AT LAW. § 61 
 
 make discrimination against the products and industries of 
 some of the states in favor of its own products or those of 
 other states.^^ The states may, in the exercise of the police 
 power, legislate with reference simply to the public conveni- 
 ence, subject, of course, to the condition that such legislation 
 be not inconsistent with the federal constitution, nor with any 
 act of congress passed in pursuance of that instrument, nor in 
 derogation of any right guarantied or secured by it.'* Legisla- 
 tive enactments of the states, passed under their admitted police 
 powers, and having a real relation to the domestic peace, order, 
 health and safety of the people, but which by their necessary 
 operation affect to some extent or for a limited time the con- 
 duct of commerce among the states, are yet not invalid by 
 force alone of the grant of power to congress to regulate such 
 commerce; and, if not obnoxious to some other constitutional 
 provision or destructive of some right secured- by' the funda- 
 mental law, are to be respected in the courts of the union until 
 they are superseded and displaced by some act of congress 
 passed in execution of the power granted to it by the consti- 
 tution. Local laws of the character mentioned have their 
 source in the powers which the states reserved, and never sur- 
 rendered to congress, of providing for the public health, the 
 public morals, and the public safety, and are not, within the 
 meaning of the constitution, and considered in their own na- 
 ture, regulations of interstate commerce simply because, for a 
 limited time or to a limited extent, they cover the same field 
 occupied by those engaged in such commerce. Such a law, 
 although in a limited degree affecting interstate commerce, 
 is not for that reason a needless intrusion upon the domain of 
 federal jurisdiction, nor strictly a regulation of interstate com- 
 merce, but, considered in its own nature, is an ordinary police 
 regulation designed to secure the well-being and to promote 
 the general welfare of the people within the state by which it 
 was established, and therefore not invalid by force alone of the 
 constitution of the United States.^'' 
 
 83 Brimmer v. Rebam, 138 U. S. nibal & St. J. R. Co. v. Husen, 95 
 
 78,82 (34:862); Voight v. Wright, U. S. 465, 473 (34:527). 
 
 141 tJ. S. 62, 66 (35:638); Minne- si Lake Shore & M. S. R. Co. v. 
 
 sota V. Barber, 136 U. S. 313, 322 Ohio ex rel. Lawrence, 173 U. S. 
 
 (34:455); Walling v. Michigan, 285, 338 (43:702). 
 
 116 U. S. 446, 459 (29:091); Han- ss Hennington v. Georgia, 163 U. 
 
§ 63 DUAL GOVERNMENT IN UNITED STATES. 41 
 
 § 62. Quarantine laws enacted by the states. — While it is 
 true that the power vested in congress to regulate commerce 
 betvsreen the states and vyith foreign nations is a power com- 
 plete in itself, acknowledging no limitations other than those 
 prescribed by the constitution, and that where the action of 
 the states in the exercise of their reserved powers comes into 
 collision with it the latter must give way, yet it is also true 
 that quarantine laws, although they affect foreign and inter- 
 state commerce, belong to that class of state legislation which 
 is valid until displaced by congress ; and the legislation of con- 
 gress bearing on the subject does not purport to abrogate, and 
 has not abrogated the quarantine laws of the several states, 
 but, on the contrary, has, from the foundation of the govern- 
 ment down to the present time, recognized the state systems of 
 quarantine regulations, and is subject to and in aid of them. 
 The matter of quarantine is one in which the rules that should 
 control and govern may in many respects be different in differ- 
 ent localities, and for that reason may be better understood and 
 more wisely established by the local authorities.*^ 
 
 § 63. State action incidentally slffecting foreign and inter- 
 state commerce. — While it is true that the federal and state 
 governments are independent of each other, and each is su- 
 preme within its constitutionally appointed sphere of action,'^ 
 and the constitution has vested in the former the exclusive 
 power to regulate foreign and interstate commerce, yet it is 
 also true that the two governments constitute one composite 
 governmental system, both acting, often simultaneously and 
 at the same place, upon the same public interests and private 
 rights, and upon subjects and instrumentalities of foreign and 
 interstate commerce; and, accordingly, by inevitable necessity, 
 resulting from the inherent and essential nature of the system, 
 the execution of the municipal and police powers of the state 
 incidentally affect foreign and interstate commerce, but it is 
 held by the settled decisions that such state action is not a 
 
 S. 299, 317 (41:166); Lake Shore S. 380, 401 (46:1209); Louisiana 
 
 & M. S. R. Co. V. Ohio ex rel. Law- v. Texas, 176 U. S. 1, 21 (44:347) ; 
 
 rence, 173 TJ. S. 285, 338 (43:702), Morgan's R. R. & Steamship Co. 
 
 and authorities there cited. v. Louisiana, 118 U. S. 455, 467 
 
 86 Compagnie Francaise v. State (30:237). 
 Board of Health, Louisiana, 18G U. 
 
42 
 
 FEDERAL PEOCEDUEE AT LAW. 
 
 §63 
 
 regulation of foreign and interstate commerce, "within the 
 meaning of the constitution," where the state regulation has a 
 real and substantial relation to matters which are the subjects 
 of legitimate state control, and does not go beyond the neces- 
 sities of the case.^' 
 
 87 Ante sec. 17. 
 
 88 Compagnie Francaise v. State 
 Board of Health, Louisiana, 186 U. 
 S..380, 401 (46:1209); Lake Shore 
 & M. S. R. Co. V. Ohio ex rel. Law- 
 rence, 173 U. S. 285, 338 (43:702); 
 Hennington v. Georgia, 163 TJ. S. 
 299, 317 (41; 166) ; Oilman v. Phil- 
 adelphia, 3 Wall. 713, 729 (18:96); 
 
 Western Union Telegraph Co. v. 
 James, 162 U. S. 650, 662 (40: 
 1150) ; Richmond & A. Railroad 
 Co. V. R. A. Patterson Tobacco 
 Co., 169 U. S. 311, 316 (42:759); 
 New York, N. H. & H. R. Co. v. 
 New York, 165 U. S. 628, 631 (41: 
 853). 
 
CHAPTER III. 
 
 THE BASES AND SOURCES OP THE LAW AND JURISPRUDENCE 
 
 ADMINISTERED IN THE CIRCUIT COURTS OF THE 
 
 UNITED STATES. 
 
 64. Two systems of law admin- 
 
 istered in the circuit 
 courts of the United 
 States. 
 
 65. Federal and state laws form 
 
 one composit system of 
 jurisprudence for the 
 state. 
 
 66. The supreme law of the land. 
 
 67. Same — Treaties; their na- 
 
 ture — New principal in- 
 troduced by the constitu- 
 tion. 
 
 68. The United States govern- 
 
 ment vested with power- 
 to execute the federal 
 laws on every foot of 
 American soil. 
 
 69. Power of federal judiciary to- 
 
 declare state law void. 
 
 § 64. Two systems of laws administered in the circuit courts, 
 of the United States. — ^As a corallary of the dual system of 
 government in this country, there are two systems of laws and- 
 jurisprudence administered in the circuit courts of the United 
 States, namely: 1. The constitutional, and statutory law and 
 treaties of the United States, and the body of jurisprudence 
 which has been erected upon them as a foundation by the judi- 
 cial decisions.^ 2. The constitutional, and statutory law, and 
 the common law of the several states, and the body of juris- 
 prudence which has been erected on them as a foundation by 
 the judicial decisions of the highest courts of the states;^ to 
 
 1 U. S. Const, art. VI, paragraph 
 2; Ableman v. Booths 21 How. 516 
 (16:173). 
 
 2 Original judicary act, sec. 34 
 1 U. S. Stat, at L. ch. 20, pp. 73, 
 79; U. S. R. S. sec. 721; Orleans 
 V. Phcehus, 11 Pet. 175 (9:677); 
 Pitch V. Creighton, 24 How. 159 
 (16:596) ; Beaureguard v. New Or- 
 leans, 18 How. 497 (15:469); 
 Christy v. Pridgeon, 4 Wall. 196 
 (18:322); Swift v. Tyson, 16 Pet. 
 1 (10:865); United States v. 
 Reid, 12 How. 361 (13:1023); 
 
 Railroad Co. v. Whitton, 13 Wall 
 k;70 (20:591) ; Bank of Augusta v. 
 Earle, 13 Pet. 519 (10:274) 
 Hinde v. Vattier, 5 Pet. 398 (8 
 168) ; Yonley v. Lavender, 21 Wall. 
 276 (22:536); Walker v. Beal, 9 
 Wall. 743 (19:814); Kendall v. 
 Creighton, 23 How. 90 (16:419); 
 Britton v. Thornton, 112 U. S. 
 526 (28:816); Miles v. Caldwell, 
 2 Wall. 35 (17:755); Equator M. 
 & S. Co. V. Hall, lOG U. S. 86 
 (27:114); Smeed v. Wister, 8 
 Wheat. 690 (5.717); Orvis v. Pow- 
 
44 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 64 
 
 which may be added commercial law and general jurisprud- 
 ence, and in regard to which federal courts exercise their 
 ■own judgment and are not bound by state decisions.' These 
 
 •ell, 98 U. S. 176 (25:238); Brine 
 V. Hartford Fire Ins. Co., 96 XJ. S. 
 627 (24:858); Metropolitan Nat. 
 Bank of New York v. Connecticut 
 Mut. Life Ins. Co., 24 L. E. 1011; 
 Swift V. Smith, 102 U. S. 442 (26: 
 193) ; Connecticut Mut. Life Ins. 
 Co. V. Cushman, 108 U. S. 57 (27: 
 648) ; McClunny v. Silliman, 3 
 Pet. 270 (7:676); Bank v. Dalton, 
 9 How. 522 (13:242); Dulles v. 
 Jones, 9 How. 530 (13:245); Amy 
 V. Dubuque, 98 U. S. 470 (25:228) ; 
 Moores v. Citizens National Bank 
 of Piqua, 104 U. S. 625 (26:870); 
 Davie v. Briggs, 97 U. S. 628 (24: 
 1086); Ross v. Duval, 13 Pet. 45 
 (10:51); Lanahan v. Sears, 102 U. 
 S. 318 (26:180); Bauserman v. 
 Blount, 147 V. S. 647 (37:316); 
 New York Fourth Nat. Bank v. 
 Francklin, 120 U. S. 747 (30:825) ; 
 "Williams v. Eggleston, 170 U. S. 
 304 (42:1047); Adams Express 
 •Co. v. Ohio State Auditor, 165 U. 
 8. 194 (41:683); Bardon v. Land 
 & R. Imp. Co., 157 U. S. 327 (39: 
 719); Halstead v. Buster, 140 U. 
 S. 273 (35:484) ; Gormley v. Clark, 
 134 U. S. 338 (33:909); Clement 
 V. Packer, 125 XJ. S. 309 (31:721); 
 Ridings v. Johnson, 128 U. S. 212 
 (32:401); Hanrick v. Patrick, 119 
 U. S. 156 (30:396); Bacon v. 
 Northwestern Mut. L. Ins. Co., 131 
 U. S. 258 (33:128); Kaukauna 
 Water Power Co. v. Green Bay & 
 M. Canal Co., 142 U. S. 254 (35: 
 1004) ; Butz V. Muscatine, 8 Wall. 
 575 (19:490); Christy v. Prigdon, 
 4 Wall. 196 (18:322); Shelby v. 
 Guy, 11 Wheat. 361 (6:495); 
 League v. Egery, 24 How. 264 (16: 
 ■655); McKeen v. Delancy, 5 
 
 Cranch, 22 (3:25); Williamson v. 
 Suydam, 6 Wall. 723 (18:967); 
 Thatcher v. Powell, 6 Wheat. 119 
 (5:221); St. John v. Chew, 12 
 Wheat. 153 (6:583); Henderson v. 
 Griffin, 5 Pet. 151 (8:79); Ross v. 
 McLung, 6 Pet. 283 (8:400); 
 Bondurant v. Watson, 103 U. S. 
 281 (26:447); Hammond & Co. v. 
 Hastings, 134 U. S. 401 (33:960); 
 Morely v. Lake Shore & M. S. R. 
 Co., 146 U. S. 162 (36:925); McBl- 
 vaine v. Brush, 142 U. S. 155 (35: 
 971) ; Cook County v. Calumet & 
 C. Canal & D. Co., 138 U. S. 635 
 (34:1110); Louisville, N. O. & T. 
 R. Co. V. Mississippi, 133 U. S. 587 
 (33:784); Lincoln County v. Lun- 
 ing, 133 U. S. 529 (33:766); Pitts- 
 burgh C. C. & St. L. R. Co. V. 
 Backus, 154 U. S. 421 (30:1031); 
 Fairfield v. Gallatin County, 100 
 U. S. 47 (25:544); How. Mach. 
 Co. V. Gage, 100 U. S. 676 (25: 
 754); Fleitas v. Cockrem, 101 XJ. 
 S. 301 (25:954); Douglass v. Pike 
 County, 101 U. S. 677 (25:968); 
 Darlington v. Jackson County, 101 
 U. S. 688 (25:972) ; 'Foote v. Pike 
 County, 101 U. S. 688 (25:972); 
 Weightman v. Clark, 103 XJ. S. 
 256 (26:392); Wade v. Walnut, 
 105 U. S. 1 (26:1027); Louisiana 
 V. Pilsbury, 105 U. S. 278 (26: 
 1090) ; Amoskeag Nat. Bank v. Ot- 
 tawa, 105 U. S. 667 (26:1204); et 
 passim. 
 
 3 Pleasant Tp. v. ^tna L. Ins. 
 Co., 138 U. S. 68 (34:864); Lake 
 Shore & M. S. R. Co. v. Prentice, 
 147 U. S. 101 (37:97); Brooklyn 
 City R. R. Co. v. Nat. Bank of Re- 
 public, 102 U. S. 14 (26:61); Wat- 
 son V. Tarpley, 18 How. 517 (15: 
 
§ 65 BASES AND SOUECES OP LAW AND JURISPRUDENCE. 45' 
 
 two systems of laws constitute the bases and sources of the law 
 and jurisprudence administered in the federal courts; and in 
 the following sections of this chapter and in the chapter next 
 succeeding an effort will be made to give a general statement 
 of the application of those laws in judicial controversies in the- 
 federal courts, and to point out the principles which must con- 
 trol in cases of conflict between state and federal laws. 
 
 § 65. Federal and state laws form one composite system of 
 jurisprudence for the state.— The laws of the United States 
 are laws of the several states, and are just as much binding 
 on the citizens and courts thereof as are the state laws. The 
 United States, in their relation to the states, are not a foreign 
 sovereignty, but are a concurrent sovereignty, and, within 
 their constitutional sphere of action, are a paramount sover- 
 eignty. Every citizen of a state is a subject of two distinct 
 sovereignties, having concurrent jurisdiction in the state ; con- 
 current as to place and persons, though distinct as to subject- 
 matter. And although the two sovereignties are distinct, and 
 each is supreme within its own sphere of action, and neither 
 can interfere with the proper jurisdiction of the other, yet 
 the system of laws of the United States and the system of laws 
 of the state together form one composite system of laws and 
 jurisprudence, which constitutes the law of the land for the 
 state. The courts of the two sovereignties are not foreign to 
 each other, nor are they to be treated by each other as such, 
 but as courts of the same country, exercising jurisdiction 
 partly different and partly concurrent. Legal or equitable 
 rights, arising under either system of laws, may be enforced in 
 any court of either sovereignty competent to hear and deter- 
 mine such kind of rights and not restrained by its constitution 
 in the exercise of such jurisdiction. A legal or equitable right 
 arising under the state laws may be enforced in the state 
 courts, and also, if there be diversity of citizenship, in the fed- 
 eral courts. And so, rights, whether legal or equitable, arising 
 under the laws of the United States, may be enforced in the 
 
 509); Mercer County v. Hackett, 1 Neves v. Scott, 13 How. 268 (14: 
 
 Wall. 83 (17:548); Pine Grove 140); Michigan Cent. R. R. Co. 
 
 V. Talcott, 19 Wall. 666 (22:227); v. Myrick, 107 U. S. 102 (27:325); 
 
 Gates V. First Nat. Bank of Mont- Puna v. Bowler, 107 V. S. 529 (27: 
 
 gomery, 100 U. S. 239 (25:580); 424). 
 
46 FEDERAL PROCEDURE AT LAW. § 66 
 
 -federal courts, or in the state courts competent to hear and de^ 
 termine rights of like character and class ; subject, however, to 
 this qualification, that where a right arises under a law of the 
 United States, congress may, if it sees fit, give to the federal 
 •courts exclusive jurisdiction, either expressly or by implica- 
 tion.* 
 
 § 66. The supreme law of the land. — Under the partitioned 
 sovereignty, and the dual system of government established 
 by the constitution, executing and administering two systems 
 of laws within the same territory, although those two systems 
 of laws together form one composite system of jurisprudence 
 and constitute the law of the land for the state, it was, in order 
 to insure domestic tranquility, absolutely essential that in all 
 cases of conflict of authority, one of the governments should 
 be superior to the other, and should be vested with the power 
 and right of control; this exigency was foreseen by the found- 
 ers of the government, and provided for in the federal con- 
 stitution, and to which all the states assented, in the following 
 provisions : 
 
 "This constitution, and the laws of the United States which 
 shall be made in pursuance thereof, and all treaties made, or 
 which shall be made, under the authority of the United States, 
 shall be the supreme law of the land, and the judges, in every 
 state shall be bound thereby, anything in the constitution or 
 laws of any state to the contrary notwithstanding. 
 
 ' ' The senators and representatives before mentioned, and the 
 members of the several state legislatures, and all executive and 
 judical officers, both of the United States and of the several 
 states, shall be bound, by oath or aiiirmation, 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."^ 
 
 An act of congress in conflict with the constitution is void; 
 in declaring what shall be the supreme law of the land, the 
 constitution itself is first mentioned; and not laws of the 
 United States generally, but those only which shall be made 
 in pursuance of the constitution have that rank." The govem- 
 
 4 Claflin V. Houseman, 93 U. S. « Marbury v. Madison, 1 Cranch, 
 
 130, 143 (23:833). 137 (2:60). 
 
 U. S. Const, art. VI, ol. 2, 3. 
 
§ 68 BASES AND SOURCES OP LAW AND JURISPRUDENCE. 47 
 
 ment of the United States, though limited in its powers, is 
 supreme within its rightful sphere of action; and its laws, 
 when made in pursuance of the constitution, form the supreme 
 law of the land/ 
 
 § 67. Same — Treaties; their nature — New principle intro- 
 duced by the constitution. — A treaty is in its nature, primarily, 
 a contract between two or more independent nations, and not 
 a legislative act. It does not generally effect, of itself, the 
 ob.iect to be accomplished, especially so far as its operation is 
 infraterritorial, but is carried into execution by the sovereign 
 power of the respective parties to the instrument. But in the 
 United States a new and differnt principle has been introduced 
 and established by the constitution, which places treaties con- 
 stitutionally made on the same footing, and maks them of like 
 obligation with an act of legislation, and declares them both to 
 be the law of the land, giving neither any superior efficacy over 
 the other ; and, eonsquently, when a treaty is self-executing it is 
 to be regarded by the courts of justice as equivalent to an act 
 of congress. When a treaty and an act of congress relate to 
 the same subject, the courts will always endeavor to construe 
 them so as to give effect to both, if that can be done without 
 violating the language of either; but if the two are inconsist- 
 ent, the one last in date will control the other, provided always 
 the stipulation of the treaty on the subject under judicial in- 
 vestigation is self-executing.^ 
 
 § 68. The United States government is vested with power to 
 execute the federal laws on every foot of AmerciaJi soil. — The 
 government of the United States may, and it is its duty to, 
 execute, by its own agencies, its laws, and exercise its powers 
 and functions on every foot of American soil; and this it may 
 do in a proper case by means of physical force, or by means 
 of the regularly established judicial procedure in its own judi- 
 cial tribunals, as the exigency of the case may require." No 
 
 TMcCulloch V. Maryland, 4 oRe Debs, 158 TJ. S. 564, 600 
 
 Wheat. 316 (4:60). (39:1092); McCulloch v. Mary- 
 
 sFoster v. Neilson, 2 Pet. 253 land, 4 Wheat. 316, 405 (4:576, 
 
 (7:415); Whitney v. Robertson, 605); Ex parte Seibold, 100 U. S. 
 
 124 U. S. 190 (31:386); Edge v. 371, 395 (25:715); Cohens v. Vir- 
 
 Robertson, 112 U. S. 580 (28:798); ginla, 6 Wheat. 264, 413 (5:257, 
 
 Botiller v. Dominguez, 130 U. S. 293); V. S. v. Tarble, 13 Wall. 
 
 238,256 (32:926). 397 (20;597); Ableman v. Booth, 
 
 21 How. 506 (16:169). 
 
48 FEDERAL PBOCEDURE AT LAW. § 69 
 
 trace is to be found in the constitution of an intention to create 
 a dependence of the general government on the governments 
 of the states for the execution of the great powers assigned 
 to it. Its means are adequate to its ends; and on those means ■ 
 alone it was expected to rely for the accomplishment of its 
 ends. To impose on it the necessity of resorting to means 
 which it cannot control, which another government may fur- 
 nish or withhold, would render its course precarious, the result 
 of its measures uncertain, and create a dependence on other 
 governments, which might disappoint its most important de- 
 signs, and is incompatible with the language of the constitu- 
 tion.^" While under the dual system which prevails in the 
 United States, the powers of government are distributed be- 
 tween the states and the United States government, and while 
 the latter is properly styled a government of enumerated 
 powers, yet within the limits of such enumeration it has all 
 the attributes of sovereignty, and, in the exercise of those 
 enumerated powers, acts directly upon the citizen, and not 
 through the intermediate agency of the state. ^^ 
 
 § 69. Power of federal judiciary to declare state law void. — 
 The constitution and laws of a state, when repugnant to the 
 federal constitution, or to any valid law or treaty of the United 
 States, are absolutely null and void ; ^^ and the supreme court of 
 the United States is, by the federal constitution, vested with 
 appellate jurisdiction over the highest courts of the states in 
 all cases arising under the constitution, laws and treaties of 
 the United StateSj and, in the exercise of that appellate juris- 
 diction, it has the power and authority to declare void any 
 law of a state or any provision of a state constitution, if found 
 to be repugnant to the constitution or any valid law or treaty 
 of the United States, and that appellate jurisdiction may be 
 so exercised although a state be a party to the suit.^^ It is a 
 
 10 McCulloch V. Maryland, 4 original judiciary act, sec. 25, 1 U. 
 Wheat. 316, 405 (4:576,605). S. stat. at L. ch. 20, pp. 73, 79; 
 
 11 Re Debs, 158 U. S. 564, 600 U. S. Rev. Stat. sec. 709; Cohens 
 (39:1092). v. Virginia, 6 Wheat. 264, 448 (5: 
 
 12 U. S. Const, art. Vf; Cohens V. 257); McCulloch v. Maryland, 4 
 Virginia, 6 Wheat. 264, 448 (5: Wheat. 316, 437 (4:579); Gibbons 
 257); McCulloch v. Maryland, 4 v. Ogden, 9 Wheat. 1, 239 (6:23); 
 Wheat. 316, 437 (4:579); Gibbons Martin v. Hunter's Lessee, 1 
 V. Ogden, 9 Wheat. 1, 239 (6:23). Wheat. 304, 328 (4:97). 
 
 13 U. S. Const, art. Ill, sec. 2; 
 
§ 69 , BASES AND SOURCES OF LAW AND JUEISPKUDENCE. 49 
 
 political axiom, that the judicial power of every well-coasti- 
 tuted government must be co-extensive with the legislative, 
 and must be capable of deciding every judicial question which, 
 grows out of the constitution and laws.^* And it was the great- 
 object of the federal constitution to establish three great <ie- 
 partments of government, the legislative, the executive and the 
 judicial; the first was to pass laws, the second was to approve- 
 and execute them, and the third was to expound and enforce' 
 them; and without the judicial department, it would be im- 
 possible to carry into effect the powers of the government.^* 
 The basic principle upon which the power of the federal judi- 
 ciary rests is the great principle which pervades the constitu- 
 tion, namely: that the constitution and valid laws and treaties 
 of the United States are supreme, and that they control the 
 constitution and laws of the respective states, and cannot be 
 controlled by them.^° 
 
 1* Cohens v. Virginia, 6 Wheat. is Martin v. Hunters Lessee, 1 
 
 264, 448 (5:257); Osborn v. Bank, Wheat. 304, 328 (4:97). 
 9 Wheat. 738-903 (6:204). isMcCulloch v. Maryland, 4 
 
 Wheat. 316, 437 (4:579). 
 
CHAPTER IV. 
 
 THE ADMINISTRATION OF STATE LAWS BY THE FEDERAL 
 JUDICIARY. 
 
 70. 
 
 The great body of municipal 
 law derived from state 
 authority. 
 
 § 79 
 
 71. 
 
 Legislative recognition of 
 state laws by act of con- 
 
 80. 
 
 
 gress. 
 
 81 
 
 72. 
 
 The construction of the 
 
 82 
 
 
 thirty-fourth section of 
 
 S3 
 
 
 the judiciary act not uni- 
 
 
 
 form. 
 
 84 
 
 73. 
 
 Independent and co-ordinate 
 jurisdiction of the federal 
 courts in the administra- 
 
 85 
 
 
 tion of st?ite laws. 
 
 86 
 
 74. 
 
 Only the strictly local laws 
 \ of the state are binding 
 
 
 
 on the federal courts. 
 
 87. 
 
 75. 
 
 When United States supreme 
 
 88. 
 
 
 court follows state deci- 
 
 89 
 
 
 sions construing state con- 
 
 
 
 stitutions and statutes — 
 
 90 
 
 
 General rule. 
 
 
 76. 
 
 Construction of state con- 
 stitutions and statutes 
 
 
 
 when federal question in- 
 
 91 
 
 
 volved — Impairing obliga- 
 
 
 
 tion of contracts. 
 
 
 77. 
 
 State decisions on enactment 
 of state laws and their 
 harmony with state consti- 
 tution. 
 
 92 
 
 78. 
 
 Construction of state stat- 
 utes providing for the 
 levy and collection of 
 
 taxes. 
 
 93 
 
 State decisions not allowed 
 to impair the obligation 
 of contracts. 
 
 State decisions establishing 
 rules of prop.erty. 
 
 Statutes of limitations. 
 
 Statutes of frauds. 
 
 Same — Fraudulent convey- 
 ances. 
 
 Recording acts of the states. 
 
 Decisions as to whether a 
 corporation has been cre- 
 ated. 
 
 Principles of general law — 
 Responsibility of railroad 
 company to employe. 
 
 General commercial law. 
 
 Same — Insurance policies. • 
 
 When private rights de- 
 termined by common law. 
 
 Constitutionality of state 
 statute authorizing issue 
 of bonds in aid of railway 
 construction. 
 
 When federal courts will 
 change their decisions to 
 conform to state decisions. 
 
 When federal courts will 
 not change their decisions 
 to conform to state deci- 
 sions. 
 
 Federal administration of 
 state laws in cases where 
 a federal question is in- 
 volved. 
 
 § 70. The great body of municipal law derived from state 
 authority. — As will fully and clearly appear from the authori- 
 ties cited in the chapter next preceding, it is an axiom in the 
 
§ 70 ADMINISTEATIOl, OF STATE LAWS BY FEDEKAL. JUDICIARY. 51 
 
 American system of law and government that the constitution, 
 laws, and treaties of the United States are the supreme law of 
 the land, and the main purpose had in view by the founders of 
 the government in giving to tha United States supreme court 
 appellate jurisdicljion over the highest courts of the state in all 
 cases involving a federal question was to preserve that supre- 
 macy and to declare void all state laws found to be in conflict 
 therewith;^ and in all cases carried to the United States su- 
 preme court under the twenty-fifth section of the judiciary act,^ 
 that court must determine for itself the construction and effect 
 of any statute of a state brought under review, without reference 
 to the previous adjudications of the highest court of the state 
 upon the subject,^ and the same principle is applied in cases 
 involving a federal question carried by writ of error or appeal 
 from the circuit courts of the United States to the supreme 
 court.* Notwithstanding the limitations and restrictions im- 
 posed by the federal constitution upon the sovereignty of the 
 states, yet, nevertheless, the government of the United States 
 is a government of enumerated powers, restricted to certain 
 specified purposes of government, national in their character, 
 and the field of state legislation is very broad and comprehen- 
 sive, and the ramifications of state powers touch and press 
 upon the commonwealth at every vital point and regulate, to 
 some extent, every important interest of the local community, 
 and the great body of the municipal law of the states is derived 
 from the authority of the states, respectively; and in a large 
 class of cases the federal courts have concurrent jurisdiction 
 with the courts of the states in the administration of purely 
 local or state laws, and also those general principles of law 
 and jurisprudence which constitute a part of the system of 
 jurisprudence of all the states.^ It is the purpose of this chap- 
 ter to point out some of the subjects of legislation reserved 
 
 iMcCulloch V. Maryland, 4 pervlsors, 16 Wall. 678 (21:382); 
 
 Wheat. 316, 437 (4:579); Gibbons Pine Grove Township v. Talcott, 
 
 V. Ogden, 9 Wheat. 1 (6:23). 19 Wall. 666, 679 (22:227). 
 
 2U. S. Rev. Stat. sec. 709. s u. S. Rev. Stat. sec. 721; Rey- 
 
 3 TJ. S. V. Muscatine, 8 Wall. nolds v. Crawfordville Bank, 112 
 
 575, 587 (19:490); Bank v. Kelly, U. S. 405 (28:733); Ex parte Mc- 
 
 1 Black, 436 (17:173); Hall v. De Neil, 13 Wall. 236 (20:624); The 
 
 Cuir, 95 U. S. 485 (24:547). Orleans v. Phcebus, 11 Pet. 175 
 
 * Railroad Co. V. Otoe County, 16 (9:677); Fitch v. Crelghton, 24 
 
 Wall. 667 (21:375); Olcott v. Su- How. 159 (16:596); Beauregard v. 
 
52 FEDERAL PEOCEDUEE AT LAW. § 72 
 
 to the states, and some of the instances in which state laws are 
 administered by the federal courts, and in the administration 
 of which they follow the construction given them by the high- 
 est courts of the state. 
 
 § 71. Legislative recognition of state laws by act of con- 
 gTess. — By the thirty-fourth section of the original judiciary 
 act, it was enacted that : ' ' The laws of the several states, except 
 where the constitution, treaties or statutes of the United States 
 otherwise require or provide, shall be regarded as rules of 
 decision in trials at common law, in the courts of the United 
 States, in cases where they apply.* This section of the statute 
 was a recognition of the lex loci; it was intended to give a rule 
 of decision, and has no application to the practice of the 
 courts.'^ 
 
 § 72. Construction of the thirty-fourth section of the judi- 
 ciary act not uniform. — The section of the judiciary act above 
 quoted, has often been the subject of construction in the su- 
 preme court of the United States; and the opinions of that 
 court upon the subject have not always been expressed in lan- 
 guage that is entirely harmonious; and what are the laws of 
 the several states which are to be "regarded as rules of decis- 
 ion in trials at common law in the courts of the United States" 
 have not been ascertained and defined, with precision and uni- 
 formity. The language of the section limits its application tO' 
 trials at common law, and there is in the section nothing which 
 requires its application to suits in equity or admiralty ; nor is it 
 applicable to criminal offense against the United States, nor 
 where the constitution, treaties or statutes of the United States 
 require other rules of decision. And while it has often been 
 declared that the courts of the United States adopt and follow 
 the decisions of the state courts in questions which concern 
 merely the constitution and laws of the state, yet there are 
 undoubtedly many exceptions to the rule.' 
 
 New Orleans, 18 How. 497 (15: League v. -Egery, 24 How. 264 (16: 
 
 469); Christy V. Pridgeon, 4 Wall. 655); McKeen v. Delancy, & 
 
 196 (18:322); Chicago & N. W. R. Cranch, 22 (3:25); Williamson t. 
 
 R. Co. V. Whitton, 13 Wall. 270 Suydam, 6 Wall. 723 (18:967). 
 
 (20:571); Hinde v. Vattler, 5 eXJ. S. Rev. Stat. sec. 721.' 
 
 Pet. 398 (8:168); Butz v. Musca- ' Wyman v. Southard, 10 Wheat, 
 
 tine, 8 Wall. 575 (19:490); Shelby 1 (6:253). 
 
 V. Guy, 11 Wheat. 361 (6:495); s Bucher v. Cheshire R. Co., 125. 
 
§ 73' ADMINISTRATION OF STATE LAWS BY FEDERAL JUDICIARY. 53 
 
 § 73. Independent and co-ordinate jurisdiction of the federal 
 courts in the administration of state laws. — The federal courts 
 have an independent jurisdiction in the administration of state 
 laws, co-ordinate with and not subordinate to that of the state 
 courts, and are bound to exercise their own judgment as to the 
 meaning and effect of those laws. The existence of two co- 
 ordinate jurisdictions in the same territory is peculiar, and the 
 results would be anomalous and inconvenient but for the exer- 
 cise of mutual respect and deference. Since the ordinary ad- 
 ministration of the law is carried on by the state courts, if 
 necessarily happens that by the course of their decisions cer- 
 tain rules are established which become rules of property and 
 action in the state, and have all the effect of law, and which it 
 would be wrong to disturb. This is especially true in regard 
 to the law of real estate and the construction of state constitu- 
 tions and statutes. Such established rules are always regarded 
 by the federal courts, no less than by the state courts them- 
 selves, as authoritative declarations of what the law is. But 
 where the law has not been thus settled, it is the right and duty 
 of the federal courts to exercise their own judgment; as they 
 also always do in reference to the doctrines of commercial law 
 and general jurisprudence. So when contracts and transac- 
 tions have been entered into and rights have accrued thereon, 
 under a particular state of the decisions, or when there has 
 been no decision of the state tribunals, the federal courts prop- 
 erly claim the right to adopt their interpretation of the law 
 applicable to the case, although a different interpretation may 
 be adopted by the state courts after such rights have accrued. 
 But even in such cases, for the sake of harmony and to avoid 
 confusion, the federal courts will lean towards an agreement 
 of views with the state courts if the question seems to them 
 balanced in doubt. Acting on these principles, founded as 
 they are on comity and good sense, the courts of the United 
 States, without sacrificing their own dignity as independent 
 tribunals, endeavor to avoid and in most cases do avoid any 
 unseemly conflict with the well-considered decisions of the 
 state courts. As, however, the very object of giving to the 
 federal courts jurisdiction to administer the laws of the states 
 in controversies between citizens of different states, was to in- 
 stitute independent tribunals which it might be supposed 
 
54 FEDERAL PROCEDURE AT LAW. § 75 
 
 would be unaffected by local prejudices and sectional views, it 
 would be a dereliction of their duty not to exercise an inde- 
 pendent judgment in cases not foreclosed by previous adjudi- 
 cation." 
 
 § 74. Only the strictly local laws of the state are binding on 
 federal courts. — It was held at an early day and recently ap- 
 proved by the supreme court, that the true interpretation of 
 the thirty-fourth section of the judiciary act limits its appli- 
 cation to state laws strictly local, that is, to the positive stat- 
 utes of the state, and the construction thereof adopted, by the 
 local tribunals, and to rights and titles to things having a per- 
 manent locality, such as the right and title to real estate and 
 other matters immevable and infraterritorial in their char- 
 acter, and that it has no application to general commercial 
 law.^° 
 
 § 75. When United States supreme court follows state decis- 
 ions construing state constitutions and statutes — General rule. 
 Upon the construction of the constitution and laws of the state, 
 the supreme court, as a general rule, follows the decisions of 
 the highest courts of the state, unless they conflict with or im- 
 pair the efficacy of some provision of the federal constitution, 
 or of a federal statute, or a rule of general commercial law. 
 And this is so where a course of those decisions, whether 
 founded on statutes or not, have become rules of property 
 within the state ; also in regard to rules of evidence in actions 
 at law; and also in reference to the common law of the state, 
 and its laws and customs of a local character when established 
 by repeated decision. Substantially conclusive effect is given 
 to such decisions upon the construction of statutes, as affecting 
 title to real estate within the state. And while the rule is 
 thoroughly settled that remedies in the courts of the United 
 States are at common law or in equity, according to the essen- 
 tial character of the case, uncontrolled in that particular by 
 the practice of the state, yet an enlargement of equitable rights 
 by state statute may be administered by the circuit courts of 
 
 U. S. 555, 558 (31:795), and au- lo Swift v. Tyson, 16 Pet. 1, 24 
 
 thorities cited. (10:8G5) ; Baltimore & Ohio R. Co. 
 
 Burgess v. Selegman, 107 U. S. v. Baugh, 149 U. S. 368, 411 (37: 
 
 20, 38 (27:359); Baltimore & Ohio 772). 
 R. Co. V. Baugh, 149 U. S. 363 (37: 
 772). 
 
§ 77 ADMINISTRATION OF STAi'E LAWS BY FEDERAL JUDICIARY. 55 
 
 the United States as well as by the courts of the state; and 
 when the case is one of a remedial proceeding, essentially of 
 an equitable character, there can be no objection to the exer- 
 cise of the jurisdiction.^^ 
 
 § 76. Construction of state constitutions and statutes when 
 federal question involved — ^Impairing obligation of contract. — 
 In cases involving the question whether the obligation of a 
 contract alleged to have arisen from state legislation or by 
 agreement with the agents of a state by its authority, has been 
 impaired by a state law, a federal question is presented for 
 determination, and, in such cases, the supreme court of the 
 United States will, independently of the decisions of the high- 
 est court of the state, decide for itself (1) whether a contract 
 was created by the state statute or other authority of the state, 
 and (2) if there be a contract whether its obligation has been 
 impaired ; and, if the decision of these questions require a con- 
 struction of the constitution and laws of the state, the court in 
 construing them will act upon its own judgment and independ- 
 ently of the previous adjudications of the state court upon 
 the same or similar questions." 
 
 § 77. State decisions on enactment of state laws and their 
 harmony with state constitution. — Whether the statutes of a 
 state have been duly enacted in accordance' with the require- 
 ments of its constitution is not a federal question, and the de- 
 cision of the highest court of a state as to what are the laws 
 of the state," or that the procedure prescribed by the state con- 
 stitution to be observed by its legislature in the enactment of 
 laws is mandatory and that enactments passed in violation 
 
 11 Gormley v. Clark, 134 U. S. Douglas v. Kentucky, 168 U. S. 488, 
 338,350 (33:909). ' ^ (42:553); Wright v. Nagles, 101 
 
 12 Louisville & Nashville Ra!il- U. S. 791, 797 (25:92); Stearns 
 road Co. v. Palmes, 109 U. S. 244, v. Minnesota, 179 U. S. 223, 262 
 258 (27:922); Louisville Gas Co. (45:162). 
 
 V. Citizens Gas Light Co., 115 U. i-J Leeper v. Texas, 139 U. S. 
 
 S. ,633, 700 (29:510); Citizens 462, 468 (35:225); Railroad Co. 
 
 Savings Bank v. Owensboro, 173 v. Georgia, 98 U. S. 359 (25:185); 
 
 U. S. 636, 662 (43:840); McCul- Leavenworth County v. Barnes, 
 
 loch V. Virginia, 172 U. S. 102, 94 U. S. 70 (24:63); South Otta- 
 
 133 (43:382); Bank v. Skelley, 1 wa v. Perkins, 94 TJ. S. 260 (24: 
 
 Black, 436,443 (17:173); McGahey 154); Bank v. Ottawa, 105 U. S. 
 
 V. Virginia, 135 U. S. 665 (34:305); 667 (26:1204). 
 
56 FEDERAL PROCEDURE AT LAW. § 79 
 
 thereof are void/* or that a statute of the state is in harmony 
 with the state constitution/^ or that a statute imposing a li- 
 cense tax on commerce does not apply to interstate commerce/' 
 or that the procedure by which a state officer has been removed 
 from office was in accordance with the constitution and laws 
 of the state/'' or construing the statute of limitations of a 
 state/^ will be followed by the United States supreme court. 
 
 § 78. Construction of state statutes providing for the levy 
 and collection of taxes. — It is the peculiar province of the high- 
 est court of a state to decide whether or not the method pur- 
 sued in the assessment, levy and collection of taxes is in con- 
 formity with the statutes of the state upon the subject, to con- 
 strue such statutes, and determine whether or not they are in 
 conformity with the state constitution; and such decision, no 
 federal question being involved, will be followed by the su- 
 preme court of the United States.^" 
 
 § 79. State decisions not allowed to impair the obligation of 
 contracts. — The construction given by the highest tribunal of 
 a state to its statute or a provision of its constitution must be 
 taken as correct as to all contracts made under the statute, 
 or constitutional provisions so construed, and the validity and 
 obligation of such contracts cannot be impaired by any subse- 
 quent decision altering the construction; the construction, so 
 far as contract obligations incurred under it are concerned, 
 constitutes a part of the law as much as if embodied in it. So 
 far does this doctrine extend that when a statute of two states, 
 expressed in the same terms, is construed differently by their 
 highest courts, they are treated by the United States supreme 
 court as different laws, each embodying the particular con- 
 struction of its -own state and enforced in accordance with it 
 
 i-t Wilkes County Comrs. v. Co- is Dibble v. Belllngham Bay 
 
 ler, 180 U. S. 506, 533 (45:642). Land Co., 163 U. S. 63 (41:72). 
 
 15 Railroad Co. v. Backus, 154 is Taylor v. Secor, 92 U. S. 575 
 
 U. S. 424 (38:1031); County of (23:663); Bailey v. Maguire, 22 
 
 Lincoln v. Luning, 133 U. S. 529 W&ll. 215 (22:850); Palmer v. 
 
 (33:766); Brown v. New Jersey, McMahon, 133 U. S. 660, 670 (33: 
 
 175 U. S. 172, 177 (44:119). 772); Pullman Palace Car Co. v. 
 
 inOsborn v. Florida, 164 U. S. Pennsylvania, 141 U. S. 18 (35- 
 
 650, 656 (41:586). 613); Provident Sav. Inst. v. 
 
 IT Wilson V. North Carolina, 169 Mass., 6 Wall. 611, 632 (18:907); 
 
 U. S. 586, 600 (42:865). Oilman v. Sheboygan, 2 Black, 
 
 510, 518 (17:305). 
 
;§ 80 ' ADMINISTRATION OF STATE LAWS BY FEDERAL JUDICIARY. 57 
 
 in all cases arising under it. The statute as thus expounded 
 ■determines the validity of all contracts made under it, and 
 .a subsequent change in its interpretation can affect only sub- 
 -sequent contracts. The true rule upon this subject, as estab- 
 lished by a long line of decisions of the supreme court of the 
 United States, "is to give a change of judicial construction in 
 Tespect to a statute the same effect in its operation on contracts 
 and existing contract rights that would be given to a legisla- 
 tive amendment ; that is to say," make it prospective, not retro- 
 •active. After a statute has been settled by judicial construc- 
 tion, the construction becomes, so far as contract rights under 
 it are conoerned, as much a part of the statute as the text 
 itself, and a change of decision is, to all intents and purposes, 
 the same in its effect on contracts as an amendment of the law 
 by legislative enactment." It is not only the right but the 
 duty of the highest court of a state to change its opinions, 
 w^henever in its judgment the necessity arises, and such change 
 may be made for new reasons or because of a change of opin- 
 ion in respect to old ones ; but the supreme court of the United 
 States will not follow a state court in its change of opinion 
 when it affects rights vested before the change was made.^" 
 
 § 80. State decisions establishing rules of property. — When 
 the decisions of the highest court of a state, whether founded 
 on statute or not, have become rules of property within the 
 state, such decisions are binding on the federal courts of law 
 and equity in adjudicating upon titles in that state.^^ The ti- 
 
 20 Louisiana v. Pilsbury, 105 U. Columbia Township, 179 U. S. 
 
 ■S. 278, 302 (2C:1090); Douglass 472, 494 (45:280), and authorities. 
 
 T. Pike County, 101 U. S. 686 (25: cited. This is not in conflict with 
 
 ■971); Christy v. Pridgeon, 4 Wall. B. & L. Asso. v. Brahan, 193 U. S. 
 
 197 (18:322); Gelpcke v. Du- 635-651 (48:823). 
 
 buque, 1 Wall. 75 (17:520); 21 Gormley v. Clark, 134 U. S. 
 
 Thompson v. Lee County, 3 Wall. 338, 350 (33:909); Polk v. 'Wen- 
 
 327 (18:177); Lee County v. dal, 9 Cranch, 87 (3:G65); Shelby 
 
 Rogers, 7 Wall. 181 (19:160); v. Guy, 11 AVlieat. 361 (6:495); 
 
 Chicago V. Sheldon, 9 Wall. 50 Green v. Neal, 6 Pet. 291 (8:495) ; 
 
 (19:594); Olcott v. Supervisors, Webster v. Cooper, 14 How. 488 
 
 16 Wall. 678 (21:382); Fairfield V. (14:510); League v. Egery, <i4 
 
 Gallatin County, 100 U. S. 47 (25: How. 264 (16:655); Russell v. Ely, 
 
 544); Rowan v. Runnels, 5 How. 2 Black, 575 (17:258); Liffingwell 
 
 134; Ohio Ins. & Tr. Co. v. Debolt, v. Warren, 2 Black, 599 (17:261); 
 
 16 How.' 416; Loeb v. Trustees of Woods v. Freeman, 1 Wall. 398 
 
58 FEDERAL PROCEDURE AT LAW. § 82 
 
 tie to real estate, and the construction of deeds and statutes 
 in respect thereto are matters of local law and rules of property 
 and bind the federal courts of law and equity.^^ 
 
 § 81. Statutes of limitations. — No laws of the several states 
 have been more steadfastly or more often recognized by the 
 supreme court of the union, from the beginning, as rules of 
 decisions in the courts of the United States, than statutes of 
 limitations of actions, real and personal, as enacted by the 
 legislature of a state and as construed by its highest court ,- 
 and the courts of the United States, in the absence of legisla- 
 tion upon the subject by congress, recognize the statutes of 
 limitations of the several states as rules of decision under the 
 thirty-fourth section of the Judiciary Act, and give thera the 
 same construction and effect which are given by the state 
 courts.^^ Laws limiting the time for bringing suits constitute 
 a part of the lex fori of every country; they are laws for* ad- 
 ministering justice, one of the most sacred and important sov- 
 ereign rights.-* 
 
 § 82. Statute of frauds. — The statute of frauds, even as ap- 
 plied to commercial instruments, is such a law of the state as 
 
 (17:543); Walker v. Marks, 17 pelly, 115 U. S. 454 (29:449); 
 Wall. 648 (21:744); McKeen v. Lippincott v. Mitchell, 94 U. S. 
 Delancy, 5 Cranch, 22 (3:25); 767 (24:315); Ross v. M'Lung, 6: 
 Williamson v. Suydam, 6 Wall. Pet. 283 (8:400); Henderson v. 
 723 (18:967); Bondurant v. Wat- Griffin, 5 Pet. 151 (8:79); Beau- 
 son, 103 U. S. 281 (26:447). regard v. New Orleans, 18 How. 
 22Halstead v. Butler, 140 U. S. 497 (15:469); St. John v. Chew, 
 273, 278 (35; 484); Ridings v. John- 12 Wheat. 153 (6:583); Thatcher 
 son, 128 U. S. 212 (32:401); v. Powell, 6 Wheat. 119 (5:221); 
 Byers v. McAuley, 149 U. S. 608 Hinde v. Valtler, 5 Pet. 398 (8: 
 (37:867); St. Louis v. Rutz, 138 168); Ward v. Chamberlain, 2 
 U. S. 226 (34:964); Cross v. Al- Black, 430 (17:319); Clements v. 
 len, 141 U. S. 528 (35:843); Van Berry, 11 How. 398 (13:745). 
 Rensseler v. Kearney, 11 How. 23 Bauserman v. Blount, 147 U. 
 297 (13:703); Warburton v. S. 647, 661 (37:316), collecting 
 White, 176 U. S. 484 (44:555); and citing the authorities on the 
 Bardon v. Land & R. Imp. Co., 157 subject; Balkam ^^ Woodstock 
 U. S. 327 (39:719); Williams v. Iron Co., 154 U. S. 177, 190 (38: 
 Gaylord, 186 U. S. 157 (46:1102); 957), collecting and citing author- 
 Middleton v. McCrev/, 23 How. 45 ities. 
 
 (16:403); Blanchard v. Brown, 3 =*Amy v. Dubuque, 98 U. S. 470, 
 
 Wall. 245 (18:69); Gage v. Pum- 471 (25:228). 
 
§ 86 ADMINISTRATION OP STATE LAWS BY FEDERAL JUDICIARY. 59' 
 
 has been declared by congress to be a rule of decision in the 
 courts of the United States.^^ 
 
 § 83. Same— Fraudulent conveyance.— The statute of Eliza- 
 beth against fraudulent conveyances, has been universally 
 adopted in American law as the basis of our jurisprudence on 
 that sub.ieet, and re-enacted in terms, or nearly so, or with 
 some change of language, by the legislatures of the several 
 states. In controversies arising under this statute, involving, 
 as they do, the rights of creditors locally, and a rule of prop- 
 erty, the supreme court of the United States accepts the con- 
 clusions of the highest judicial tribunal of the state as con- 
 trolling.^" 
 
 § 84. Recording acts of the states. — The supreme court of 
 the United States is bound to follow the decisions of the courts 
 of the states in the construction of their recording acts, if 
 there has been a uniform course of decisions respecting them.^" 
 
 § 85. Decision as to whether a corporation has been cre- 
 ated. — The decision of the highest court of a state, that a cer- 
 tain association has been duly created a corporation accord- 
 ing to its constitution and laws is binding on the United States 
 supreme court.^' And a construction placed by the highest 
 court of a state on a statute enacted by its legislature char- 
 tering or incorporating a company, as to the powers of such 
 corporation, is conclusive on the United States supreme court. ^' 
 The decision of the supreme court of Pennsylvania that the 
 Brie Railway Company was doing business in that state in the 
 sense of a statute of the state on that subject was accepted as- 
 conclusive by the supreme court of the United States.^" 
 
 § 86. Principles of general law — Responsibility of railroad 
 company to employe. — The unvarying rule is that in cases or 
 questions whose decisions depend upon general principles of 
 law, the supreme court of the United States, while leaning 
 
 25 Moses V. Bank, 149 U. S. 298 452, 454 (23:413); Bank v. 
 
 (37:743). Sprague, 17 Fed. R. 788. 
 
 26 Peters v. Bain, 133 U. S. 670, =8 Nesmith v. Sheldon, 7 How, 
 697 (33:696); JafEray v. McGhee, 812 (12:925). 
 
 107 U. S. 361, 364 (27:495); Lloyd 29 Smith v. Kernochen, 7 How. 
 
 V. Pulton, 91 U. S. 479, 485 (23: 198 (12:666). 
 
 369); Allen v. Massey, 17 Wall. so Erie Railway Co. v. Pennsyl- 
 
 351 (21:542). vania, 21 Wall. 492, 500 (22:595). 
 
 27 Towrisend v. Todd, 91 U. S. 
 
f)0 FEDERAL PROCEDURE AT LAW. § 87 
 
 toward the views of the highest court of the state where the 
 ■cause of action may arise, will always exercise an independent 
 judgment, and will determine the question involved by a ref- 
 erence to all the authorities applicable to it, and a consider;a- 
 tion of the principles underlying it; and it is the settled doc- 
 trine of the federal courts that the responsibility of a railroad 
 company to its employes, and its liability to them for personal 
 injuries received by the negligence of its servants, and who 
 are, and who are not fellow-servants, are, in the absence of con- 
 trolling local statutes, matters of general law in regard to 
 which the federal courts will exercise an independent judg- 
 ments^ 
 
 § 87. General commercial law. — While the federal courts 
 must regard the laws, and their construction by the state courts 
 (except when the constitution, treaties or statutes of the United 
 .States otherwise provide), as rules of decision in trials at com- 
 mon law, in cases where applicable, they are not bound by the 
 ■decisions of the state courts upon questions of general commer- 
 cial law; for such state decisions are not expositions of any 
 local law, but a law existing throughout the union, except 
 where it has been modified or changed by some local statute; 
 it is a law not peculiar to one state, nor dependent upon local 
 authority, but one arising out of the usages of the commercial 
 world, and in the application of its principles the federal court 
 will exercise an independent judgment.^^ 
 
 51 Baltimore & Ohio Railroad does not spring from any local 
 
 •Company v. Baugti,, 149 U. S. 368, usage or custom; there is in it no 
 
 411 (37:772); Gardner v. MicM- rule of property, but it rests upon 
 
 gan Central R. Co., 150 U. S. 349, those considerations of right and 
 
 361 (37:1107); Pennsylvania Co. justice which have been gathered 
 
 V. Fishack, 59 C. C. A. 269. into the great body of the rules 
 
 In the case first above cited, and principles known as the 
 
 Brewer, Justice, delivering the 'common law.' There is no ques- 
 
 opinion of the court, said: "Again, tion as to the power of the states 
 
 according to the decisions of this to legislate and change the rules 
 
 ■court, it is not open to doubt that of the common law in this re- 
 
 the responsibility of a railroad spect as in others; but in the ab- 
 
 company to its employes is a mat- sence of such legislation the ques- 
 
 ter of general law. ^ * * But tion is one determinable only by 
 
 passing beyond the matter of au- the general principles of the 
 
 thorities, the question is essen- law." 
 
 t'ially one of general law. It does ^^ Swift v. Tyson, 16 Pet. 1, 24 
 
 not depend upon any statute; it (10:865); Oates y. First Nat. 
 
§ 90 ADMINISTRATION OF STATE LAWS BY FEDERAL JUDICIARY. 61 
 
 § 88. Same — Insurance policies. — The construction of a pol- 
 icy of fire insurance is a matter of general commercial law. 
 and is not regulated by any local policy or custom; and, while 
 the decisions of the state tribunals on the subject are entitled 
 to great respect, they cannot conclude the judgment of the 
 federal courts in adjudicating upon the rights of parties to 
 such contracts.'^ The construction of a policy of marine in- 
 surance depends on questions of general commercial law, in 
 respect of which the courts of the United States are at liberty 
 to exercise their own judgment, and are not bound to accept 
 the state decisions of the state where the contract was made.^' 
 But the interpretation of a state statute by the highest court 
 of a state, holding that it applies to policies issued by foreign 
 insurance companies, and annuls the provisions of such policies ' 
 where they contravene the statute, is binding on the supreme 
 court of the United States.'^ 
 
 § 89. When private rights determined by common law. — 
 "When private rights are to be determined by the application 
 of common-law rules alone, the supreme court, although en- 
 tertaining for state tribunals the highest respect, does not feel 
 bound by their decision.^" 
 
 § 90. Constitutionality of state statute authorizing issue of 
 bonds in aid of railway construction. — The question whether or 
 not a state statute enabling any township, city or village to 
 issue bonds in aid of railroad construction, is in conflict with 
 the constitution of the state, is a question of general jurispru- 
 dence, in regard to which the supreme court of the United 
 
 Bank, 100 U. S. 239, 250 (25:580); Washington Insurance Co., 16 
 
 Brooklyn City and Newton R. Co. Pet. 495, 512 (10:1044). 
 
 V. Nat. Bank, 102 U. S. 14, 59 34 Washburn & Marine Manufac- 
 
 (26:61); Carpenter v. Ins. Co., 16 turing Co. v. Reliance Marine In- 
 
 Pet. 495; Watson v. Tarpley, 18 surance Co., 179 U. S. 1, 'l9 (45: 
 
 How. 517 (15:509). "The law re- 49).' 
 
 specting negotiable instruments ss New York Life Insurance Co. 
 
 may truly be declared in the Ian- v. Cravens, 178 TJ. S. 389, 401, (44: 
 
 guage of Cicero, adopted by Lord 1116). 
 
 Mansfield, to be in a great meas- »« Chicago v. Robbins, 2 Black, 
 
 are not the law of a single conn- 418, 429 (17:298); Murray v. 
 
 try only, but of the commercial Railroad, 92 Fed. 871; Myrick v. 
 
 world." Story, Justice, in Swift Mich. Central R. R., 107 U. S. 109 
 
 V. Tyson, supra. (27:327). 
 33 Carpenter v. The Providence 
 
€2 FEDERAL PROCEDUEE AT LAW. § 91 
 
 States will exercise an independent judgment and will not be 
 bound by the decisions of the highest court of the state where 
 the transaction arose. ^'' It is an axiom in Amercian jurispru- 
 dence, that a state statute is not to be pronounced void upon 
 the ground that it is in conflict with the constitution of the 
 state, unless the repugnancy to the constitution be clear and 
 the conclusion that it exists is inevitable ; every doubt is to be 
 resolved in support of the enactment; the particular clause of 
 the constitution with which it is alleged to be in conflict must 
 be specified, and the act must admit of no reasonable construc- 
 tion in harmony with it, before it can be declared void. If the 
 "question involve the validity of commercial securities in the - 
 hands of bona fide holders, and at the time the securities were 
 issued there had been no authoritative intimation that the stat- 
 ute in question was invalid, then in such case the question as 
 to the validity of the statute belongs to the domain of gen- 
 eral jurisprudence, and the federal courts are not bound by 
 the judgment of the courts of the state where the case arises, 
 but must hear and determine for themselves.'* 
 
 § 91. When federal courts will change their decisions to con- 
 form to state decisions. — The supreme court will change its de- 
 cision construing a state constitution when no rights have been 
 acquired under it, and when it is made to appear that before 
 the decision was made the highest tribunal of the state had in- 
 terpreted the constitution differently, and that interpretation 
 has become a fixed rule of property within the state.'" In de- 
 termining what the laws of the several states are, which will 
 be regarded as rules of decision, the supreme court is bound 
 to look, not only at their constitutions and statutes, but at the 
 decisions of their highest courts giving construction to them; 
 and if there be any inconsistency in them, the general rule is 
 that the supreme court follows the latest settled adjudications 
 in preference to their earlier ones.*" 
 
 37 Pine Grove Township v. Tal- so Fairfield v. Gallatin County, 
 
 cott, 19 Wall. 666, 679 (22:227); 100 U. S. 47, 55 (25:544) ;' Rid- 
 
 Olcott V. Supervisors of Fond du ings v. Johnson, 128 U. S. 224 
 
 Lac County, 16 Wall. 678, 698 (32:405); Green v. Neal, 6 Pet. 
 
 (21:382). 291 (8:402); Suydam v. William- 
 
 88 Pine Grove Township v. Tal- son, 24 How. 427 (16:742). 
 
 cott, 19 Wall. 666, 679 (22:227); ^Wade v. Travis County, 174 
 
 Olcott V. Supervisors of Fond du U. S. 499, 510 (43:1060). 
 Lac county, 16 Wall. 678,698 (21: 
 382). 
 
§ 93 ADMINISTEATION OF STATE LAWS BY FEDERAL JUDICIARY. 63 
 
 § 92. When federal courts will not change their decisions to 
 •conform to state decisions. — When the highest court of a state 
 has at diff'erent times placed different constructions upon the 
 .same statute of the state, the supreme court of the United 
 States will not change its decision in order to conform to the 
 •state decision, if thereby contract rights which have accrued 
 under the earlier decisions will be injuriouslj' affected.*^ And 
 when the United States supreme court has first decided a ques- 
 tion arising under a state statute and has placed a construction 
 'On that statute, that court will not change its decision to eon- 
 form to a subsequently rendered contrary decision of the state 
 •court where it would destroy vested rights which accrued un- 
 der the former decision.*^ When a circuit court of the United 
 .States has, beff>re any state decision upon the question, decided 
 a question of state law, construing a state statute, upholding 
 as valid certain commercial securities, and after the decision 
 in the circuit court, and pending a writ of error therefrom, 
 the state court renders a contrary decision, the supreme court 
 will not reverse the decision of the circuit court in order to con- 
 form to the state court's decision.*^ When a circuit court of 
 the United States adjudicates a land title in accordance with 
 the decisions of the state courts constituting rules of property, 
 the supreme court will not reverse the decision of the circuit 
 «ourt because since that decision the state courts have reversed 
 their former decisions on the subject.** 
 
 § 93. Federal administration of state laws in cases where a 
 federal question is involved. — The constitution and valid laws 
 and treaties of the United States are the supreme law of the 
 
 "Douglass V. Pike County, 101 (19:725); Lee County v. United 
 
 xr. S. 677, 688 (25:968); Anderson States, 7 Wall. 181 (19:160); Gel- 
 
 V. Santa Anna, 116 CJ. S. 356 (29: pcbe v. Dubuque, 1 Wall. 175 (17: 
 
 633) ; Ralls County v. Douglass, 520) ; Olcott v. Fond du Lac 
 
 105 U. S. 733 (26:1220); New Buf- County, 16 Wall. 678 (21:382). 
 
 talo V. Cambria Iron Works Co., « Pease v. Peck, 18 How. 595 
 
 105 U. S. 73 (26:1024); Poote v. (15:518); Black v. Bourbon, 
 
 Pike County, 101 U. S. 688 (25: County, 99 U. S. 686 (25:491). 
 
 ■972); Louisiana v. Pllsbury, 105 *3 Carroll County v. Smith, 111 
 
 TJ. s'. 278 (26:1090); Welghtman U. S. 556 (28:517); Burgess v. 
 
 V. Clark; 103 V. S.~ 258 (26:392); Selegman, 107 U. S. 20 (27:359); 
 
 Darlington v. Jackson, 101 TJ. S. Town of Roberts v. Bolles, 101 
 
 088 (25:972); Thompson v. Lee U. S. 119 (25:880). 
 
 County, 3 Wall. 327 (18:177); 44 Morgan v. Curtenius, 20 How. 
 
 Kenosha v. Lamson, 9 Wall. 477 1,3 (15:823). 
 
64 
 
 FEDERAL PEOCEDUBE AT LAW. 
 
 93. 
 
 land, and all state laws, whether in the form of constitntionaL 
 provisions or statutes or judicial decisions, in conflict there- 
 with, are utterly null and vovid ; and, in all cases carried from 
 the highest court of a state under the twenty-fifth section of 
 the Judiciary Act, or by writ of error or appeal from the- 
 United States circuit courts, to the supreme court of the United 
 States, involving any such conflict or any federal question, that 
 court will exercise an independent judgment in determining 
 the question involved, whether it be the construction of a state 
 statute, or the provisions of a state constitution, or a conflict 
 between a state statute and a provision of th^ state constitu- 
 tion, or the validity of a rule laid down by the decisions of the- 
 highest court of the state ; and will, in such cases, declare void 
 all state statutes and constitutional provisions, and overturn, 
 all state decisions, found to be repugnant to or in conflict witk 
 the constitution or any treaty or satute of, or any commission 
 held or authority exercised under the United States.*^ 
 
 4=U. S. Rev. Stat. sec. 709; Mc- 
 Cullocli V. Maryland, 4 Wheat. 
 316, 437 (4:579); Gibbons v. Og- 
 den, 9 Wheat. 1 (6:23); XJ. S. v. 
 Muscatine, 8 Wall. 575, 587 (19: 
 490); Bank v. Kelly, 1 Black, 436 
 (17:173) ; Hall v. De Cuir, 95 U. S. 
 485 (24:547); Railroad Co. v. Otoe 
 County, 16 Wall. 667 (21:375); 
 Olcott V. Supervisors, 16 Wall. 679 
 (21:382); Pine Grove Township 
 V. Talcott, 19 Wall. 666, 679 (22: 
 227) ; Louisville & Nashville Rail- 
 road Co. V. Palmes, 109 U. S. 244, 
 258 (27:922); Louisville Gas Co. 
 V. Citizens Gas Light Co., 115 U. 
 S. 633,700 (29:510); Citizens Sav. 
 ings Bank v. Owensboro, 173 U. S. 
 636, 662 (43:840); McCuUoch v. 
 Virginia, 172 U. S. 102, 133 (43: 
 382); McGaTiey v. Virginia, 135 
 U. S. 665 (34:305); Douglas v. 
 Kentucky, 168 U. S. 488 (42:553); 
 Wright V. Nagle, 101 U. S. 791, 
 797 (25:92); Stearns v. Minne- 
 
 sota, 179 U. S. 223, 262 (45:162); 
 Louisiana v. Pilsbury, 105 U. S.. 
 279,302 (26:1090); Douglass v. 
 Pike County, 101 TJ. S. 686 (25: 
 971); Christy v. Prldgeon, 4 Wall.. 
 197 ( 18 : 322 ) ; Gelpcke v. Dubuque, 
 1 Wall. 75 (17:520); Thompson v. 
 Lee County, 3 Wall. 327 (18: 
 177); Lee County v. Rogers, T 
 Wall, 181 (19:160); Chicago v. 
 Sheldon, 9 Wall. 50 (19:574); 
 Fairfield v. Gallatin County, 100' 
 U. S. 47 (25:544); Rowan v. Run- 
 nels, 5 How. 134; Ohio Ins. & 
 Tr. Co. v. Debolt, 16 How. 416; 
 Loeb V. Trustees of Columbia. 
 Township, 179 U. S. 472, 494 (45: 
 280) ; Martin v. Hunters Lessee, 
 1 Wheat. 304, 328 (4:97); Co- 
 hens V. Virginia, 6 Wheat. 264, 448 
 (5:257); Re Debs, 158 U. S. 564, 
 GOO (39:1092); Ex parte Seibold, 
 100 U. S. 371, 395 (25:715); U. S. 
 Const. Art. VL 
 
CHAPTER V. 
 
 CONSITUTIONAL LIMITATIONS IMPOSED UPON THE FEDBUAL 
 GOVERNMENT AFFECTING JUDICIAL PROCEDURE. 
 
 § 94. Great and important limi- 
 tations imposed by the 
 constitution on the fed- 
 eral judiciary. 
 
 95. The federal constitution 
 
 must be construed in the 
 light of the history and 
 principles of the English 
 common law. 
 
 96. The federal constitution 
 
 construed in the light of 
 contemporaneous history. 
 
 97. Same — Contemporaneous ex- 
 
 position. 
 
 98. Construction of constitu- 
 
 tional amendments. 
 
 99. The first ten amendments 
 
 are limitations on the fed- 
 eral government. 
 
 100. Same — Effect of the four- 
 
 teenth amendment. 
 
 101. Treason defined, the quan- 
 
 tity of evidence requisite 
 for conviction prescribed 
 and the penalty limited 
 by the constitution. 
 
 102. Same — ^Statutory defini- 
 
 tion ^- Punishment of 
 treason. 
 
 103. Bills of attainder prohib- 
 
 ited — Defined. 
 
 104. Same — Defined by United 
 
 States supreme court. 
 
 105. Limitations upon the 
 
 power of the government 
 in prosecutions by im- 
 peachment. 
 
 106. Same — History and charac- 
 
 5 
 
 ter of the procedure in 
 England — The commons 
 the grand inquest of the 
 realm. 
 
 107. Same — Same — Objects and 
 
 purposes of parliamen- 
 tary Impeachments In 
 England — ^Ministerial re- 
 sponsibility. 
 
 108. Same — Objects and pur- 
 
 poses of impeachments 
 under the federal consti- 
 tution. 
 
 109. Same — Restraint upon par- 
 
 doning power of the 
 president. 
 
 110. Samei— Right of trial by 
 
 common-law jury. 
 
 111. Due process of law — ^Max- 
 
 ims of the English con- 
 stitution and the com- 
 mon law. 
 
 112. Same — Means and methods 
 
 by which these guaran- 
 ties were violated. 
 
 113. Due process of law secured- 
 
 by constitutional limita- 
 tion upon both federal 
 and state governments. 
 
 114. The constitutional provis- 
 
 ion securing due process 
 of law as against the ac- 
 tion of the federal gov- 
 ernment. 
 
 115. Same — The inhibition is a 
 
 restraint on all the de- 
 partments of the govern- 
 ment. 
 
66 
 
 FEDEEAL PEOCEDURE AT LAW. 
 
 116. Bue process of law defined. 
 
 117. The federal rule for deter- 
 
 mining what is "due pro- 
 cess of law." 
 
 118. Same — Controlling force of 
 
 the federal constitution. 
 
 119. Same — Same — Decision of 
 
 administrative officers as 
 to right of foreigners to 
 enter the United States. 
 
 120. The "due process of law" 
 
 of the English constitu- 
 tion embodied in the 
 amendments to the fed- 
 eral constitution^ 
 
 121. Unreasonable search and 
 
 seizure. 
 
 122. Same — Requisites of lawful 
 
 search. 
 
 123. No person compelled to 
 '. be a witness against him- 
 self in a criminal- case. 
 
 124. Same — Extent and applica- 
 
 tion of the principle. 
 
 125. Same — Meaning of the 
 
 words, "any criminal 
 case." 
 
 126. Same — Same — Discovery 
 
 in a suit in chancery. 
 
 127. Same — Same — Statutes 
 
 protecting witnesses from 
 prosecution. 
 
 128. Same — Same — Act in rela- 
 
 tion to testimony before 
 the interstate commerce 
 commission. 
 
 129. The maxim Nemo tenetur 
 
 seipsum accusare — Its 
 history, and exceptions to 
 the rule. 
 
 130. Same — Test of admissibil- 
 
 ity of confessions. 
 
 131. Fourth and fifth amend- 
 
 ments violated by fedr 
 eral legislation. 
 
 132. Presentment or indictment 
 
 by grand jury required 
 in prosecutions for In- 
 famous crimes. 
 
 § 133. Office and functions of the 
 grand jury. 
 
 134. Indictment cannot be 
 
 amended or changed by 
 the court. 
 
 135. "Infamous crime" defined. 
 
 136. Same — Felony. 
 
 137. Exception to the constitu- 
 
 tional rule requiring in- 
 dictments in the prosecu- 
 tion of infamous crimes. 
 — Land and naval forces 
 — Militia in actual serv- 
 ice. 
 
 138. Constitutional right of 
 
 trial by jury in criminal 
 cases. 
 
 139. Same — It is a common-law 
 
 jury of twelve men, and 
 a trial according to the 
 rules of the common law. 
 
 140. Speedy and public trial. 
 
 141. Same — When crimes 
 
 against federal laws are 
 local and when not. 
 
 142. Same — Right of accused 
 
 to be Informed of the na- 
 ture and cause of the ac- 
 cusation. 
 
 143. Same — Right of accused to 
 
 be confronted with the 
 witnesses against him — 
 Exceptions — Dying dec- 
 larations. 
 
 144. Same — Same — Object of 
 
 the constitutional provis- 
 ion — Cross-examination 
 ground of exception to 
 the rule. 
 
 145. Same — Right of accused to 
 
 compulsory process for 
 witnesses and assistance 
 of counsel. 
 
 146. Punishment — Cruel and un- 
 
 usual not to be inflicted. 
 
 147. Same — Same — Cumulative 
 
 penalties imposed on 
 habitual criminals. 
 
§ 94 
 
 CONSTITUTIONAL LIMITATIONS. 
 
 67 
 
 148. No person twice In jeo- 
 
 pardy for same offense' — 
 meaning of the prohibi- 
 tion. 
 
 149. Same — Acquittal upon de- 
 
 fective indictment — Com- 
 mon-law rule. 
 
 150. Same — Same — Rule as to 
 
 acquittal upon defective 
 indictment in the federal 
 courts. 
 
 151. Same — The verdict consti- 
 
 tutes the bar. 
 
 152. Same — When defendant pro- 
 
 cures verdict of conviction 
 set aside. 
 
 153. Same — Several counts in 
 
 the indictment — Nolle 
 prosequi as to some — 
 No finding as to others. 
 
 154. Same — Disagreement of the 
 
 jury — Discharge for bias, 
 disqualification or corrup- 
 tion. 
 
 155. Ex post facto laws — ^Inhi- 
 
 bition applies only to 
 legislation concerning 
 crimes. 
 
 156. Same — ^Reason for the con- 
 
 stitutional inhibition. 
 
 157. Same — Defined. 
 
 158. Same — Change in the law 
 
 of procedure. 
 
 159. Same — Legislative acts 
 
 valid as to one class of 
 cases and void as to an- 
 other class. 
 
 160. Same — Illustrations. 
 
 § 161. Same — Statutes mlgitating 
 punishment — ^What is a 
 mitigation. 
 
 162. Same — When accused dis- 
 
 charged. 
 
 163. Constitutional right of 
 
 trial by jury In civil 
 cases at law. 
 
 164. Same — Meaning of the 
 
 phrases "cases in law" 
 and "suits at common 
 law." 
 
 165. Same — Trial by jury de- 
 
 fined. 
 
 166. Same — Not to bs defeated 
 
 by blending legal and 
 equitable demands. 
 
 167. Same — Phillippine Islands. 
 
 168. Same — Not applicable to 
 
 court of claims. 
 
 169. Fact tried by jury not re- 
 
 examined otherwise than 
 according to the rules of 
 the common law. 
 
 170. Same — Doctrine stated by 
 
 Justice Gray. 
 
 171. Same — Facts tried by jury 
 
 in bankruptcy proceed- 
 ings reviewable on writ 
 of error only. 
 
 172. Eminent domain. 
 
 173. Same — ^Public use. 
 
 174. Same — ^What is a taking. 
 
 175. Same — Mode of procedure 
 
 in exercising the power. 
 
 176. Same — Compensation. 
 
 177. Writ of habeas corpus. 
 
 § 94. Great and important limitations imposed by the con- 
 stitution upon the federal judiciary.— The federal constitution, 
 in its original provisions, and more especially in the earlier 
 amendments, imposes great and important limitations and re- 
 jstrictions upon the federal government, as to the means and 
 .methods of procedure to be adopted and pursued in the execu- 
 tion of the powers vested in it by that instrument. These re- 
 
68 FEDERAL PROCEDURE AT LAW. § 95 
 
 straints and limitations embody great principles of human 
 right, which, for centuries prior to the revolution, had been 
 claimed and insisted upon by the English people, and the col- 
 onies in this country, as fundamental principles of the British 
 constitution and the English common law, but which, in the 
 long-continued struggle between the liberties of the people 
 and the prerogatives of the crown, had been constantly in- 
 vaded and violated; the invasion of those principles was one 
 of the chief causes which resulted in the revolution and the 
 formation of the union, and the founders of our government, 
 led by the light of history, imposed these limitations upon that 
 government, as a perpetual guaranty of the individual right 
 of life, liberty and property. While these restraints operate 
 uniformly upon all of the departments of the government, they 
 are first observed as a check upon congress in legislation af- 
 fecting the rights of persons, and more especially in the estab- 
 lishment of judicial procedure ; but their operation is more con- 
 stantly and familiarlj'^ manifested in the federal judicial tri- 
 bunals, as they sit in the public administration of justice, ad- 
 judicating causes which involve the rights sought to be pro- 
 tected. These constitutional limitations literally abide upon 
 and restrain the federal courts at every step taken throughout 
 the progress of every judicial proceeding had or taken before 
 them, in both civil and criminal cases, whether it be in the or- 
 ganization of the tribunal itself, the pleadings, the evidence, 
 the conduct of the cause, the charge to the jury, the judgment 
 and its execution, or appellate proceedings for its revision ; and 
 this being true, there can be no comprehensive understanding 
 of the judicial procedure in the courts of the United States 
 without taking into the account these constitutional provisions 
 affecting it. It is designed in this chapter to discuss the con- 
 stitutional limitations which regulate and control judicial pro- 
 cedure in the federal system, and to state some of the results 
 reached by the adjudicated cases, and also to call attention 
 to some of the rules of constitutional construction. 
 
 § 95. The federal constitution must be construed in the light 
 of the history and principles of the common law of England. — 
 The constitution of the United States was written, and its pro- 
 visions framed, in the language of the English common law, 
 and many of its guaranties of life, liberty and property arc 
 
§ 97 CONSTITUTIONAL LIMITATIONS. 69 
 
 eonfirraatory of the principles of the common law, and are to 
 be read and interpreted in the light of its history and prinei- 
 ples, which were familiarly known to the founders of the gov- 
 ernment, and without reference to which that instrument 
 could not be understood. The judicial ideas and legal defini- 
 tions of American institutions are derived from the common 
 law; and the code of constitutional and statutory construction 
 which has been gradually formed by the judgments of the su- 
 preme court, in the application of the constitution and the laws 
 and the treaties made in pursuance thereof has for its basis so 
 much of the common law as may be implied ia the subject, and 
 constitutes a common law resting on national authority.^ 
 
 § 96. The federal constitution construed in the light of con- 
 temporaneous history. — It is a rule of constitutional construc- 
 tion, supported by the soundest reasoning and the universal 
 experience of mankind, that its provisions should be examined 
 and applied by the aid and in the light of contemporaneous 
 history. The constitution, itself, shows that the framers of 
 that instrument examined the state of things as they existed 
 at the time, and the courts in construing it must, by recurring 
 to the history of the times, make a like examination of the state 
 of things existing when,it was framed and adopted, in order to 
 ascertain the old law, and the then existing evils and mischief, 
 and the remedy intended to be provided for them.^ 
 
 § 97. Same — Contemporaneous exposition. — ^A contempor- 
 aneous exposition and construction of the federal constitution, 
 placed upon it by the discussions in the Federalist, and by the 
 legislation of congress, by men who were contemporary with 
 the formation of that instrument, and were members of the 
 convention that framed it, are of themselves entitled to great 
 weight, and, when long practiced and acquiesced in, are con- 
 clusive.^ 
 
 1 Moore v. United States, 91 U. parte Wilson, 114 U. S. 417-429 
 
 S. 270, 274 (23:346, 347); United (29:89); Soutli Carolina v. 
 
 States V. Wong King Ark, 169 U. United States, 199 U. S. 437-472 
 
 S. 649 (42:890, 893); Smith v. (50:261). 
 
 Alabama, 124 U. S. 465, 483 (31: 2 Rhode Island v. Massachus- 
 508, 514); 1 Kent. Com. 336; Mi- setts, 12 Pet. 657 (9:1233); Co- 
 nor V. Happersett, 21 Wall. 162-178 hens v. Virginia, 6 Wheat. 41S 
 (22:627); Boyd v. United States (5:294). 
 116 U. S. 616-641 (29:746); Ex s Pollock v. Bridgeport Steam- 
 
70 FEDERAL PROCEDURE AT LAW. § 99 
 
 § 98. Construction of constitutional amendments. — In con- 
 struing a constitutional amendment, the safe rule is to read its 
 language in connection with the known condition of affairs out 
 of which the occasion for its adoption may have arisen, and 
 then to construe it, if there be therein any doubtful expres- 
 sions, in a way, so far as is reasonably possible, to forward the 
 known purpose or object for which the amendment was 
 adopted. But this rule of construction could not, of course, 
 be so used as to limit the force and effect of an amendment in 
 a manner which the plain and unambiguous language used 
 therein would not justify or permit.* 
 
 § 99. The first ten amendments are limitations on the fed- 
 eral government. — The first ten amendments to the federal 
 constitution contain no restrictions on the powers of the states, 
 but were intended to operate solely and exclusively on the fed- 
 eral government. In order to limit the powers which it was 
 feared might be claimed or exercised by the federal govern- 
 ment, under the provisions of the constitution as it was when 
 adopted, the first ten amendments to that instrument were 
 proposed to the legislatures of the several states by the first 
 congress on September 25th, 1789. They were intended as re- 
 straints and limitations on the powers of the general govern- 
 ment, and were not intended to and did not have any effect 
 upon the powers of the respective states. ° 
 
 boat Co., 114 U. S. 411, 417 (29: (19:223); United States v. Cruik- 
 
 147); Burrow-Giles Lithographic shank, 92 U. S. 542, 552 (23:588, 
 
 Co. V. Sarony, 111 U. S. 53 (28: 591); Spies v. Illinois, 123 U. S. 
 
 349); Cooley v. Philadelphia Port 131 (31:80); Re Sawyer, 124 U. S. 
 
 Wardens, 12 How. 299 (13:996); 200 (31:402, 408); Eilenbecker v. 
 
 Cohens v. Virginia, 6 Wheat. 264 Plymouth County DIst. Ct, 134 
 
 (5:257); Martin v. Hunter, 1 U. S. 31 (33:801) ; Davis v. Texas, 
 
 Wheat. 304 (4:97); Stuart v. 139 U. S. 651 (35:30); McElvaine 
 
 Laird, 1 Cranch, 299 (2:115). v. Brush, 142 U. S. 155 (35:971); 
 
 * Maxwell v. Dow, 176 V. S. 581. Thorrington v. Montgomery, 147 
 
 617 (44:597). V. S. 490 (37:252); Miller v. 
 
 5 Brown v. New Jersey, 175 U. Texas, 153 U. S. 535 (38:402); 
 S. 172, 177 (44:119, 122); Maxwell Holden v. Hardy, 169 U. S. 366 
 V. Dow, 176 U. S. 581, 617 (44: (42:787); Walker v. Sauvinet, 92 
 597. 611): Barron v. Baltimore, 7 U. S. 90 (23:678); Edwards v. Bl- 
 Pet 243 (8:672); Pox v. Ohio, 5 liott, 21 Wall. 532 (22:487); Pear- 
 How. 410 (12:231); Twitchell v. son v. Yewdall, 95 U. S. 294 
 Pennsylvania, 7 Wall. 321 (24:436). 
 
§ 101 CONSTITUTIONAL LIMITATIONS. 71 
 
 § 100. Same — Effect of the fourteenth amendment. — The 
 
 adoption of the fourteenth amendment to the constitution has 
 not enlarged the operation of the first ten amendments; it has 
 not had the effect to make the former amendments operate as 
 restraints and limitations upon the state governments ; nor has 
 it had the effect of making all or any of the provisions of the 
 first ten amendments, so far as they secure the fundamental 
 rights of individuals against the exercise of federal power, 
 immunities of a citizen of the United States; nor does it take 
 from the states full control over the procedure in their own 
 courts, in either civil or criminal cases, further than to require 
 that such procedure must not work a denial of the funda- 
 mental rights, nor conflict with specific and applicable provi- 
 sions of the federal constitution." 
 
 § 101. Treason defined, the quantity of evidence requisite 
 for conviction prescribed, and the penalty limited by, the con- 
 stitution. — The constitution declares that: "Treason against 
 the United States shall consist only in levying war against 
 them, or in adhering to their enemies, giving them aid and 
 comfort. No person shall be convicted of treason unless on 
 the testimony of two witnesses to the same overt act, or on 
 confession in open court. The congress shall have power to 
 declare the punishment for treason; but no attainder of trea- 
 son shall work corruption of blood, except during the life of 
 the person attainted. ' ' '' This definition of treason reduces the 
 constituent elements of the crime to two ultimate facts, either 
 one of which, when established by the quantity of evidence 
 prescribed, makes out the offense. The vague and indefinite 
 terms of the Eiritish statute on the subject, and the doctrine 
 of "constructive treason," the great number of acts held by 
 the English judges to constitute it, the admission of hearsay 
 evidence, the denial to the accused of counsel and compulsory 
 process for witnesses, had placed in the hands of the crown 
 the most powerful engine of oppression against the people in 
 their struggle for freedom known in English history,* and it 
 
 6 Maxwell v. Dow, 176 TJ. S. 581, s Hallam's Const. Hist. Bng. 102, 
 
 617 (44:597,611); Brown v. New 138, 198, 574, 575, 578, 579; IV 
 
 Jersey, 175 U. S. 172, 177 (44:119, Blackst. Com. 75-85; State Tr. I, 
 
 122). 965; State Tr. IV, 1329; State Tr. 
 
 7U. S. Const, Art. Ill, sec. 3. VI, 153; State Tr. IX, 817, 861, 
 
72 FEDEEAL PEOCEDUEE AT LAW. § 102 
 
 was no doubt one of the purposes of the framers of the consti- 
 tution to prevent kindred evils in this country. And by the 
 judicial procedure established by the legislative branch of the 
 government, acting in obedience to the mandate of the con- 
 stitution, no person shall be prosecuted, tried or punished ior 
 treason, unless the indictment is found within three years next 
 after such treason is committed; and when any person is in- 
 dieted of treason, a copy of the indictment and a list of the 
 .iury, and of the witnesses to be produced on the trial for 
 proving the indictment, stating the place of abode of each 
 juror and witness, shall be delivered to him at least three en- 
 tire days before he is tried for the same; and he shall be al- 
 lowed to make his full defense by counsel learned in the law, 
 and the court before which he is tried or some judge thereof, 
 shall immediately, upon his request, assign to him such counsel, 
 not exceeding two, as he may desire, and they shall have free 
 access to him at all seasonable hours; and he shall be entitled 
 to challenge peremptorily twenty jurors; and he shall be al- 
 lowed, in his defense, to make any proof that he can produce 
 by lawful witnesses, and shall have the like process of the 
 court to compel his witnesses to appear at the trial, as is usu- 
 ally granted to compel witnesses to appear on behalf of tho 
 prosecution." 
 
 § 102. Same — Statutory definition — Punishment of treason. 
 The legislative department has declared that, "every person 
 owing allegiance to the United States who levies war against 
 them, or adheres to their enemies, giving them aid and comfort 
 within the United States or elsewhere, is guilty of treason. ' ' " 
 And the punishment of treason is declared as follows : 
 
 "Every person guilty of treason shall suffer death; or, at 
 the discretion of the court, shall be imprisoned at hard labor 
 for not less than five years, and fined not less than ten thous- 
 and dollars, to be levied on and collected out of any or all of 
 his property, real and personal, of which he was the owner at 
 the time of committing such treason, any sale or conveyance 
 to the contrary notwithstanding; and every person so con- 
 
 862; state Tr. XI, 297, 322; State » U. S. Rev. Stat. sees. 819, 1033, 
 Tr. XX, 923. 1034, 1043. I 
 
 10 U. S. Rev. Stat. sec. 5331. 
 
§ 103 CONSTITUTIONAL LIMITATIONS. 73 
 
 victed of treason shall, moreover, be incapable of holding any 
 office under the United States. ' ' ^^ 
 
 § 103. Bills of attainder prohibited — Defined. — ^Both the fed- 
 eral government ^^ and the states ^^ are prohibited from pass- 
 ing bills of attainder, and the prohibition extends to and in- 
 cludes bills of pains and penalties.^* This species of legisla- 
 tive action is characterized by an English law writer as follows : 
 
 "Bills of attainder and bills of pains and penalties, are in- 
 stances of the transcendent power of the legislature to punish 
 offenses otherwise than according to pre-ordained law, by a 
 discretionary severity in lieu of an invariable standard. This 
 occasional rigor too, is usually substituted for the ancient rule, 
 at a time when men's minds are heated with contest, or dis- 
 turbed with threatened dangers. They furnish an instance of 
 the legislature quitting its proper province, and suspending 
 the judicial functions; and that, in order to punish the trans 
 gressions of laws which they have neglected to propound. Or 
 impeachments, the commons are accusers, and the peers arc 
 judges of the crime imputed. In punishing criminals by bill, 
 the king, lords and commons are accusers and judges, charg- 
 ing, convicting and condemning uno flatu." ^^ Discussing the 
 political ethics of this extraordinary procedure in a review of 
 the Earl of Strafford's case, the great historian of the British 
 •constitution said * 
 
 "It is undoubtedly a very important problem in political 
 •ethics, whether great offenses against the commonwealth may 
 not justly incur the penalty of death by a retrospective act of 
 the legislature, which a tribunal restrained by law is not 
 •competent to inflict. Bills of attainder had been by no means 
 uncommon in England, especially under Henry VIII., but gen- 
 erally when the crime charged might have been equally pun- 
 ished by law. They are less dangerous than to stretch the 
 boundaries of a statute by arbitrary construction. Nor do 
 they seem to differ at all in principal from those bills of pains 
 
 11 IT. S. Rev. Stat. sec. 5332. ^ Ex parte Garland, 4 Wall. 333 
 
 12 U. S. Const. Art. I, sec. 9, (18:306); Cummings v. Missouri, 
 cl. 3; Ex parte Garland, 4 Wall. 3 Wall. 277 (18:356). 
 
 .^33 (18:360); Cummings v. Mis- );5 Dwarris on Statutes (2nd Ed. 
 ;souri, 3 Wall. 277 (18:356). 1848), 254. 
 
 13 U. S. Const. Art I, sec. 10. 
 
74: FEDERAL PEOCEDUEE AT LAW. § 105 
 
 and penalties which, in times of comparative moderation and 
 tranquility, have somtimes been thought necessary to visit 
 some unforeseen and anamolous transgression beyond the reach 
 of our penal code. There are many, indeed, whose system 
 absolutely rejects all such retrospective punishment, either 
 from the danger of giving too much scope to vindictive pas- 
 sion, or on some more abstract principle of justice. Those who 
 may incline to admit that the moral competence of the sover- 
 eign power to secure itself by the punishment of a heinous 
 offender, even without the previous warning of law, is not to be 
 denied, except by reasoning which would shake the founda- 
 tion of its right to inflict punishment in ordinary cases, will 
 still be sensible of the mischief which any departure from 
 stable rules, under the influence of the most public-spirited 
 zeal, is likely to produce." ^^ The penalty in cases of attainder 
 of treason and felony was death, accompanied with forfeiture 
 of land and goods and corruption of blood. ^^ 
 
 § 104. Same — Defined by United States supreme court. — A 
 bill of attainder is a legislative act, which inflicts punishment 
 without a judicial trial. If the punishment be less than death,, 
 the act is termed a bill of pains and penalties. Within the 
 meaning of the constitution, bills of attainder include bills of 
 pains and penalties. In these cases, the legislative body, in ad- 
 dition to its legitimate functions, exrcises the 'powers and office 
 of judge; it assumes jvidicial magistracy; it pronounces upon 
 the guilt of the party, without any of the forms or safeguards 
 of trial; it determines the sufficiency of the proof produced, 
 whether conformable to the rules of evidence or otherwise ; and 
 it fixes the degree of punishment in accordance with its own 
 notions of the enormity of the offense. These bills are gen- 
 erally directed against individuals by name; but they may be 
 directed against a whole class; they inflict punishment absol- 
 utely, or conditionally.^^ 
 
 § 105. Limitations upon the power of the government in 
 prosecutions by impeachment. — The provisions of the federal 
 constitution upon the subject of impeachments, written, of 
 course, in thfe light of the history of parliamentary inpeach- 
 
 10 Hallam's Const. Hist. 298. is Cummlngs v. Missouri, 3 Wall. 
 
 "Blackst. Com. 11, 251; ib. Ill, 227 (18:356). 
 102, 351; ib. IV, 381, 385, 386, 387. 
 
§ 106 CONSTITUTIONAL LIMITATIONS. 75 
 
 ments in England, while they contain a grant of a distinct 
 substantive power to the government, which it would not oth- 
 erwise have possessed, also clearly define and limit that power,, 
 both as to the class of crim'es and offenders subject to prosecu- 
 tion by impeachment, and also as to the punishment that may 
 be inflicted upon conviction.^" The English parliament, at the 
 time of our Eevolution, had been for centuries "the supreme 
 fiourt of the kingdom, not only for the making, but also for the 
 execution of laws, by the trial of great and enormous offenders, 
 whether lords or commons, in the method of parliamentary im- 
 peachment;" and that court possessed the power to impose 
 heavy fines and penalties, and to inflict capital punishment, 
 and exercised that power with an unsparing hand.^° Black- 
 stone states that: "A commoner cannot, however, be impeached 
 before the lords for any capital offense, but only for high mis- 
 demeanors ; a peer may be impeached for any crime. ' ' ^^ But 
 Hallam, after a careful examination of the precedents, states, in 
 the language of a resolution of the commons, "that it is the un- 
 doubted right of the commons, in parliament assembled, to im- 
 peach before the lords in parliament any peer or commoner for 
 treason, or any other crime or misdemeanor; and that the re- 
 fusal of the lords to proceed in parliament upon such impeach- 
 ment is a denial of justice, and a violation of the constitution 
 of parliament." And he adds: "The inadvertent position^ 
 therefore, of Blackstone, that a commoner cannot be impeached 
 for high treason, is not only difficult to be supported upon an- 
 cient authorities, but contrary to the latest determination of 
 the supreme tribunal." ^^ 
 
 § 106. Same — History and character of the procedure in 
 England — The commons the grand inquest of the realm. — ^At 
 an early period in the parliamentary history of England, the 
 commons, as the grand inquest of the realm, took upon them- 
 selves the character of accusers before the lords, of persona 
 charged with treason, or other high crimes and misdem,eanors. 
 
 19 U. S. Const. Art. I, sec. 2, lam's Const. Hist. England, 329, 
 cl. 5; Art. I, sec. 3, cl. 6; Art. I, 464-467, 469, 482, 602-608; Dwar- 
 sec. 3, cl. 7; Art. II, sec. 2, cl. 1; ris on Statutes, 247-254. 
 
 Art. II, sec. 4, cl. 1; Art. Ill, sec. 21 Blackst. Com. IV, 259, 260. 
 
 2, cl. 2. 22Hallam's Ctanst. Hist. Eng- 
 
 20 4 Blackst. Com. IV, 259; Hal- land, 482, 483. 
 
76 FEDERAL PROCEDURE AT LAW. § 106 
 
 against the state; and this act of the commons assuming the 
 invidious ofSce, and, as the representative of the people at 
 large, standing forward as the prosecutors of the highest and 
 mose powerful offenders against the state, forms a remarkable 
 feature in the criminal jurisprudence of England. The asser- 
 tion of this principle, of the duty of the commons to carry up 
 •complaints to the lords of any grevious maladministration, 
 •did, undoubtedly, contribute much toward controlling and re- 
 pressing those acts of injustice and oppression, which ministers 
 of state in more despotic governments, protected by their great 
 Tank and overbearing power, often exercised against those who 
 offended them, and was often the means of bringing to punish- 
 ment those "great apostates of the commonwealth," who^ by 
 their actions or counsels, endeavored to subvert the fundamen- 
 tal laws of the country, and to introduce an arbitrary and tyr- 
 rannical government. At the same time, while ifwas in earlier 
 times absolutely necessary for the preservation of the liberties 
 of the English people, and the safety of the English constitu- 
 tion, that the commons should possess the extraordinary power 
 assumed by them of bringing great offenders to justice, it 
 should have been, in the opinion of England's greatest states- 
 men, more sparingly exercised, and confined to matters not 
 within the cognizance of the ordinary tribunals, such as 
 breaches of high offices of trust, judicial corruption, and the 
 counseling of pernicious and dishonorable measures. 
 
 The first parliamentary impeachments were during the reign 
 of Edward III, and the usual course seems to have been to 
 present a memorial to the king in parliament, stating the of- 
 fenses most injurious to, the public at the time, and praying 
 that the delinquents, without naming them, might meet the 
 punishment of the law. After the petition had received en- 
 •couragment from the crown, the commons exhibited articles of 
 impeachihent, specifying the particular culprits, and followed 
 up the prosecution through its several stages, till finally, on 
 ■conviction, they demanded judgment. During the reign of 
 Richard II, an incident occurred which caused parliamentary 
 impeachments to fall into disuse for a time. The commons 
 with one accord came before the king, prelates and lords, and 
 accused the Earl of Suffolk, late chancellor of England, of sev- 
 eral crimes; and the king, having become desirous of abrogat- 
 
§ 106 CONSTITUTIONAL IJMITATIONS. 7T 
 
 ing parliamentary impeachments, propounded to his judges- 
 the question, whether, since the king can at his pleasure re- 
 move any of his judges and officers, and justify or punish them 
 for their offenses, the lords and commons can, without the will 
 of the king, impeach them in parliament for any crime; and 
 this question, the judges, with the basest prostitution of their 
 judicial character, it is said, answered in the negative, and if 
 any one should do so he is to be punished as a traitor. As a 
 result of that opinion, impeachments lay still, "but only like- 
 a sword in the scabbard, ' ' after the accession of Henry IV, till 
 twenty-eighth Henry VI, when the commons in the case of the- 
 Duke of Suffolk, proceeded irregularly, inasmuch as the ar- 
 ticles of impeachment were directly addressed to the king,.- 
 which gave him an opportunity and a reasonable pretext, of" 
 which he availed himself, to interfere in the judgment, and 
 screen a favorite minister from punishment. Under the reign 
 of the Tudors, the institution fell into disuse, from the prefer- 
 ence given to bills of attainder and pains and penalties by those- 
 sovereigns, when they wished to turn the arm of parliament; 
 against an obnoxious subject. Under the Stuarts, the prac- 
 tice of impeachments was revived, though without frequent ap- 
 plication. There seems no doubt, it is said, that the witan was- 
 the tribunal for the trial of all great delinquents, accused of 
 the heaviest crimes; and under the Plantagenet dynasty, par- 
 liament was looked to as the great remedial court for the re- 
 dress of all grievances, private and public, it being a maxim, 
 of the times that in the high court of parliament alone could a 
 king of England learn when wrongs had been unpunished, and 
 where rights had been delayed. The ordinary courts of law, 
 if sufficiently intelligent, were not sufficiently bold and strong- 
 to redress the subject's injuries, when the powerful ministers 
 or the great officers of the crown were parties, or where the- 
 nobles interfered. The accusation of the commons stood in 
 the place of an indictment, and one of their members was. 
 directed to impeach the delinquents by oral accusation at the 
 bar of the house of lords, in the name of the commons in 
 parliament assembled, and of all the commons of the united 
 kingdom, signifying that articles of impeachment against 
 the accused would be exhibited in due time, and praying that 
 he may be sequestered from his seat or committed. Upon trial 
 
78 FEDERAL PKOCEDURE AT LAW. § 107 
 
 and conviction, the lords could not pronounce judgment until 
 demanded by the commons, and that_ enabled them to spare 
 the accused, even after he had been found guilty.^^ 
 
 § 107. Same — Same — Objects and purposes of parliamentary 
 Impeachments in England— Ministerial responsibility.— The 
 history of parliamentary impeachments in England seem to 
 indicate that their main objects and purposes were: (1) To 
 inflict upon "great and enormous offenders," upon the "great 
 apostates of the commonwealth," whether lords or common- 
 ers, the punishments which the law annexed to their crime 
 against the state.^* (2) To preserve the liberties of the peo- 
 ple and the constitution and laws of England against the 
 encroachm'ents and delinquencies of the crown, the commons 
 in such case holding the ministers of the crown responsible for 
 its executive policy and measures. Ministerial responsibility 
 for the administrative acts of the crown has long been an es- 
 tablished principle of the English constitution; the nature of 
 that constitution requires that such "acts should be issued out 
 in his majesty's name, but, for all that, he is not responsible 
 for them;" according to the constitution of the kingdom, the 
 ministers are accountable for all. Even in an impeachment 
 for treason, "no minister can shelter himself behind the throne 
 by pleading obedience to the orders of his sovereign. He is 
 considered, in the modern theory of the constitution, answer- 
 able for the justice, the honesty, the utility of all measures 
 emanating from the crown, as well as for their legality; and 
 thus the executive administration is rendered subordinate, in 
 all great matters of policy, to the superintendence and virtual 
 control of the two houses of parliament. " ^^ (3) Another ob- 
 ject of parliamentary impeachments was to maintain the hon- 
 esty and efficiency of the administration of public affairs, to 
 punish unfaithful, corrupt and dishonest officers, ministers and 
 judges, and to secure a faithful execution of the laws, and the 
 impartial administration of justice.^" It cannot be overlooked 
 that impeachments were sometimes used for the purposes of 
 
 23 Dwarris on Statutes (2nd lam's Const. Hist. England, 205, 
 Ed.), 248-254. 206. 
 
 2* IV Blackst. Com. 257-261: 25 Hallam's Const. Hist. EnJ 
 
 Dwarris on Statutes, 248; Hal- land, 463, 619, note. 
 
 20 IV Blackst. Com. 257-261. 
 
§ 109 CONSTITUTIONAL! IjIMITATIONS. 79 
 
 religious and political repression, an instance of which was the 
 execution of Archbishop Laud. In his case, the judges having, 
 upon a reference from the lords, given the opinion that the 
 charges contained no legal treason, the commons changed their 
 impeachment into an ordinance for his execution. 
 
 § 108. Same — Objects and purposes of impeachments under 
 the federal constitution. — ^It would seem from the language of 
 the federal constitution that the objects and purposes of im- 
 peachments are, to maintain the efficiency and fidelity of the 
 public service, and to prevent criminals from holding and en- 
 joying any office of honor, trust, or profit under the United 
 States. "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." And "the president, vice-president, and all civil 
 officers of the United States shall be removed from office on 
 impeachment for, and conviction of, treason, bribery or other 
 high crimes and misdemeanors," and in such cases the presi- 
 dent cannot grant reprieves or pardons. Upon conviction, the 
 senate cannot inflict upon the accused the punishment or pen- 
 alty annexed to his crime by law, as in the English parliament ; 
 but the delinquent is, nevertheless, liable and subject to in- 
 dictment, trial, judgment, and punishment, according to law 
 in the ordinary courts of justice.'^ At the time of the adop- 
 tion of the constitution, there was some division of sentiment 
 among the statesmen of that day, as to the power of removal 
 vested in the president, but the existence of the power was 
 soon recognized and established, and acted on in the practice 
 of the government, except as to the judicial officers of the 
 United States which do not, it seems, include territorial judges, 
 and, as a result of the recognition of the power of removal in 
 the executive, impeachments have been infrequent and unnec- 
 essary in the ordinary operations of government.^* 
 
 § 109. Same — Restraint upon the pardoning power of the 
 president. — Lord Danby, upon being required to give in his writ- 
 ten answer to the charges of the commons, pleaded a pardon, 
 secretly obtained from the king, in bar of the prosecution of the 
 
 27 u. S. Const, art. I, sec. 2, cl. 5, 28 Parsons v. United States, 167 
 and sec. 3, els. 6, 7; art. II, sec. 2, U. S. 324, 344 (42:185). 
 cl. 1, and sec. 4, cl. 1. 
 
80 FEDERAL PROCEDURE AT LAW. § 110 
 
 impeachment. It was, however, insisted by the commons that 
 neither a general nor a special pardon from the king could be 
 pleaded in answer to an impeachment by the commons, so as to 
 prevent further proceedings in it, claiming that it was evident 
 that a minister who had influence enough to obtain such an 
 indemnity, might set both houses of parliament at defiance, 
 and the pretended responsibility of the crown's advisers, which 
 was accounted the palladium of the English constitution, would 
 be an idle mockery, if not only punishment could be averted, 
 but inquiry frustrated; but this point was not then decided. ^° 
 It was provided by the Act of Settlement, that no pardon under 
 the great seal of England be pleadable to an impeachment of 
 the commons in parliament ; ^° notwithstanding this statute, it 
 was, after its enactment, determined by the house of lords that 
 the king had a right, after conviction and sentence, to reprieve 
 in eases of impeachment.^^ It was held that the words of the 
 act of settlement conceded, tacitly, the crown's right to grant 
 a reprieve, or pardon after conviction and sentence; and, it 
 ■would seem that to prevent the possibility of such a result, our 
 constitution provides that : the president ' ' shall have power to 
 grant reprieves and pardons for offenses against the United 
 States, except in cases of impeachments. ' ' ^^ 
 
 § 110. Same — Right of trial by common law jury. — The con- 
 stitution declares that : ' ' The trial of all crimes, except in cases 
 of impeachments, shall be by jury ; " ^' yet, inasmuch as the 
 judgment in such cases cannot extend further than to removal 
 from office and disqualification to hold office,^* in no case can 
 a fine, or amercement, or forfeiture, or imprisonment, or capital 
 execution, ever be infiicted on any person as a penalty for the 
 violation of any law of the United Stated, except upon convic- 
 tion by an impartial jury of the state and district wherein the 
 crime shall have been committed.^^ 
 
 29 Hallam's Const. Hist. Eng- concerned in the rebellion of 1715; 
 
 land, 465, 466. Pari. Hist. VII, 283. 
 
 30IV Blackst. Com. 261; 12 & 13 32 u. S. Const, art. II, sec. 2, 
 
 Wm. Ill, c. 2; Hallam's Const, cl. 1. 
 
 Hist. England, 466. 33 u. S. Const, art. Ill, sec. 2, 
 
 31 Hallam's Const. Hist. Eng- cl. 3. 
 
 land, 466, 467. Reprieve actually 34 u. S. Const, art. I, sec. 3, cl. 7. 
 
 granted to three of the six peers 35 u. S. Const. VI art. of 
 
 Amndt. 
 
§ 112 CONSTITUTIONAL LIMITATIONS. 81 
 
 § 111. Due process of law— Maxims of the English constitu- 
 tion and the common law. — The English constitution and the 
 common law, from the early history of that nation, embodied! 
 the spirit and genius, and the essential principles, of free poli- 
 tical institutions, among which must be reckoned due process; 
 of law, although those principles were frequently and at long: 
 periods of time obscured by the perpetual aggressions of the 
 crown and the delinquencies of servile ministers and judges. 
 Among the maxims of the English constitution and the common 
 law, which stood as direct guaranties of civil liberty, were the 
 following:. (1) The government of the English commonwealth 
 is a government restrained and limited by law. (2) The king 
 has no power except that which is given to him and vested in 
 him by law, and the bounds and limits of that power are 
 known. (3) The laws of England do not receive their force 
 from any power communicated by the king to parliament, but 
 such laws are made by, and receive their force from the whole 
 body politic, the whole realm of England. (4) The king's act 
 or grant made contrary to the law is void. (5) Parliament 
 has the right, without let or interruption, to inquire into, and 
 obtain the redress of public grievances. (6) It is the indubit- 
 able right of the people of the kingdom "to be guided and gov- 
 erned by the certain rule of the law," and not by any uncertain 
 or arbitrary form of government; and not to be made subject 
 to any punishment that shall extend to their lives, lands, bod- 
 ies, or goods, other than such as are ordained by the common 
 laws of the land, or the statutes made by their common consent 
 in parliament. (7) The common law of England has always ab- 
 horred the accursed mysteries of a prison-house, and neither 
 admits of torture to extort confession, nor of any penal afflic- 
 tion not warranted by a judicial sentence. (8) The open ad- 
 ministration of justice according to known laws truly inter- 
 preted, and fair construction of evidence.^" 
 
 § 112. Same — Means and methods by which these guaranties 
 were violated. — The guaranties of civil liberty mentioned in 
 the section next preceding were invaded and violated by such 
 means and methods as the following: (1) By proclamations of 
 the king, in which he assumed to modify, alter, change, sus- 
 
 36 Hallam's Const. Hist. England, 93, 127, 128, 132, 133, 134, 138, 189, 
 224, 526. 
 6 
 
82 FEDERAL PROCEDURE AT LAW. § 113 
 
 pend or supersede acts of parliament and the rules and proced- 
 ure of the common law. (2) By warrants, issiied by the spec- 
 ial command of the king, specifying no particular ground of 
 arrest, detention, or commitment. (3) By the procedure, judg- 
 ments, sentences, penalties and punishments of the privy-coun- 
 cil, the star chamber, the "court of the president and council 
 of the north," and the court of high commission, all which 
 were contrary to the rules, principles and procedure of the 
 common law, and a usurpation of the jurisdiction of the com- 
 mon law courts, which were the constitutional judicial tribun- 
 als of the country for the trial of civil causes, and the indict- 
 ment, trial and punishment of criminal offenses, whether aris- 
 ing from a violation of the common law or acts of parliament.^' 
 These abuses of the successive administrations in England were 
 a denial of due process of law, and did more to disturb the 
 domestic tranquility of that country than any other one cause ; 
 and their occurrence in this country is rendered impossible by 
 the limitations contained in the federal constitution. 
 
 § 113. Due process of law secured by constitutional limita- 
 tion upon both federal and state governments. — The constitu- 
 tion secures to the people due process of law against the im- 
 proper action of both the federal and state government; but 
 this result is reached by two separate and distinct amendments 
 to the constitution, the one acting upon and restraining the 
 federal government '* the other acting upon and restraining 
 the state governments.^^ There is (1) a due process of law of 
 the federal government and (2) a due process of law of the 
 state governments, and there is some difference in the rules 
 followed by the federal courts, and applied, respectively, to 
 the acts and operations 6f the two governments; due process 
 of law in the state is regulated by the law of the state,*" while, 
 in determining what is due process of law of the federal gov- 
 ernment, broader principles are applied. ^'^ Due process of law 
 
 37 Hallam's Const. Hist. Eng- io Walker v. Sauvinet, 92 TJ. S. 
 
 land, 122, 123, 124, 125, 220, 222, 90, 93 (23:678). 
 
 241, 255, 256, 257, 258, 259, 260, "Post sees. 110 & 111; Holden 
 
 292, 526. V. Hardy, 169 U. S. 366, 398 
 
 88 u. S. Const. V art. o( Amndt. (42:780). 
 
 sou. S. Const. XIV art. of 
 Amndt. 
 
§ 116 CONSTITUTIONAL LIMITATIONS. 83 
 
 in the state will not be considered in this connection, but will 
 be reserved for attention in the chapter next succeeding. 
 
 § 114. The constitutional provision securing due process of 
 law as against the action of the federal government. — The fifth 
 amendment to the federal constitution declares that: "no per- 
 son shall be * * * deprived of life, liberty or property, 
 without due process of law." This amendment was designed 
 as a limitation upon the federal government, and not upon the 
 state governments,*^ and there was no such limitation upon the 
 states to be found in the federal constitution until the adop- 
 tion of the fourteenth amendment.''^ 
 
 § 115. Same — The inhibition is a restraint on all the depart- 
 ments of the governments. — The constitutional inhibition un- 
 der discussion was intended to secure the individual from the 
 arbitrary exercise of the powers of government, unrestrained 
 by the established principles of private rights and distributive 
 justice;** it is a restraint upon the legislative, executive and 
 judicial departments of the government;*^ and it relates to 
 that class of rights whose protection is peculiarly within the 
 province of the judicial department;*" and, undoubtedly, it is 
 intended that the provision shall be enforced by the courts 
 -when cases involving its operation and effect are brought be- 
 fore them, even as against persons assuming to act under the 
 authority of the government.*' 
 
 § 116. Due process of law defined. — The words, "due process 
 ■of law" are the equivalent of the words, "the law of the land;" 
 and by "the laws of the land" is meant general and public 
 laws which operate equally upon all members of the commun- 
 ity, affecting the rights of all alike.*^ "Due process of law" 
 
 « Ante, sees. 92„ 93. 240 (27:171); Ex parte Milligan, 
 
 43Hol(ien v. Handy, 169 U. S. 4 Wall. 2 (18:281). 
 
 566, 398 (42:780). ^s Murray v. Hoboken Land Co. 
 
 *4The Bank of Columbia v. 18 How. 272 (15:372); Davidson 
 
 Okely, 4 Wheat. 235 (4:559). v. New Orleans, 96 U. S. 97, 108 
 
 ^s Murray v. Hoboken Land Co. (24:616); Janes v. Reynolds, 2 
 
 18 How. 272 (15:372); United Texas, 250; Jones v. Perry, 10 
 
 States V. Lee, 106 U. S. 240 Yerg. (Tenn.) 59; Vanzandt v. 
 
 (27:171). Waddell, 2 Yerg. (Tenn.) 269; 
 
 *6 United States v. Lee, 106 U. S. Walley's Heirs v. Kennedy, 2 Yerg. 
 
 240 (27:171). (Tenn.) 554; Hoke v. Henderson, 
 
 47 United States v. Lee, 106 U. S. 4 Dev. (N. C.) 1; Brown v. Levee 
 
84 FEDERAL PROCEDUEE AT LAW. § 116 
 
 in the federal sense, and in the sense in which those words are 
 used in the fifth amendement to the federal constitution, means 
 that "law of the land" which derives its authority from the 
 legislaive powers conferred upon congress by the constitution 
 of the United States, exercised within the limits therein pre- 
 scribed, and interpreted according to the principles of the 
 common law.*" .The words "due process of law," in judicial 
 proceedings, mean a course of legal proceedings according to 
 those rules and principles which have been established in our 
 system of jurisprudence for the protection and enforcement 
 of private rights. To give such proceedings any validity, there 
 must be a tribunal competent by its constitution — that is, by 
 the law of its creation — to pass upon the subject matter of the 
 suit; and, if that involves merely a determination of the per- 
 sonal liability of the defendant, he must be brought within the 
 jurisdiction by service of process within the state, or his volun- 
 tary appearance. °° By "due process of law" is meant one 
 which, following the forms of law, is appropriate to the case 
 and just to the parties to be affected. It must be pursued in 
 the ordinary mode prescribed by law; it must be adapted to 
 the end to be attained; and wherever it is necessary for the 
 protection of the parties, it must give them an opportunity to 
 be heard respecting the justice of the judgment sought. Thero' 
 can be no proceeding against life, liberty or property which 
 
 Comms. 50 Miss. 468; State v. eral rules whach govern society. 
 
 Staten, 6 Coldw. 234, 244; Green Everything which may pass under 
 
 V. Brigs, 1 Curtis, 311; Ervlne's the form of an enactment is not 
 
 Appeal, 16 Pa. St. 256; Parsons v. therefore to be considered the law 
 
 Russell, 11 Mich. 129; Banning of the land. If this were so, acts 
 
 V. Taylor, 16 Pa. St. 292. of attainder, bills of pains and 
 
 "That the law might extend to penalties, acts of confiscation, acts 
 
 all, it is said per legem terrw, by reversing judgments, and acts di- 
 
 the law of the land" (2 Coke rectly transferring one .man's es- 
 
 Inst. 50) tate to another, legislative judg- 
 
 "By the law of the land is most ments, decrees, and forfeitures, in 
 
 clearly intended the general law; all possible forms, would be the 
 
 a law which hears before it con- law of the land." (Mr. Webster 
 
 demns; which proceeds upon in- in Dartmouth College case, 4 
 
 quiry, and renders judgment only Wheat. 519.) 
 
 after trial. The meaning is, that *» Hurtado v. California, 110 V. 
 
 every citizen shall hold his life, S. 625 (40:1097). 
 liberty, property, and immunities so pennoyer v. Neff, 95 U. S.. 
 
 under the protection of the gen- 714 (24:565). 
 
§ 117 CONSTITUTIONAL LIMITATIONS. 85 
 
 may result in the deprivation of either, without the observance 
 of those general rules established in our system of jurisprud- 
 ence for the security of private rights."^ 
 
 § 117. The federal rule for determining what is "due pro- 
 cess of law." — It is manifest that it was not left to the legisla- 
 tive power to enact any process which it might devise. The 
 constitutional provision securing due process is a restraint on 
 the legislative, as well as the executive and judicial powers 
 of the government, and cannot be so construed as to leave con- 
 gress free to make any process "due process." To ascertain 
 whether any given process is "due process," the court will 
 (1) examine the constitution itself, to see whether the process 
 be in conflict with any of its provisions ; and (2) if not found 
 to be so, it will then look to those settled usages and modes of 
 proceeding existing in the common and statute law of England, 
 before the emigration of our ancestors, and which are shown 
 not to have been unsuited to their civil and political condition 
 by having been acted on by them after the settlement of this 
 country. If the process conforms to these, it is "due process 
 of law. ' ' ^- And it has been accordingly held that, inasmuch 
 as there has been no period, since the establishment of the Eng- 
 lish monarchy, when there has not been, by the law of the land, 
 a summary method for the recovery of debts due to the crown, 
 and especially those due from receivers of the revenues, an act 
 of congress authorizing a warrant to issue, without oath, 
 against a public debtor, for the seizure of his property, was 
 valid; that the warrant was conclusive evidence of the facts 
 recited in it, and that the proceeding was due process of law 
 in such eases.^' A warrant issued by a United States tax col- 
 lector, under authority of an act of congress, authorizing a 
 sale of property under such warrant, to enforce the collection 
 of taxes due the government, being conformable to the con- 
 stitution and the usages of the coromon law, is "due process of 
 law. ' ' °* The rule obtaining in the federal courts, requiring a 
 
 51 Hagar v. Reclamation Dlst. es Murray v. Hoboken Land Co., 
 Ill U. S. 701 (28:569). 18 How. 274 (15:373). 
 
 52 Murray v. Hobolcen Land Co., 54 Springer v. United States, 102 
 18 How. 274 (15:373): Springer U. S. 586 (26:253). 
 
 V. United States, 102 U. S. 586 
 (26:253). 
 
86 FEDERAL PROCEDURE AT LAW. § 119 
 
 resort to the settled usages and modes of proceeding existing in 
 the common and statute law of England before the emigration 
 of our ancestors, is further illustrated by the doctrine of the su- 
 preme court of the United States, as to the necessity of arraign- 
 ment and plea in criminal eases. That court holds, and it de- 
 rives it from the English common law, that "due process of 
 law" requires that a person accused of crime, at least in felony 
 cases, must be arraigned and plead to the indictment, or if he 
 stand mute or refuse to plead, the court must enter a plea of not 
 guilty on his behalf, before his trial can rightfully proceed ; and, 
 unless such arraignment and plea affirmatively appear from the 
 record, a judgment of conviction cannot be sustained.^^ The 
 rule is further illustrated in the determination of the supreme 
 court, that a denial, by act of congress, of the right to bring 
 an action at law to recover duties paid under an alleged ex- 
 cessive valuation of dutiable merchandise, is not depriving the 
 importer of his property without due process of law, placing 
 the decision upon the ground that by the settled usage and 
 proceeding of the English common law there has always been 
 a summary remedy for the collection of the public revenues.'^'' 
 
 § 118. Same — Controlling force of the federal constitution. — 
 In all cases where the federal constitution has declared the 
 requisites of any process or proceeding, that instrument is ab- 
 solutely controlling in the ascertainment and determination 
 of what is ' ' due process of law ; ' ' but, as the provisions of the 
 constitution are written in the language of the common law, it 
 is interpreted in the light of the principles of that system.^' 
 The same rule applies in cases where congress has, in the exer- 
 cise of the powers conferred upon it by the constitution^ pre- 
 scribed the form and requisites of any process or proceeding.^' 
 
 § 119. Same — Same — Decision of administrative officers as 
 to right of foreigners to enter the Unitsd States. — It is an ac- 
 
 55 Grain v. United States, 162 Parks, 93 U. S. 18 (23:787); Par- 
 
 TJ. S. G25 (40:1097). Itinson v. United States, 121 U. S. 
 
 60 Hilton V. Merritt, 110 U. S. 281 (30:959); United States v. Be 
 
 97 (28:83). Walt, 128 U. S. 393 (32:485). 
 
 57 Ex parte Bain, 121 U. S. 1, ss Ekin v. United States, 142 
 
 14 (30:849); Ex parte Wilson, 114 U. S. 651 (35:146); Murray v. 
 
 U. S. 418 (29:89); Mackiu v. HoboUen Land Co., 18 How. 272 
 
 United States, 117 U. S. 348 (15:372); Hilton v. Merritt, 110 
 
 (29:909); Ex parte Lange, 18 U. S. 97 (28:83). 
 Wall. 163 (21:872); Ex parte 
 
§ 119 CONSTITUTIONAL LIMITATIONS. 87 
 
 cepted maxim of international law, that every sovereign nation 
 has the power, as inherent in sovereignty, and essential to self- 
 preservation, to forbid the entrance of foreigners within its 
 dominions, or to admit them only in such cases and upon such 
 conditions as it may see fit to prescribe. In the United States, 
 this power is vested in the national government, to which the 
 constitution has committed the entire control of international 
 relations, in peace as well as in war. It belongs to the politi- 
 cal department of the government, and may be exercised 
 either through treaties made by the president and senate, or 
 through statutes enacted by congress, upon whom the consti- 
 tution has conferred power to regulate commerce with foreign 
 nations, including the entrance of ships, the importation of 
 goods and the bringing of persons into the ports of the United • 
 States ; to establish a uniform rule of naturalization ; to declare 
 war, and to provide and maintain armies and navies; and to 
 make all laws which may be necessary and proper for carry- 
 ing into effect those powers and all other powers vested by 
 the constitution in the government of the United States, or in 
 any department or officer thereof. 
 
 The supervision of the admission of aliens into the United 
 States may be entrusted by congress either to the department 
 of state, having the general management of foreign relations, 
 or to the department of the treasury, charged with the enforce- 
 ment of the laws regulating foreign commerce; and congress 
 has often passed acts forbidding the immigration of particular 
 classes of foreigners, and has committed the execution of these 
 a<;ts to the secretary of the treasury, to collectors of customs, 
 and to inspectors acting under their authority. 
 
 And congress may, if it sees fit, authorize the courts to in- 
 vestigate and ascertain the facts on which the right to land 
 depends. But, on the other hand, the final determination of 
 those facts may be intrusted by congress to executive officers ; 
 and in such a case, as in all others, in which a statute gives a 
 discretionary power to an officer, to be exercised by him upon 
 his own opinion of certain facts, he is made the sole and ex- 
 clusive judge of the existence of those facts, and no other tri- 
 bunal, unless expressly authorized by law to do so, is at liberty 
 to re-examine or controvert the sufficiency of the evidence on 
 which he acted. It is not within the province of the judiciary 
 to order that foreigners who have never been naturalized, nor 
 
8S fedke.Uj peoceduee at law. § 121 
 
 acquired any domicile or residence within tlie United States, 
 nor even been admitted into the country pursuant to law, shall 
 be permitted to enter, in opposition to the constitutional and 
 lawful measures of the legislative and executive branches of 
 the national government. As to such persons, the decisions of 
 executive or administrative officers, acting within the powers 
 expressly conferred upon them by congress, are due process of 
 law.'' 
 
 § 120. The "due process of law" of the English constitution 
 embodied in the amendments to the federal constitution — The 
 great and fundamental principles of the common law and the 
 English constitution, and which in fact constitute the "due 
 process of law" of the English nation, securing the rights of 
 life, liberty and property of the English people, are embodied 
 in the first ten amendments to the federal constitution, and 
 constitute to a very large extent the "due process of law" of 
 the federal government, and stand as permanent limitations and 
 restraints upon the exercise of federal power. Hence it is, that 
 the substantive principles of what is called "due process of 
 law," are largely defined by, and embraced in, the provisions 
 of the federal constitution, and are, therefore, not subject to 
 change by federal legislation. The first ten amendments are, 
 in the federal sense, "due process of law;" true, indeed, they 
 do not embrace all that is comprehended in the subject, but 
 they do embrace the great and controlling principles."" 
 
 § 121. Unreasonable search and seizure. — The fourth amend- 
 ment to the federal constitution is: "The right of the people 
 to be secure in their persons, houses, papers and effects shall 
 not be violated, and no warrants shall issue, but upon probable 
 cause, supported by oath or affirmation, and particularly de- 
 
 eoEkin v. United States, 142 116 V. S. 616, 641 (29:746); Ex 
 
 U. S. 651 (35:1146). parte Bain, 121 U. S. 1, 14 
 
 60 Entick V. Carrington, 19 How- (30:849); Ex parte Wilson, 114 
 
 ell, St. Tr. 1029; Money V. Leach, U. S. 418 (29:89); Mackin v. 
 
 3 Burr. 1743; Semayne's Case, 5 United States, 117 U. S. 348 
 
 Coke, 91; Wilkes' Case, 2 Wils. (29:909); Parkinson v. United 
 
 151, s. c. 19 St. Tr. 1405; Story States, 121 U. S. 281 (30:959); 
 
 on Const, sees. 1901, 1902 ; 2 May's Brown v. Walker, 161 U. S. 591 
 
 Constitutional History of England, (40:819); Bram v. United States, 
 
 1-47; 15 Hansard's Pari. Hist. 168 U. S. 532, 573 (42:568). 
 1398, 1418; Boyd v. United States, 
 
§ 122 CONSTITUTIONAL LIMITATIONS; 89 
 
 scribing the place to be searched, and the persons or things 
 to be seized." This is an affirmance and an adoption into our 
 fundamental law of a great constitutional doctrine of the Eng- 
 lish common law^ the flagrant violations of which by the issu- 
 ance of general warrants, both in England and in the Ameri- 
 can colonies, just prior to the revolution, no doubt suggested 
 to the founders of our government the propriety and import- 
 ance of the amendment."^ It does not require actual entry 
 upon premises and search for, and seizure of, papers to con- 
 stitute an unreasonable search and seizure within the meaning 
 of this amendment. A compulsory production of a party's 
 private books and papers to be used against him or his property 
 in a criminal or penal proceeding, or for forfeiture, is within 
 the spirit and meaning of the amendment. It is equivalent to 
 a compulsory production of papers to make the non-production 
 of them a confession of the allegations which it is pretended 
 they will prove. "^ The search for and seizure of stolen or for- 
 feited goods, or goods liable to duties and concealed to avoid 
 the payment thereof, are lawful. The seizure of stolen prop- 
 erty is authorized by the common law ; and the seizure of goods 
 forfeited for a breach of the revenue laws, or concealed to avoid 
 the duties payable on them has been authorized by English stat- 
 utes for at least two centuries past; and the like seizures have 
 been authorized by the revenue laws of the United States from 
 the commencement of the government, and such seizures are 
 not prohibited by the constitution, when made upon warrants 
 lawfully issued. Laws which provide for the search and seiz- 
 ure of articles and things which it is unlawful for a person 
 to have in his possession for the purpose of issue, use or dis- 
 position, such as counterfeit coin, lottery tickets, implements 
 of gambling and the like, are not within the constitutional in- 
 hibition."^ 
 
 § 122. Same — Requisites of lawful search. — In order to a 
 lawful search and seizure, the following are requisite: (1) A 
 
 61 story on Const. (2 Ed.), sees. U. S. 616, 641 (29:746); In Re 
 
 1901, 1902; Cooley's Const. Llm. PaciHc Ry. Commission, 32 Fed. 
 
 (2 Ed.) 367-377; Boyd v. United 250; United States v. Nat. Lead 
 
 ■States, 116 U. S. 616,641 (29:746); Co., 75 Fed. 97. 
 
 Hallam's Const. Hist. England, "sjBoyd v. United States, 116 
 
 220, 222, 241. CJ. S. 616, 641 (29:746). 
 
 »2Boyd V. United States, 116 
 
90 FEDERAL PROCEDURE AT lAW. § 123 
 
 warrant must be issued by a judicial officer. (2) No warrant 
 shall issue except upon probable cause. (3) The application! 
 for the issuance of the warrant must be supported by oath or 
 affirmation that a crime has been committed. (4) The warrant 
 must particularly describe the place to be searched, and the 
 .persons or things to be seized. (5) No warrant can be issued 
 except in cases expressly authorized by law. (6) The warrant 
 should be directed to the sheriff or other proper officer, and 
 not to a private person. (7) The warrant must be made re- 
 turnable before a judicial officer, who has jurisdiction to in- 
 quire into the crime charged. (8) The warrant is not allowed 
 for the purpose of obtaining evidence of an intended crime, 
 but of a crime already committed. (9) No warrant is allowed 
 to be issued for the purpose of seizing and taking from the 
 possession of a person his papers to be used as evidence to con- 
 vict him of a crime or to forfeit his goods for an offense against 
 the law.«* 
 
 § 123. No person compelled to be a witness against himself 
 ill a criminal case. — The fifth amendment to the federal con- 
 stitution declares that: "No person shall ije * * * com- 
 pelled in any criminal case to be a witness against himself."' 
 This provision, like the one contained in the fourth amend- 
 ment against "unreasonable searches and seizures," is but the 
 adoption, into the fundamental law, of a great constitutional 
 doctrine of the common law. Both the amendments, and the 
 principles embodied in them, relate to the personal security, 
 and the personal liberty of the citizen, and the right of private 
 property, and are closely related to, and mutually throw light 
 on and aid in the interpretation of each other. When the thing 
 forbidden in the fifth amendment, namely, compelling a person 
 to be a witness against himself in a criminal ease, is the object 
 of a search and seizure of his private papers, it is an "unrea- 
 
 64 U. S. Const. IV & V Amend- McGlenchy v. Barrows, 41 Me. 74 ; 
 
 ments; Cooley's Const. Lim. ch. X, Ashley v. Peterson, 25 Wis. 621; 
 
 pp. 367, 375; Hale, P. C, 142, 150, Commonwealth v. Cratty, 10 AI- 
 
 151; Archbold Cr. Law, 143, 147; len, 403; Bell v. Clapp, 10 Johns. 
 
 Bishop's Cr. Proc. sees. 716, 719; 263; Hlbbard v. People, 4 Mich. 
 
 Commonwealth v. Lottery Tickets, 126; Fisher v. McGirr, 1 Gray, 1; 
 
 5 Cush. 369; Stone v. Dana, 5 Met. Boyd v. United States, 116 U. S. 
 
 98; Sandford v. Nichols, 13 Mass. 616, 641 (29:746). 
 286; Allen v. Staples, 6 Gray, 491; 
 
§ 124 CONSTITUTIONAL LIMITATIONS. 91 
 
 sonable search and seizure" within the meaning of the fourth 
 amendment. And the seizure or compulsory production of a 
 person's private books and papers to be used as evidence in a 
 criminal case is equivalent to compelling him to be a witness, 
 against himself; and a proceeding to forfeit a person's property 
 for an offense against the law, though civil in form, and 
 whether in rem or in personam, is a criminal case within the 
 meaning of that part of the fifth amendment which declares 
 that "no person shall be compelled in any criminal case to be 
 a witness against himself. ' ' "^ 
 
 § 124. Same — Extent and application of the principle. — 
 Constitutional provisions for the security of persons and prop- 
 erty are liberally construed, and all effort to restrict the opera- 
 tion of the provision under discussion has been repudiated by 
 the supreme court from the earliest period of its history.'^ Both 
 at common law and under the constitution, the doctrine estab- 
 lished is : That no person shall be compelled, in any proceeding, 
 to give any testimony,' or make any disclosures, which may 
 tend to criminate him, or subject him to a criminal accusation, 
 or prosecution, or to convict him of any crime, or which may 
 tend to subject him to any fine, penalty, punishment or for- 
 feiture ; and the exemption extends, not only to the main crim- 
 inating facts, but also to every incidental fact or circumstance 
 which might form a link in a chain of evidence, which, if com- 
 plete, would establish his liability to a criminal accusation, or 
 prosecution, or conviction, or fine, penalty, punishment, or for- 
 feiture. And the exemptionjrotects the person from being 
 compelled to disclose the circumstances of his offense, the 
 sources from which, or the means by which, evidence of its com- 
 mission, or of his connection with it, may be obtained, or made 
 efijeetual for his conviction, without using his answers as di- 
 rect admissions against him. For all practical purposes, such 
 disclosures would have the effect to furnish evidence against 
 the party making them. They might furnish the only means 
 of discovering the names of those who could give evidence 
 
 65 Boyd -v. United States, 116 «6 Boyd v. United States, llff 
 U. S. 616, 641 (29:746); Lees v. U. S. 616, 641 (29:148); Counsel- 
 United States, 150 U. S. 476, 483 man v. Hitchcock, 142 U. S. 547, 
 (37:1150); Counselman v. Hitch- 586 (35:1110); I Burr's Trial, 
 cock, 142 U. S. 547, 586 (35:1110). 244. 
 
92 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 125 
 
 eoneerning the transaction, the instrument by which a crime 
 was perpetrated, or even the corpus delicti itself. Both the 
 reason upon which the rule is founded, and the terms in which 
 it is expressed, forbid that it should be limited to confessions 
 of guilt, or statements which may be proved in subsequent 
 prosecutions, as admissions of facts sought to be established 
 therein." 
 
 § 125. Same — Meaning of the words, "any criminal case." — 
 The privilege secured by the constitutional provision is not 
 limited to a criminal prosecution against the witness. The 
 provision is broadly construed in favor of the right it is in- 
 tended to secure. Its object is to insure, that no person shall 
 be compelled, when acting as a witness in any investigation, to 
 ,give testimony, or make disclosures, which might tend to show 
 that he himself had committed a crime, or was guilty of an of- 
 fense against the law for which his property might be for- 
 feited. The privilege is limited to criminal matters, but it is 
 as broad as the mischief against which it seeks to guard. An 
 
 6' Counselman v. Hitchcock, 142 
 U. S. 547, 586 (35:1110); Boyd v. 
 United States, 116 U. S. 616, 641 
 (29:748); Lees v. United States, 
 150 U. S. 476, 483 (37:1150); I 
 Burr's Trial, 244; Btnery's Case, 
 107 Mass. 172, 181; State v. Now- 
 ell, 58 N. H. 314; Cullen v. Com- 
 monwealth, 24 Gratt. 624; Temple 
 V. Commonwealth, 75 Va. 892; 
 People V. Mather, 4 Wend. 229; 
 Southard v. Rexford, 6 Cow. 255; 
 Rex V. Slaney, 5 Car. & P. 213; 
 Gates V. Hardacre, 3 Taunt. 424; 
 Maloney v. Barkley, 3 Campb. 
 210; Sir John Friend's Case, 13 
 How. St. Tr. 16; Earl of Maccles- 
 field's Case, 16 How. St. Trials, 
 767; Wigram on Discov. 61, 63; 
 Hare on Discov. 131, 156; 2 Dan- 
 iell. Chancery Pleading & Prac. 
 (1st London Ed.) 45, 55; United 
 States V. Saline Banlj, 1 Pet. 100 
 <7:69); Leggett v. Postley, 2 
 Paige, Chan. 599; Livingston v. 
 Harris, '3 Paige, Chan. 528; Taylor 
 
 V. Bruen, 2 Barb. Chan. 302; Un- 
 ion Bank v. Barker, 3 Barb. 
 Chan. 358; Entick v. Carrington, 
 19 How. St. Trials, 1029. 
 
 "The common law maxim (thus 
 affirmed by the bill of rights) 
 that no one shall be compelled to 
 testify to his own criminality, has 
 been understood to mean, not 
 only that the subject shall not be 
 compelled to disclose his guilt 
 upon a trial of a criminal pro- 
 ceeding against himself, but also 
 that he shall not be required to 
 disclose, on the trial of issues be- 
 tween others, facts that can be 
 used against him as admissions 
 tending to prove his guilt of any 
 crime or offense, of which he may 
 then or afterwards be charged, or 
 the sources from which, or the 
 means by which, evidence of its 
 commission, or his connection 
 with it, may be obtained." (State 
 V. Nowell, 58 N. H. 314). 
 
§ 126 CONSTITUTIONAL LIMITATIONS. 93 
 
 investigation before a grand jury to inquire and ascertain 
 whether there has been a criminal offense committed, is a 
 "criminal case," within the meaning and intent of the provi- 
 sion, and a witness testifying before the grand jury, who is 
 apprehensive that his answers may tend to criminate him, may 
 claim the privilege.** And a proceeding to forfeit a person's 
 goods, for an offense against the law, whether in rem or in 
 personam, though civil in form, is a "criminal case" within the 
 meaning of the provision."' 
 
 § 126. Same — Same— Discovery in a suit in chancery. — The 
 nature and character of the investigation in which it is at- 
 tempted to compel a person to give testimony, or make dis- 
 closures which will tend to criminate him, or subject him to a 
 penalty, or forfeiture, are wholly immaterial ; whatever may be 
 the form of the proceeding, the constitutional privilege may 
 be claimed. And when a bill is filed in chancery for discovery, 
 or relief and discovery, the constitutional provision interposes 
 to protect the defendant from giving any discovery, whether 
 by the statement of facts within his knowledge, or the produc- 
 tion of his private books and papers, which may subject him 
 to a criminal accusation, or prosecution, or tend to convict him 
 of any crime, or tend to subject him to a penalty, or the for- 
 feiture of his property.'"' The first congress of the United 
 States, whose members well imderstood the limitations estab- 
 lished by the English chancery upon the right of discovery, and 
 that such right was restricted within the rule of the common 
 law which secured witnesses against self-accusation and self- 
 crimination, embodied a provision in the original judiciary act, 
 which may be accepted as a contemporaneous exposition of the 
 constitutional amendments submitted at the same siession, 
 showing that the intention was to extend its operation to every 
 possible character of proceeding and investigation.''^ The stat- 
 es Counselman V. Hitchcock, 142 Paige, Chan. 599; Livingston v. 
 U. S. 547, 58G (35:1110). Harris, 3 Paige, Chan. 528; Taylor 
 
 ' 60 Boyd V. United States, 116 U. v. Bruen, 2 Barb. Chan. 302; 
 S. 616, 641 (29:748); Lees v. Union Bank v. Barker, 3 Barb. 
 United States, 150 U. S. 476, 483 Chan. 358; United States v. Sal- 
 (37:1150). , ine Bank, 1 Pet. 100; 2 Daniell 
 
 70 Boyd V. United States, 116 U. (1st Lond. Ed.) 45, 55; People v. 
 S. 616, 641 (29:748); Wigram on Mather, 4 "Wend. 229. 
 Discov. 61, 63; Hare on Diseov. "Boyd v. United States, 116 U, 
 131, 156; Leggett v. Postley, 2 S. 616, 641 (29:748). 
 
S4 FEDEn.VL PEOCEDUEB AT LA.W. § 127 
 
 utory provision is as follows: "All the said courts of the United 
 States shall have power in the trial of aetiions at law, on motion 
 and due notice thereof being given, to require the parties to 
 produce books or writings in their possession or power, which 
 contain evidence pertinent to the issue, in cases and under cir- 
 cumstances where they might be compelled to produce the 
 same by the ordinary rules of proceeding in chancery; and if 
 a plaintiff shall fail to comply with such order to produce 
 books or writings, it shall be lawful for the courts, respectively, 
 on motion, to give the like judgment for the defendant as in 
 cases of nonsuit; and if a defendant shall fail to comply with 
 such order to produce books or writings, it shall be lawful for 
 the courts, respectively, on motion as aforesaid, to give judg- 
 ment against him or her by default." ^^ 
 
 § 127. Same — Same — Statutes protecting witnesses from 
 prosecution. — In some of the states, where there are like con- 
 stitutional provisions protecting persons from making dis- 
 closures tending to criminate themselves, attempts have been 
 made by legislation to take away the constitutional privilege, 
 by declaring that there shall be no future criminal prosecution 
 against witnesses for the matters concerning which they may 
 have testified, or at least enabling them to plead the statute in 
 absolute bar of such prosecution." But in the federal courts, 
 a statute which leaves the party or witness subject to prosecu- 
 tion after he has made the criminating disclosures, or given the 
 criminating evidence, can not have the effect of taking away 
 the privilege conferred by the constitution of the United States. 
 In view of the constitutional provision, a statutory enactment, 
 to be valid, must afford absolute immunity against future pros- 
 ecution for the oft'ense to which the testimony and disclosures 
 relate; and section 860 of the United States Revised statutes 
 does not. supply a complete protection from all the perils 
 against which the constitutional prohibition was designed to 
 guard, and is not a full substitute for that prohibition.''* 
 
 72 1 U. S. Stat, at L. ch. 20, pp. 107 Mass. 172; Cullen v. Common- 
 73, 79, Section 15. wealth, 24 Gratt. G24; Temple v. 
 
 73 State V. Quarles, 13 Ark. 307; Commonwealth,, 75 Va. 892; State 
 Hlgdon V. Heard, 14 Ga. 255; Ex v. Nowell, 58 N. H. 314; People v. 
 parte Rowe, 7 Cal. 184; Wilkius Sharp, 107 N. Y. 427; Bedgood v. 
 V. Malone, 14 Ind. 153; People v. State, 115 Ind. 275. 
 
 Kelly, 24 N. Y. 74; Emery's Case, ^icounselman v. Hitchcock, 142 
 
§ 128 CONSTITUTIONAL LIMITATIONS. 95 
 
 § 128. Same — Same — Act in relation to testimony before the 
 Interstate Commerce Commission and in prosecutions under the 
 Anti-trust Act. — The act of congress in relation to testimony 
 before the Interstate Commerce Commission, approved Febru- 
 ary 11, 1893, declares: "That no person shall be excused from 
 attending and testifying or from producing books, papers, tar- 
 iffs, contracts, agreements and documents before the Interstate 
 Commerce Commission, or in obedience to the subpoena of the 
 commission, whether such subpoena be signed or issued by one 
 or more commissioners, or in any cause or proceeding, criminal 
 or otherwise, based upon or growing out of any alleged viola- 
 tion of the act of congress^ entitled 'An act to regulate com- 
 merce,' approved February fourth, eighteen hundred and 
 -eighty-seven, or of any amendment thereof, oti the ground or 
 for the reason that the testimony or evidence, documentary or 
 otherwise, required of him, may tend to criminate him or sub- 
 ject him to a penalty or forfeiture. But no person shall be 
 prosecuted or subjected to any penalty or forfeiture for or on 
 account of any transaction, matter or thing, concerning which 
 he may testify, or produce evidence, documentary or otherwise, 
 before saiid commission, or in obedience to its subpoena, or the 
 ■Subpoena of either of them, or in any such case or proceeding: 
 Provided, That no person so testifying shall be exempt from 
 prosecution or punishment for perjury committed in so testi- 
 fying. 
 
 "Any person who shall neglect or refuse to attend and tes- 
 tify, or to answer any lawful inquiry, or to produce books, pa- 
 pers, tariffs, contracts, agreements and documents, if in his 
 power to do so, in obedience to the subpoena or lawful re- 
 quirement of the commission, shall be guilty of an offense, and 
 
 TJ. S. 574, 586 (35:1110); Boyd v. estate, in any court of the United. 
 United States, 116 U. S. 616, 641 States, in anj criminal proceed- 
 (29:748). Sec. 860 U. S. R. S. is ing, or for the enforcement of any 
 as follows: "No pleading of a penalty or forfeiture: Provided, 
 party, nor any discovery or evi- That this section shall not exempt 
 ■dence obtained from a party or any party or witness from prose- 
 witness by means of a judicial cution and punishment for per- 
 proceeding in this or any foreign jury committed in discovering or 
 -country, shall be given in evi- testifying as aforesaid." And see 
 dence, or in any manner used also, 15 U. S. Stat, at L. chap. 13, 
 against him or his property or sec. 1. 
 
96 federaij procedure at law. § 129 
 
 upon conviction thereof by a court of competent jurisdiction, 
 shall be punished by fine not less than one hundred dollars nor 
 more than five thousand dollars, or by imprisonment for not 
 more than one year, or by both such fine and imprisonment. ' ' ''^ 
 And by act of February 25, 1903, like immunity is given to 
 witnesses testifying or producing evidence 'in suits, proceedings 
 or prosecutions under-the interstate commerce, anti-trust, and 
 other acts of congress.'^' It has been held by the supreme 
 court that, while the constitutional amendment protecting per- 
 sons from being compelled to be a witness against themselves 
 in criminal matters is justly regarded as one of the most valu- 
 able prerogatives of the citizen, yet its object is fully met by 
 the immunity given in these statutes, and witnesses subpoenaed 
 under them are compellable to answer,'^ or produce the papers 
 called for, as the case may 'beJ^ This legislation protects wit- 
 nesses from siieh use of their testimony as will result in their 
 punishment for crime, or forfeiture of their estates; testimony 
 given, or papers produced under the immunity secured by the 
 statute presents scarcely a suggestion of an unreasonable 
 search or seizure.'''' 
 
 § 129. The maxim Nemo tenetur seipsum accusare — Its his- 
 tory. — The maxim Xemo tenetur seipsum accusare had its or- 
 igin in a protest against the inquisitorial and manifestly un- 
 just methods of interrogating accused persons, which has long 
 obtained in the coiltinental system, and, until the revolution in 
 1688, which resulted in the expulsion of the Stuarts from the 
 British throne, and the erection of additional barriers for the 
 protection of the English people against the exercise of arbi- 
 trary power, was not uncommon, even in England. While the 
 admissions or confessions of a person charged with crime, 
 
 " 27 U. S. Stat, at L. chap. 83, mission v. Baird, et al, 194 U. S. 
 
 pp. 443, 444. 25-47 (48:860); Hale v. Henkel, 
 
 70 32 U. S. Stat, at L. ch. 755, p. 201 U. S. 43, 77 (50:652); Nelson 
 
 904; Hale v. Henkel, 201 U. S. 43, v. United States, 201 U. S. 92 
 
 77 (50:652). (50:673). 
 
 T7 Brown v. Walker, 161 TJ. S. "' Interstate Commerce Com- 
 
 591 (40:819); Hale v. Henkel, 201 mission v. Baird et al, 194 U. S. 
 
 U. S. 43, 77 (50:652); Nelson v. 25-47 (48:860); Hale v. Henkel, 
 
 United States, 201 U. S. 92 (50: 201 U. S. 43, 77 (50:652); Nelson 
 
 673). V. United States, 201 U. S. 92 
 
 78 Interstate Commerce Com- (50:673). 
 
§ 129 CONSTITL'TIONAL LIMITATIONS. 97 
 
 when voluntarily and freely made, have always ranked high 
 in the scale of incriminating evidence, and such admissions 
 and ^confessions, when so voluntarily and freely made, have 
 always been held admissible in evidence against the accused^ 
 even in capital crimes, yet, the experience of mankind in the 
 administration of criminal justice has shown that if an ac- 
 cused person be asked to explain his apparent connection with 
 a crime iinder investigation, the questions put to him do witb 
 the greatest ease and facility assume an inquisitorial charac- 
 ter, and there is great temptation on the part of his interlocutor 
 to press him unduly, to browbeat him if he be timid or reluct- 
 ant, to push him into a corner, and to entrap him into fatal 
 contradictions, and these tendencies made the system so odi- 
 ous as to give rise to a demand for its total abolition. The 
 change in the English criminal procedure in that particular 
 seems to be founded upon no statute and no judicial opinion, 
 but upon a general silent acquiescence of the eourts in a popu- 
 lar demand. But, however adopted, it has become firmly em- 
 bedded in English, as well as in American jurisprudence. So 
 deeply did the iniquities of the ancient system impress them- 
 selves upon the minds of the American colonists that the states, 
 with one accord, made the denial of the right to question an 
 accused person a part of their fundamental law, so that a 
 maxim which in England was a mere ride of evidence became 
 clothed in this country with the impregnability of a constitu- 
 tional inhibition.*" 
 
 80 Brown v. Walker, 161 U. S. It flows like a mighty current of 
 
 591, 638 (40:819). life-blood through the heart of 
 
 It would seem that no principle the nation. But it is suggested 
 is more firmly fixed in English by a high authority that this 
 and American civilization and ju- principle should be abandoned, 
 risprudence, than the principle XXXIX Am. Law Rev. No. 4, 599- 
 that no person "shall be com- 601). It may be readily con- 
 pelled in any criminal case to be ceded that the Roman Civil law 
 a witness against himself." If is the "finest system of written 
 constitutional provisions be evi- reason in the world," and a com- 
 dence of national sentiment, then parative study of the civil and 
 this principle is written upon the common law would lead to an en- 
 hearts of the American people; richment of our jurisprudence; 
 it is found not only in the federal but it may be safely affirmed that 
 constitution, but in the constitu- the examination and cross-exam- 
 tion of every state in the union, ination of persons accused of 
 
 7 
 
98 FEDERAL PROCEDURE AT LAW. § 130 
 
 § 130. Same — Test of admissibility of confessions. — ^In crim- 
 inal trials, in the courts of the Un,ited States, whenever a 
 question arises whether a confessioii is incompetent because 
 not voluntary, the issue is controlled by that portion of the 
 fifth amendment to the constitution, commanding, that no per- 
 son "shall be compelled in any criminal case to be a witness 
 against himself. ' ' This generic language of the amendment is 
 but a crystalization of the doctrine of the common law as to 
 confessions, well settled when the amendment was adopted, and 
 in its application it is necessary to resort to the rules of the 
 common law upon the subject, as expounded and formulated 
 by the text writers and adjudicated cases. There can be no 
 doubt that long prior to the Amercian revolution and the or- 
 ganization of the federal government, the doctrine, that no per- 
 son could be compelled to accuse himself of crime or testify 
 against himself in a criminal case, had reached its full devel- 
 opment in the common law, and was considered as resting on 
 the law of nature, and was firmly imbedded in that System as 
 one of its great and distinguishing attributes; and it was the 
 purpose of the fourth and fifth amendments to perpetuate 
 that great doctrine in our institutions, in the fullness of its 
 integrity, free from the possibilities of future legislative 
 change. 
 
 But whilst the constitution perpetuates the principle, it does 
 not undertake to' furnish a rule by which to determine what are 
 voluntary confessions, and what are involuntary confessions; 
 this, as above indicated, must be determined by a resort to the 
 rules of the common law upon the subject, as formulated in the 
 manner above stated. 
 
 It is clear that, in determining in any given case whether a 
 confession is voluntary, and whether the proper foundation 
 has been laid for its admission in evidence against the accused, 
 is, not how far the confession tends to prove his guilt; such 
 confession having been offered in evidence as a confession, 
 and being admissible on that ground only, a consideration of 
 its evidential weight and value cannot arise upon the issue of 
 its admissibility. If, in the appellate court, the confession is 
 found to have been illegally admitted in evidence, reversible 
 
 crime has been the instrument of other contrivance invented by the 
 ■more judicial murders than any ingenuity of man. 
 
§ 131 CONSTITUTIONAL LIMITATIONS. 99 
 
 error will result; because the prosecution cannot, on the one 
 hand offer evidence to prove guilt, and which by the very offer 
 is vouched for as tending to that end, and on the other hand for 
 the purpose of avoiding the consequences of the error, caused 
 by its wrongful admission, be heard to assert that the matter 
 offered as a confession was not prejudicial because it did not 
 tend to prove the guilt of the accused. 
 
 The true test of the admissibility of a confession is, that it 
 is made freely, voluntarily, and without compulsion or induce- 
 ment of any sort. In order to render a statement admissible, 
 the proof must be sufficient to establish the fact, that the mak- 
 ing of it was voluntarily ; that is to say, that from causes which 
 the law treats as legally sufficient to engender in the minds of 
 the accused hope or fear in respect to the crime charged, the 
 accused was not involuntarily impelled to make a statement, 
 when but for the improper influences he would have remained 
 silent. "But a confession in order to be admissible must be 
 free and voluntary; that is, must not be extracted by any sort 
 of threats or violence, nor obtained by any direct or implied 
 promises, however slight, nor by the exertion of any improper 
 influence. A confession can never be received in evidence 
 where the prisoner has been influenced by any threat or prom- 
 ise; for the law cannot measure the force of the influence used, 
 or decide upon its effect upon the mind of the prisoner, and 
 therefore excludes the declaration if any degree of influence has 
 been exerted." And "the rule excludes not only direct con- 
 fessions, but any other declaration tending to implicate the 
 prisoner in the crime charged, even though, in its terms, it is 
 an accusation of another, or a refusal to confess." *^ 
 
 § 131. Fourth and fifth amendments violated by federal leg 
 islation. — Judge Cooley, in his "Constitutional Limitations," 
 after referring to the struggle in England, just before our 
 revolution, for the preservation of the common-law guaranties 
 of personal security and civil liberty, approaches the discussion 
 of the fourth amendment with these words: "All these matters 
 are now a long way in the past; but it has not been deemed un- 
 wise to repeat in the state constitutions, as well as in the consti- 
 
 si Bram v. United States, 168 V States, 162 U. S. 613, 624 (40: 
 S. 532, 573 (42:568) and authori- 1090. 
 ties cited; Wilson v. United 
 
100 FEDERAL PROCEDUEE AT LAW. § 131 
 
 tution of the United States, the principles already settled in 
 the common law upon this vital point in civil liberty."'^ If 
 there was ever any doiibt as to the wisdom of embodying in 
 the federal constitution the great common-law principles of 
 civil liberty, that doubt has been dispelled by a decision of the 
 United States supreme court, announced in 1885, and since the 
 publication of the fourth edition of Judge Cooley's work, hold- 
 ing void certain federal legislation, as being in violation of the 
 fourth and fifth amendments, and which Justice Bradley char- 
 acterized as "abhorrent to the instincts" of both the English 
 and American people.*^ The purposes of that legislation were 
 to prevent and detect frauds upon the revenue, and to impose 
 penalties and forfeitures upon the offenders, and authorized 
 the district judges whenever it should appear to their satisfac- 
 tion by affidavit, that a fraud upon the revenue had been com- 
 mitted or attempted by persons interested or engaged in the 
 importation of merchandise, to issue warrants to the marshals 
 or fiscal officers of the government, directing such officers or 
 their agents and assistants to enter any place or premises where 
 any invoices, books or papers relating to such merchandise or 
 fraud were deposited, and to seize and carry away the same, to 
 be inspected and used as evidence by the officers of the govern- 
 ment in prosecuting the offenders. When those acts had been 
 in force about five years, the attention of congress was called 
 to their harsh and objectionable features, and an act was then 
 passed providing that: No answer or other pleading of any 
 party, and no discovery, or evidence obtained by means of any 
 judicial proceeding from any party or witness, shall be given 
 in evidence, or used against such party or witness, or his prop- 
 erty or estate, in respect to any crime, or for the enforcement 
 of any penalty or forfeiture, by reason of any act or omission 
 of such party or witness.** 
 
 The act last mentioned had the effect to repeal those parts of 
 the former acts which had afforded the officers of the govern- 
 ment the convenient method, by warrants, of obtaining evi- 
 
 82 Cbnstitational Limitations 187; Boyd v. United States, 116 
 
 (4th, B<J.) ch. X. pp. 371, 372. TJ. S. 616, 641 (29:746); Counsel- 
 
 8?12 U. S. Stat, at L. ch. 76, man v. Hitchcock, 142 U. S. 547, 
 
 sec. 7, p. 740; 14 U. S. Stat, at L. 586 (35:1110). 
 
 ch. 188, sec. 2, p. 547; 18 U. S. "is u. S. Stat. L. ch. 13, p. 37. 
 Stat, at L. ch. 391, sec. 5, p. 
 
§ 132 CONSTITUTIONAL LIMITATIONS. 101 
 
 denee in suits for penalties and forfeitures against violators of 
 the revenue laws;*' and in a subsequent act revising the laws 
 upon the subject of revenue frauds and prosecutions therefor, 
 it was provided that: In proceedings for forfeitures and penal- 
 ties under the act, the court upon the application of the dis- 
 trict attorney, should make" an order requiring the defendant 
 or claimant to produce in evidence any book, invoice, or paper 
 belonging to or under his control, and which would in the be- 
 lief of the district attorney tend to prove any allegation made 
 by the United States ; and if the defendant or claimant should, 
 after notice, fail or refuse to comply with the order the allega- 
 tions of the government should be taken as confessed, unless 
 the failure or refusal should be explained to the satisfaction 
 of the court.*" The supreme court, in a ease decided by it at 
 the October term, 1885, held that the provision of the act last 
 above referred to, is unconstitutional and void as applied to 
 suits for penalties or to establish a forfeiture of the party's 
 goods, being repugnant to the fourth and fifth amendments of 
 the constitution; and that an order of the court made under 
 the act, in a suit to establish a forfeiture of the claimant's 
 goods, and requiring him to produce his invoice in court for the 
 inspection of the government attorney and to be offered in evi- 
 dence by him, was an unconstitutional exercise of aiithority, 
 and the inspection of the invoice by the attorney and its ad- 
 mission in evidence were erroneous and unconstitutional pro- 
 ceedings.*^ The decision in that case has been twice approved 
 by the supreme court.** 
 
 § 132. Presentment or indictment by grand jury required 
 in prosecution for infamous crimes. — "No person," it is de- 
 clared by the fifth amendment to the federal constitution, 
 "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 dan- 
 ger." In all criminal prosecutions in the courts of the United 
 
 85 Boyd v. United States, 116 U.. ss Counselman v. Hitchcock, 142 
 S. 616, 641 (29:746). U. S. 547, 586 (35:1110); Lees v. 
 
 86 18 U. S. Stat, at L. chap. 391, United States, 150 U. S. 476 (37: 
 sec. 5, p. 187. 1150). 
 
 87 Boyd V. United States, 116 U. 
 S. 616, 641 (29:746). 
 
102 ' FEDERAL PROCEDURE AT LAW. § 133 
 
 States, in the classes of eases mentioned in this constitutional 
 provision, "a presentment or indictment of a grand jury" is 
 jurisdictional, and the court has no authority to proceed with- 
 out it.^" By the English common law, informations by the at- 
 torney general, without the intervention of a grand jury, were 
 not allowed for capital crimes, nor for any felony, by which 
 was meant any offense which at common law operated to cause 
 a total forfeiture of the offender's lands, or goods, or both; the 
 question whether the prosecution must be by indictment, or 
 might be by information depended upon the consequences to 
 the convict himself. The fifth amendment, declaring in what 
 cases a grand jury should be necessary, and in effect affirming 
 the rule of the common law upon the same subject, substituting 
 for capital crimes or felonies, the words "a capital or other- 
 wise infamous crime," manifestly had in view that rule of the 
 common law, and the framers of the amendment used the lan- 
 guage just quoted in the full sense of its value and of its neces- 
 sity.»» 
 
 § 133. Office and functions of the grand jury. — The office 
 and functions of the grand jury, as an institution of the Eng- 
 lish common law were two fold, namely: (1) To present to the 
 courts having criminal jurisdiction formal written accusations 
 against persons who had been guilty of the commission of 
 crimes; and (2) to prevent unfounded, unjust and malicious 
 prosecutions: ap-ainst inroeent persons. And upon these great 
 principles of public policy and public justice, the institution 
 was adopted as an agency of the federal government."'- 
 
 The origin, development, history and functions of this in- 
 stitution, and its usefulness as an instrumentality of govern- 
 ment have been stated by a distiguished jurist in the following 
 language: "The institution of the grand jury is of very ancient 
 origin in the history of England- — it goes back many centuries. 
 For a long period its powers were not clearly defined; and it 
 
 89 Ex parte Bain, 121 U. S. 1, 114 U. S. 418 (29:89); Mackln v. 
 
 14 (30:849); Mackin v. U. S. 117 United States, 117 TJ. S. 348 (29: 
 
 U. S. 348 (29:909); Ex parte 909); U. S. v. De Walt, 128 U. S. 
 
 Wilson, 114 U. S. 418 (29:89); 393 (32:485). . 
 
 Parkinson v. U. S., 121 U. S. 281 »i Ex parte Bain, 121 U. S. 1, 14 
 
 (30:959). (30:849); Jones v. Bobbins, 8 
 
 00 Ex parte Bain, 121 U. S. 1, Gray, 329. 
 14 (30:849); EX parte Wilson, 
 
§ 133 CONSTITUTIONAL LIMITATIONS. 103 
 
 would seem from the accounts of commentators on the laws of 
 that country that it was at first a body, which not only accused, 
 but which also tried, public offenders. However this may have 
 been in its origin, it was at the time of the settlement of this 
 country an informing and accusing tribunal only, without 
 whose previous action no person charged with a felony coiild, 
 except in certain special cases, be put upon his trial. And in 
 the struggles which at times arose in England between the 
 powers of the king and the rights of the subject, it often stood 
 as a barrier against persecution in his name; until, at length, 
 it came to be regarded as an institution by which the subject 
 was rendered secure against oppression from unfounded prose- 
 cutions of the crown. In this country, from the popular char- 
 acter of our institutions, there has seldom been any contest be- 
 tween the government and the citizen which required the exist- 
 ence of the grand jury as a protection against oppressive ac- 
 tion of the government. Yet the institution was adopted in 
 this country, and is continued from considerations similar to 
 those which give to it its chief value in England, and is de- 
 signed as a means, not only of bringing to trial persons accused 
 of public offenses upon just grounds, but also as a means of 
 protecting the citizen against unfounded accusation, whether 
 it come from government, or be prompted by partisan passion 
 or private enmity. No person shall be required, according to 
 the fundamental law of the country, except in the cases men- 
 tioned, to answer for any of the higher crimes unless this body, 
 consisting of not less than sixteen nor more than twenty-three 
 good and lawful men, selected from the body of the district, 
 shall declare upon careful deliberation, under the solemnity of 
 an oath, that there is good reason for his accusation and 
 trial." «^ 
 
 02 Field, Justice, charge to force may be given to this argu- 
 
 Grand Jury, reported in 2 Sawy. ment, it remains true that the 
 
 667, and quoted in the opinion of grand jury is as valuable as ever 
 
 the court in Ex parte Bain, supra. in securing, in the language of 
 
 "It has been said that, since Chief Justice Shaw, 'individual 
 
 there is no danger to the citizen citizens from an open and public 
 
 from the oppression of a mon- accusation of crime, and from the 
 
 arch, or of any form of executtive trouble, expense, and anxiety of 
 
 power, there is no longer need of a public trial before a probable 
 
 a grand jury. But, whatever cause is established by the pro- 
 
104 FEDERAL PEOCEDUEE AT LAW. § 134 
 
 § 134. Indictment cannot be amended or changed by the 
 court. — It is beyond question, that, at common law, indictments 
 could not be amended ; and the same rule prevails under the 
 federal constitution. Indictments are found upon the oaths 
 of the grand jurj^, and cannot be amended or changed by the 
 order of the court. It is settled by both authority and reason 
 that after an indictment has been changed, 'it is no longer the 
 indictment of the grand jury who presented it. Any other 
 doctrine would place the rights of the citizen, which the con- 
 stitutional provision was intended to protect, at the mercy or 
 control of the court or prosecuting attorney; for, if it be once 
 held that changes can be made by the consent or order of the 
 court in the body of the indictment presented by the grand 
 jury, and the prisoner can be called upon to answer the indict- 
 ment as amended and changed, the restriction which the con- 
 stitution places upon the power of the court, in regard to the 
 prerequisites of an indictment, in reality no longer exist. It is 
 of no avail, under such circumstances, to saj^ that the court still 
 has jurisdiction of the person and of the crime; for, though 
 it has possession of the person, and would have jurisdiction 
 of the crime, if it were properly presented by indictment, the 
 jurisdiction of the offense is gone, and the court has no right 
 to proceed any further in the progress of the case for want of 
 an indictment. If there is nothing before the court which the 
 prisoner, in the language of the constitution, can be "held to 
 answer," he is then entitled to be discharged so far as the 
 offense as originally presented to the court by the indictment 
 is concerned. The power of the court to proceed to try the 
 prisoner is as much arrested as if the indictment had been 
 dismissed or a nolle prosequi had been entered. There is, in 
 such case, nothing before the court on which it can hear evi- 
 dence or pronounce sentence."' 
 
 § 134a. Defendant discharged on habeas corpus when con- 
 victed of infamous crime without indictment of grand jury. — 
 No court of the United States has jurisdiction to try and pun- 
 ish a person for an infamous crime, except upon presentment 
 
 sentment and indictment of such pressive public prosecutions.' " 
 
 a jury; and In case of high of- Ex parte Bain, supra. 
 
 fenses it is justly regarded as one "s Ex parte Bain, 121 U. S. 1, 14 
 
 of the securities to the innocent (30:849). 
 
 against hasty, malicious, and op- 
 
§ 136 CONSTITUTIONAL LIMITATIONS. 105 
 
 of a grand jury; and the trial, conviction, and punishment of a 
 person for such crime, upon an information is coram ncm judice 
 and void; and the supreme court will discharge the defendant 
 upon habeas corpus.^*' And so where a person is tried for and 
 convicted of such crime upon an indictment which was once valid, 
 but which, before the trial, was changed or amended by order of 
 the court the defendant will be discharged."' 
 
 § 135. "Infamous crime" defined. — In the sense of the fifth 
 amendment to the constitution, and also of the federal statutes, 
 a crime punishable by imprisonment in a state prison or peni- 
 tentiary with or without hard labor is an infamous crime ; and 
 in determining whether a crime is infamous, the question is, 
 whether it is one for which the court is authorized to award an 
 infamous punishment, and not whether the punishment ulti- 
 mately awarded is an infamous one."" Under the present law, 
 it is only in eases where a person convicted of an offense against 
 the United States is sentenced to imprisonment for a period 
 longer than one year, that the sentence can be executed in a 
 state prison or penitentiarj'^ ; and the order of a federal court 
 directing that a sentence of imprisonment for a period not 
 greater than one year shall be executed in a penitentiary is 
 void."' 
 
 § 136. Same — Felony. — ^It does not necessarily follow that, 
 because the punishment affixed to an offense against the United 
 States is infamous, the offense itself is thereby raised to the 
 grade of felony."^ The word "felony" was used at common 
 law to denote offenses which occasioned a forfeiture of the 
 lands, or goods, or both, of the offender, to which capital or 
 other punishment might be superadded, according to the de- 
 gree of guilt.'" By statute in some of the states, the word 
 
 9+ Ex parte Wilson, 114 U. S. 417 v. United States, 121 U. S. 281 (30: 
 
 (29:89); Ex parte Mills, 135 U. 959); Ex parte Mills, 135 U. S. 
 
 S. 263 (34:107). 263 (34:107). 
 
 92 Ex parte Bain, 121 U. S. 1, "Ex parte Mills, 135 U. S. 263 
 
 14 (30:849). (34:107). 
 
 90 United States v. De Walt, 128 »» Bannon v. United States, 156 
 
 U. S. 393 (32:485); Mackin v. U. S. 464 (39:494). 
 United States, 117 U. S. 348 (29: 99 Bannon v. United States, 156 
 
 909); In re Claasen, 140 U. S. U. S. 464 (39:494; Ex parte Wil- 
 
 200 (35:409); Ex parte Wilson, son, 114 U. S. 417 (29:89). 
 114 U. S. 417 (29:89); Parkinson 
 
106 FEDERAL PROCEDURE AT LAW. § 136 
 
 "felony" is defined to mean offenses for which the offender, on 
 conviction, may be punished by death or imprisonment in the 
 state prison or penitentiary ; but in the absence of such statute 
 the word is used to designate such serious offenses as were 
 formerly punishable by death, or by forfeiture of the lands or 
 goods of the offender.^ The common law definition of felony 
 is not applicable in the American system of jurisprudence, as. 
 crimes do not, in this country, work a forfeiture of estate. 
 There is no statutory definition of felonies in the legislation 
 of the United States, and the definition must be sought else- 
 where, and more particularly in federal decisions of authority, 
 by which some general rules have been established.- When ai 
 federal statute creating an offense declares that the prohibited 
 act shall be a misdemeanor, that fixes the classification of the 
 offense.' And when the statute creating and defining an 
 offense makes use of such terms as "robbery" or "burglary,"' 
 or other words which have a well-defined meaning in the com- 
 mon law, they are used in the statute in their common law 
 sense; and if the words import a felony at common law, then 
 the offense created by the statute is a felony, unless otherwise 
 defined in the statute. In such case the words of' the statute 
 are held to create such serious offense as was at common, law 
 punishable by death or forfeiture of the lands and goods' of the 
 offender, and, therefore, classed as felony.* It is said that 
 the federal decisions have established the following rules, 
 namely: The term "felony" as used in the federal statute. pre- 
 scribing the number of challenges in criminal trials includes- 
 the following classes of cases: (1) Where the offense is by stat- 
 ute declared to be felonious, expressly or by implication ;, 
 (2) Where the offense is not defined by statute, but is desig- 
 nated by its common law name a felony, known as such at the 
 common law; (3) When congress adopts a state law as to an 
 offense made by the law of the state a felony.' 
 
 1 Bannon v. United States, 156 * Harrison v. United States, 163 
 U. S. 464 (39:494). U. S. 140 (41:104); Bannon v. 
 
 2 Reagan v. United States, 157 United States, 156 U S. 464 
 U. S. 301 (39:709); Considine v. (39:494); Ex parte Wilson, 114 
 ■United States, 112 Fed. 342. U. S. 417 (29:89); Considine v. 
 
 ^Reagan v. United States, 157 United State's, 112 Fed. 342. 
 U. S. 301 (39:709); Considine v. = U. S. v. Coppersmitli, 4 Fed. 
 United States, 112 Fed. 342. 198, and authorities cited; Con- 
 
§ 139 CONSTITUTIONAL LIMITATIONS. 107 
 
 § 137. Exception to the constitutional rule requiring indict- 
 ments in the prosecution of infamous crimes — Land and naval 
 forces — Militia in actual service. — The provision of the fifth 
 amendment requiring that capital or otherwise infamous crimes 
 must be prosecuted by "presentment or indictment of a grand 
 jury," contains the following exception: 
 
 "Except in cases arising in the land or naval forces, or in 
 the militia when in actual service in time of war or public dan- 
 ger." The words, "when in actual service in time of war or- 
 public danger," apply to the militia only. All persons in the 
 military or naval service of the United States are siibjeet to 
 the military law: the members of the regular army and navy 
 at all times ; the militia so long as they are in such service. ° 
 
 § 138. Constitutional right of trial by jury in criminal cases. 
 — The right of trial by jury is secured to all persons accused 
 of crime in the courts of the United States,' except in cases of 
 impeachment, and also except in cases arising in the land and 
 naval forces, or in the militia when in actual service in time 
 of war or public danger;' and the constitutional provisions- 
 securing this right apply to the people of the territories of the- 
 United States, as well as to the people of the several states.' 
 
 § 139. Same — It is a common law jury of twelve men, and 
 a trial according to the rules of the common law. — The words 
 "jury" and "trial by jury" have the same meaning in the 
 constitution which was affixed to them in the common law 
 as it was settled and understood in this country and in Eng- 
 land at the time of the adoption of that instrument. The jury 
 referred to is a jury constituted, as at common law, of twelve 
 
 sidlne v. United States, 112 Fed. son, 105 U. S. 696 (26:1213); 
 
 342. Smith v. Whitney, 116 U. S. 167 
 
 8 Johnson v. Sayer, 158 U. S. (26:601); Johnson v. Sayer, 158 
 
 109 (39:914). When a court mar- U. S. 109 (39:914). 
 
 tial, having jurisdiction of the ' U. S. Const, art. HI, sec. 2, el. 
 
 person accused and of the offense 3; VI art. of Amendment, 
 
 charged, acts within the scope of « Ex parte Milligan, 4 Wall. 2' 
 
 its la-wful authority, its decision (18:281); Johnson v. Sayer, 158 
 
 and sentence cannot be reviewed U. S. 109 (39:914). 
 
 or set aside by the civil courts, » Thompson v. Utah, 170 U. S. 
 
 by habeas corpus or otherwise. 343, 355 (42:1061); Reynolds v. 
 
 Dynes v. Hoover,. 20 How. 65 United States, 98 U. S. 145- 
 
 (15:838); Ex parte Reed, 100 (25:244); Callan v. Wilson, 127 
 
 U. S. 13 (25:38); Ex parte Ma- U. S. 540, 551 (32:223). 
 
108 FEDERAL PROCEDURE AT LAW. - § 140 
 
 men, neither more or less. And the trial by jury secured is a 
 trial by a jury of twelve men, conducted according to the set- 
 tled rules of the common law, and in a court of common law, 
 by the oral testimony of witnesses, in the presence of the judge 
 and jury, and under the inspection and direction of the judge, 
 with exclusive authority in the jury to determine the fact of 
 guilt or innocence, and in whose verdict there shall be absolute 
 unanimity; and it is not within the power of a person accused 
 of a felony, by consent expressly given or by his silence, to 
 authorize a jury of less than twelve men to pass upon the ques- 
 tion of his guilt. The guaranty of a trial by jury, contained 
 in the third article of the constitution, secures a trial in the 
 mode and according to the settled rules of the common law, 
 and the enumeration in the sixth amendment of the rights of 
 the accused ia a criminal prosecution are a declaration of what 
 those rules are, and their embodiment in the amendment is to 
 be referred to the anxiety of the people of the states to have in 
 the supreme law of the land a full and distinct recognition of 
 those rules, made binding on the national government, as es- 
 sential to the preservation of the fundamental rights of life, 
 liberty and property.^" 
 
 § 140. Same — Speedy and public trial. — The constitution^^ 
 secures a "speedy and public trial by an impartial jury," to 
 all persons accused of crime in the courts of the United States. 
 The constitutional provision in this respect is declaratory of a 
 great and fundamental rule of the common law, but a rule 
 Avhich had been shamefully violated by the English govern- 
 ment, especially during the reign of the Tudors and Stuarts; 
 and it cannot be doubted that the statesmen who framed the 
 sixth amendment, and the people of the states who adopted it, 
 bad in mind (1) the cruel and secret proceedings of the star 
 chamber, and (2) the corrupt practices of the crown, and its 
 pusillanimous judges and ministers and sheriffs in "packing" 
 the jury panel, and intimidating juries and imposing upon them 
 penalties for verdicts of acquittal in crown cases.^^ It was, 
 undoubtedly, the purpose and intent of the constitution to 
 secure in all criminal prosecutions a jury which would be im- 
 
 10 Thompson v. Utah, 170 V. S. " VI art. of Amendment. 
 
 343, 335 (42:1061); Sparf v. 12 Hallam's Const. Hist, of Eng- 
 
 United States, 156 U. S. 51-183 land, 139, 498, 499. 
 <39:343). 
 
§ 141 CONSTITUTIONAL LIMITATIONS. 109 
 
 partial as between the government and the accused, and to 
 prevent the exercise of any power or influence by the govern- 
 ment or its officers which would tend to limit in any degree 
 the impartiality and independence of juries in the exercise of 
 their functions as judges of the fact of the guilt or innocence 
 of the accused. 
 
 § 141. Same — ^When crimes against federal laws are local 
 and when not. — Crimes committed against the laws of the 
 United States, when committed within the limits of a state are 
 local, and must be tried in the state and district wherein the 
 crime shall have been committed, and before a jury thereof, 
 which district shall have been previously ascertained by law; 
 but when the crime is not committed within any state, the trial 
 shall be had at such place or places as the congress may, by 
 law have directed.^' Congress has directed that the trial of 
 all olfenses committed against the laws of the United States 
 upon the high seas or elsewhere, out of the jurisdiction of any 
 particular state or district, shall be in the district where the 
 offender is found or into which he is first brought.^* The cir- 
 cuit court of each district sits within and for that district ; and 
 its jurisdiction as a general rule is bounded by its local limits. ^^ 
 At the same time, courts may be required to be held at differ- 
 ent places in a judicial district, and prosecution for offenses 
 committed in certain counties may be required to be tried, and 
 writs and recognizances to be returned at each place, but this 
 does not affect the power of the grand jury sitting at either 
 place to present indictments for offenses committed anywhere 
 within the district.^" As to where trials shall be had in a judi- 
 cial district, that depends entirely upon legislation upon the 
 subject." 
 
 13 United States v. John, 1 (34:913); IT. S. Rev. Stat. sec. 
 
 Black, 484, 488 (17:225); United 730. 
 
 States V. Dawson, 15 How. 463 is Toland v. Sprague, 12 Pet. 
 
 (14:775); Jones v. United States, 300, 328 (9:1093); Devoe Mnfg. 
 
 137 U. S. 211 (34:695; Cook ■?. Co., Petitioner, 108 U. S. 401 
 
 United States, 138 U- S. 181, 182 (27:764); Barrett v. United 
 
 (34:913); U. S. Const, art. HI, States, 169 U. S. 221 (42:724). 
 
 sec. 2, cl. 3; U. S. Const. VI art. le Logan v. United States, 144 
 
 of Amndt. U. S. 263 (36:429); Barrett v. 
 
 1* Jones V. United States, 137 United States, 169 U. S. 221 
 
 U. S. 202. 224 (34:691)- Cook v. (42:724). 
 
 Uniteid States, 138 U. S. 181, 182 i^ Rosecrans v. United States, 
 
110 FEDERAL PKOCEDUEE AT IjAW. § 142 
 
 § 142. Same — Eight of accused to be informed of the nature 
 and cause of the accusation. — "In all criminal prosecutions, 
 the accused shall enjoy the right * * * to be informed of 
 the nature and course of the accusation." ^^ Thi^ can be leg- 
 ally done only in the indictment, or presentment or informa- 
 tion. To meet the constitutional requirement, the indictment 
 must charge the crime with precision and certainty, and every 
 ingredient of which it is composed must be accurately and 
 •clearly alleged; even in cases of misdemeanor, the indictment 
 must be free from all ambiguity, and leave no doubt in the 
 minds of the accused and the court of the exact offense in- 
 tended to be charged, not only that the former may know what 
 he is called upon to meet, but that, upon a plea of former 
 acquittal or conviction, the record may show with accuracy 
 the exact offense to which the plea relates. And in an indict- 
 ment upon a statute for a statutory offense, it is not sufficient 
 to charge the offense in the words of the statute, unless those 
 -words themselves fully, directly, and expressly, without any 
 uncertainty or ambiguity, set forth all the elements necessary 
 to constitute the offense intended to be punished. The true 
 test is, not whether the indictment might possibly have been 
 made more certain, but whether it contains every element of 
 the offense intended to be charged, and sufficiently apprises the 
 defendant of what he must be prepared to meet, and, in case 
 any other proceedings are taken against or should be taken 
 •against him for a similar offense, whether the record shows 
 vrith certainty to what extent he may plead a former acquittal 
 •or conviction.^" But one count in an indictment may refer to 
 matter in a previous count so as to avoid unnecessary repeti- 
 -tion ; and if the previous count be defective or is rejected, that 
 ■circumstance will not vitiate the remaining counts, if the refer- 
 ence be sufficiently full to incorporate the matter going before 
 with that in the count in which the reference is made.^° 
 
 165 TJ. S. 257 (41:708); Post v. United States, 153 U. S. 584, 587 
 
 United States, 161 U. S. 583 (38:830) ; Potter v. United States, 
 
 (40:816); Barrett v.^ United 155 U. S. 438 (39:214). 
 
 •States, 169 U. S. 221 (42:724). 20 Grain v. United States, 162 
 
 18 U. S. Const. VI art. of Amndt. U. S. 625, 650 (40:1097); Blitz 
 
 10 Cochran v. United States, 157 v. United States, 153 U. S. 308, 317 
 
 V. S. 286, 299 (39:704); Evans v. (37:725). 
 
§ 143 CONSTITUTIONAL LIMITATIONS. Ill 
 
 § 143. Same — Right of accused to be confronted with the 
 witnesses against him — Exceptions — Dying declarations. — "In 
 all criminal prosecutions, the accused shall enjoy the right 
 * * * to be confronted with the witnesses against him. ' ' ^^ 
 A person accused of having received stolen goods with intent 
 to convert them to his own use, knowing at the time they were 
 stolen, is not, within the meaning of the constitution, con- 
 fronted with the witnesses against him when the fact that the 
 goods were stolen is established simply by the record of an- 
 other criminal case with which the accused had no connection 
 and in which he was not entitled to be represented by counsel : 
 and the provision of a statute passed by congress "to punish 
 certain larcenies and the receivers of stolen goods," that the 
 judgment of conviction of the principal felon shall be conclus- 
 ive evidence in the prosecution of the receiver of stolen prop- 
 erty, that the property therein described and alleged to have 
 been embezzled, stolen or purloined, had been embezzled, stolen 
 or purloined, is in violation of the constitutional provision se- 
 curing to the accused the right to be confronted with the wit- 
 nesses against him.^^ "To the rule that an accused is entitled 
 to be confronted with the witnesses against him, the admission 
 of dying declarations is an exception which arises from the 
 necessity of the case. This exception was well established 
 before the adoption of the constitution, and was not intended 
 to be abrogated by it. The ground upon which such exception 
 rests is that from the circumstances under which dying declar- 
 ations are made they are equivalent to the evidence of a living 
 witness upon oath, — ' the condition of the party who made them 
 being such that every motive to falsehood must be supposed to 
 have been silenced, and the mind to be impelled by the most 
 powerful considerations to tell the truth. ' " ^^ Dying declara- 
 tions are admissible on a trial for murder as to the fact of the 
 homicide and the person by whom it was committed, in favor of 
 the defendant as well as against him. But it must be shown 
 by the party offering them in evidence that they were made 
 
 21 U. S. Const. VI art. of-Amndt. as Mattox v. United States, 146 
 
 22Kirby v. United States, 174 U. S. 140, 153 (36:917); Kirby v, 
 
 U. S. 47, 64 (43:890); Common- United States, 174 U. S. 47, 64 
 
 wealth V. Blisba, 3 Gray, 460. (43:890). 
 
112 FEDERAL PEOCEDUEE AT LAW. § 143 
 
 under a sense of impending death. This may be made to ap- 
 pear from what the injured person said ; or from the nature and 
 extent of the wounds inflicted, being obviously such that he 
 must hav€ felt or known that he could not survive ; as well as 
 from the conduct at the time and the communications, if any, 
 made to him by his medical advisers, if assented to or under- 
 standingly acquiesced in by him. The length of time elapsing 
 between the making of the declaration and the death is one of 
 the elements to be considered, although it is the impression 
 of almost immediate dissolution, and not the rapid succession 
 of death, in point of fact, that renders the testimony admissible. 
 The point is to ascertain the state of the mind of the declarant 
 at the time the declarations were made. The admission of the 
 testimony is justified upon the ground of necessity, and in view 
 of the consideration that the certain expectation of almost 
 immediate death will remove all temptation to falsehood and 
 enforce as strict adherence to the truth as the obligation of an 
 oath could impose. But the evidence must be received with 
 the utmost caution, and if the circumstances do not satisfactor- 
 ily disclose that the awful and solemn situation in which he is 
 placed is realized by the dying man because of the hope of 
 recovery, it ought to be rejected.-* The constitutional right of 
 the accused to be confronted with the witnsses against him is 
 violated by the admission in evidence of the statement or de- 
 position of a witness taken at the examining trial, where it did 
 not appear that the witness was absent from the trial by the 
 suggestion, procurement, or act of the accused, but, on the con- 
 trary, his absence was manifestly due to the negligence of the 
 officers of the government.^" If the witness is absent from the 
 trial by the wrongful procurement of the accused, he cannot 
 complain if competent evidence is admitted to supply the place 
 of that which he has kept away. The constitution does not 
 guaranty an accused person against the legitimate consequen- 
 ces of his own wrongful act. It grants him the privilege of 
 being confronted with the witnesses against him; but if he 
 voluntarily keeps the witnesses away, he cannot insist on his 
 privilege. If, therefore, when the witnesses are absent by his 
 procurement, evidence is supplied in some lawful way, he is 
 
 2*Mattox V. United States, 146 25 Motes v. United States, 178 
 
 U. S. 140, 153 (39:917). U. S. 458, 476 (44:1150). 
 
§ Hi CONSTITUTIONAL LIMITATIONS. 113 
 
 in no condition to assert that his constitutional rights have 
 been violated. The rule has its foundation in the maxim that, 
 no one shall be permitted to take advantage of his own wrong ;; 
 and consequently, if there has not been in legal contemplations 
 a wrong committed, the way has not been opened for dispens- 
 ing with the presence of the witness and the introduction of 
 testimony to supply that which is lost by his absence.^® Thi3- 
 constitutional right of the accused to be confronted with the- 
 witnesses against him is not violated nor infringed by the 
 admission in evidence, upon the trial, of a transcribed copy 
 of the reporter's stenographic notes of the testimony of two 
 witnesses, whose testimony was given on a former trial, and 
 who have since died, the copy being supported by the testimony 
 of the reporter that it was correct.^' The constitutional pro- 
 vision under consideration relates to a prosecution of an ac- 
 cused person which is technically criminal in its nature, and 
 its protection does not extend to a suit brought under the 
 customs administrative act, to recover the value of merchan- 
 dise forfeited to the United States under that act, and, on trial 
 of such suit, a deposition duly taken in a foreign country and 
 returned properly authenticated and certified under letters 
 rogatory, properly issued and returned, is admissible in evi- 
 dence on behalf of the United States.^* 
 
 § 144. Same — Same — Object of the constitutional provision — 
 Cross-examination — Ground of exception to the rule. — ^As 
 shown by authorities cited in the section next preceding, there 
 are three exceptions to the constitutional rule giving the ac- 
 cused the right to be confronted with the witnesses against 
 him, namely: (1) The admission of dying declarations; (2) the 
 admission of the statement or deposition of a witness made 
 under oath, but who is absent from the trial by the wrongful 
 procurement of the accused; and (3) the admission of the tes- 
 timony of a witness given under oath before the jury in ai 
 former trial, and who is, at the time of the subsequent trial, 
 deceased. The ground of the third exception to the rule is 
 that: the right of the accused to cross-examine the witness 
 
 26 Reynolds v. United States. 98 28 United States v. Zucker, 161 
 U. S. 145, 159 (25:244). U. S. 475, 482 (40:777). 
 
 27 Mattox V. United States, 156 
 U. S. 237, 261 (39:409). 
 
 8 
 
Hi FEDERAL PROCEDURE AT LAW. § 145 
 
 having once been exercised by the accused, it is no hardship 
 upon him to allow the testimony of the deceased witness to 
 be read to the jury.^" The primary object of the constitutional 
 provision is to prevent the use of depositions and ex parte state- 
 ments against the accused, instead of a personal examination 
 and cross-examination of the witness, in which the accused has 
 Tin opportunity to test his recollection and to sift his conscience, 
 and also to compl him to stand face to face with the jury, in or- 
 der that they may look at him, and judging by his demeanor 
 upon the stand and the manner in which he gives his testimony 
 whether he is worthy of belief ; but the constitutional provision 
 must be interpreted in the light of the law as it existed at the 
 time of its adoption, and, being so interpreted, considerations of 
 public policy, and the necessities of the case, have been univer- 
 sally considered by the courts in this country and in England, 
 both before and since the adoption of the constitution, as just 
 and reasonable grounds for the exceptions above indicated to the 
 constitutional rule.'" 
 
 § 145. Same — Right of accused to compulsory process for 
 ■vdtnesses and assistance -of counsel.— A criminal trial, and es- 
 pecially in a capital case, without compulsory process for the 
 witnesses in favor of the accused, and without allowing him 
 to make his full defense by counsel learned in the law, is a 
 cruel mockery of justice; and this strange defect of the com- 
 
 2sRex V. Jollffe, 4 Term Rep. 457; Robinson v. State, 68 Ga. 
 
 285, 290; Rex v. Smith, 2 Stark, 833; State v. Wilson, 24 Kan. 189: 
 
 208; Rex v. Radbourne, 1 Leach S. C. 36 Am. Rep. 257; State v. 
 
 C. C. 512; Buckworth's Case, .Johnson, 12 Nev. 121; Roberts -v. 
 
 Raym. 170; Kendrick v. State, 10 State, 68 Ala. 515; State v. Cook, 
 
 Humph. 479; Commonwealth v. 23 La. Ann. 347; Dunlap v. State, 
 
 Richards, 18 Pick. 434; S. C. 29 9 Texas App. 179; S. C. 35 Am. 
 
 Am. Dec. 608; United States v. Rep. 736; O'Brien v. Common- 
 
 Macomb, 5 McLean, 286; Siimmona wealth, 6 Bush. 564; State v. 
 
 V. State, 5 Ohio St. 325; Brown Hooker, 17 Vt. 658; Carey v. 
 
 V. Commonwealth, 73 Pa. 321; Sprague, 12 Wend. 41; S. C, 27 Am. 
 
 S. C. 13 Am. Rep. 740; State v. Dec. 110; United States v. Wood, 
 
 McO'Blenls, 24 Mo. 402; S. C. 69 3 Wash. C. C. 440; State v. Val- 
 
 Am. Dec. 435; State v. Baker, 24 entine, 29 N. C. 225; Mattox v. 
 
 Mo. 437; State v. Houser, 26 Mo. United States, 156 U. S. 237, 261 
 
 431; State v. Able, 65 Mo. 357; (39:409). 
 
 Owens V. State, 63 Miss. 450; Bar- so Mattox v. United States, 156 
 
 net V. People. 54 111. 325; United U. S. 237, 261 (39:409). 
 States V. White, 5 Cranch C. C. 
 
§ 146 CONSTITUTIONAL LIMITATIONS. 115 
 
 mon law, which stood so long as a reproach upon criminal pro- 
 cedure in England'^ was remedied and provided against by 
 the sixth amendment to the constitution, and an act of the first 
 congress, passed at its second session, entitled "an act for the 
 punishment of certain crimes against the United States. ' ' ^^ 
 The intent and spirit of the constitutional guaranty and the 
 statute haye been faithfully adhered to by the judges and 
 courts of the United States, except that an occasional tendency 
 is seen to appoint, for the defense of capital crimes, very young 
 members of the bar, who, although worthy members of the 
 profession, do not possess that experience, learning and skill in 
 the profession which are requisite in such cases. The accused 
 in such cases ''shall be allowed and admitted to make his full 
 defense by counsel learned in the law." 
 
 § 146. Punishment-^Cruel and unusual not to be inflicted. — 
 The eighth amendment to the constitution declares that: "Ex- 
 cessive bail shall not be required, nor excessive fines imposed, 
 nor cruel and unusual punishments inflicted." This provision 
 was taken from the English "act of settlement," in which, 
 after reciting various grounds of grievances, and, among them, 
 that excessive bail had been required of persons committed 
 in criminal cases, to elude the benefit of the laws made for the 
 liberty of the subjects, and that excessive fines had been im- 
 posed, and illegal and cruel punishments had been inflicted, 
 it is declared "that excessive bail ought not to be required, 
 nor excessive fines be imposed, nor cruel and unusual punish- 
 ments inflicted." This declaration of rights had reference to 
 the acts of the executive and judicial departments of the gov- 
 ernment, and was intended as a restraint upon them.^^ At 
 common law neither the mode of executing a prisoner nor the 
 time or place of execution was necessarily embodied in the 
 sentence; directions in regard to the mode of execution were 
 usually given by the judge in the calendar of capital cases 
 prepared by the clerk at the close of the term, and these direc- 
 tions constituted in many cases the only authority of the ofBeer 
 as to the mode of execution, and they were often attended with 
 
 31 Ante sees. 1-10. 29, p. 118; U. S. Rev. Stat. sec. 
 
 32 U. S. Const. VI art. of Amndt.; 1034. 
 
 1 U. S. Stat, at L. chap. IX, sec. ss b3x parte Kemmler, 136- U. S. 
 
 436, 449 (34:519). 
 
116 FEDERAL PROCEDUKE AT IjAW. § 149 
 
 the greatest atrocities and cruelties.'* Punishments are cruel 
 when they involve torture or a lingering death ; but the punish- 
 ouent of death is not cruel, within the meaning of that word 
 as used in the constitution.^' 
 
 § 147. Same — Same — Cumulative penalties imposed on hab- 
 itual criminals. — ^A statute which imposes increased, cumula- 
 tive or aggravated penalties upon conviction of a crime of a 
 person, because of his having been previously convicted of a 
 crime or crimes, is not violative of the eighth amendment. 
 Such statutes are aimed at habitual criminals; the punishment 
 is for the new crime only; but is made heavier because the 
 accused is an habitual criminal.^' 
 
 § 148. No person twice in jeopardy for same offense — Mean- 
 ing of the prohibition. — The fifth amendment declares: "Nor 
 shall any person be subject for the same offense to be twice 
 put in jeopardy of life or limb." The prohibition is not against 
 being twice punished, but against being twice put in jeopardy; 
 and the accused, whether convicted or acquitted, is equally put 
 in jeopardy at the first trial. An acquittal before a court hav- 
 ing no jurisdiction of the offense is, of course, like all proceed- 
 ings in the case, absolutely null and void, and therefore no bar 
 to a supbsequent indictment and trial in a court which has 
 jurisdiction of the offense. '' But although an indictment be 
 fatally defective, yet, if the court have jurisdiction of the 
 cause and of the party accused, its judgment is not void, but 
 only voidable by writ of error ; and, until so avoided, cannot be 
 collaterally impeached. If the judgment is upon a verdict of 
 guilty, and unreversed, it stands good, and warrants the pun- 
 ishment of the defendant accordingly, and he cannot be dis- 
 charged by writ of habeas corpus.'^ 
 
 § 149. Same — Acquittal upon defective indictment — Com- 
 mon-law rule. — ^In England, by the rule of the common law, 
 an acquittal upon an indictment so defective that, if it had 
 
 3* Wilkerson v. People of the S7 Commonwealtli v. Peters, 12 
 
 United States in Utah, 99 U. S. Met. 382; 2 Hawk. P. C. chap. 35, 
 
 130, 137 (25:345). sec. 3; 1 Bishop Crlm. Law, sec. 
 
 35 Ex parte Kemmler, 136 U. S. 1020; Ball v. United States, 163 
 
 436, 449 (34:519). U. S. 662, 674 (41:300). 
 
 30 McDonald v. Massachusetts, ssbx parte Park, 93 U. S. 18, 
 
 180 U. S. 311, 313 (45:542) and 24 (23:787); Ball v. United States, 
 
 note. 163 U. S. 662, 674 (41:300). 
 
§ 152 CONSTITUTIONAL LIMITATIONS. 117 
 
 been objected to at the trial, or by motion in arrest of judg- 
 ment, or by writ of error, it would not have supported any 
 conviction or sentence, has generally been considered as suffi- 
 cient to support a plea of former acquittal.'" 
 
 § 150. — Sanie — Same — Rule as to acquittal upon defective 
 indictment in the federal courts. — The supreme court of the 
 United States has adopted the English rule as to the effect of 
 an acquittal upon a defective indictment, and has accordingly 
 held, that a general verdict of acquittal found by the jury upon 
 the issue of not guilty to an indictment which undertakes to 
 charge murder and not objected to before the verdict as in- 
 sufficient on account of a failure to charge some of the essen- 
 tial elements of the offense, is a bar to a second indictment 
 for the same killing, although before the trial on the second 
 indictment the first indictment has been held fataUy defective 
 on a writ of error prosecuted by defendants jointly indicted 
 in the first indictment with the defendant who was so ac- 
 quitted." 
 
 § 151. Same — The verdict constitutes the bar. — ^It is the 
 verdict of acquittal found by the jury, and not the judgment 
 entered thereon by the court, which constitutes the bar to a 
 subsequent prosecution. When such a verdict has been duly 
 returned and received by the court, the court can take no other 
 action than to order the discharge of the defendant; the ver- 
 dict of acquittal is final and cannot be reviewed on writ of 
 error or otherwise, without putting the accused twice in jeo- 
 pardy, and thereby violating the constitution; the verdict of 
 acquittal, although not followed by any judgment of the court, 
 is an effectual bar to a subsequent prosecution for the same 
 offense.*^ 
 
 § 152. Same — When defendant procures verdict of convic- 
 tion set aside. — A defendant who has been convicted, and who 
 
 39 2 Hale, P. C. 248, 394; 2 Hawk. ^o Ball v. United State^, 163 
 
 P. C. chap. 35, sec. 1; 1 Stark. U. S. 662, 674 (40:300). 
 
 Crlm. PI. (2nd Ed.) 320; 1 Chitty, 4i Ball v. United States, 163 U. 
 
 Grim. Law, 458; Archb. Grim. PI. S. 662, 674 (40:300); United 
 
 & Bv. (19th Ed.) 143; Russell, States v. Sanges, 144 U. S. 310 
 
 Crimes (6th Ed.), 48; Ball v. (36:446); Gommonwealth v. 
 
 United States, 163 U. S. 662, 674 Tucker, 20 Pick. 356, 365; West v. 
 
 (40:300). State, 22 N. J. L. 212, 231; 1 Lead. 
 
 Grim. Gas. (2nd Ed.) 532. 
 
118 FEDERAL PROCEDURE AT LAW. § 153 
 
 procures the verdict aod judgment against him, upon an indict- 
 ment, to be set aside, may be tried anew upon the same indict- 
 ment, or upon another indictment for the same offense of which 
 he has been convicted. When the defendant, after trial, con- 
 viction and judgment, sues out a writ of error to have the 
 judgment and sentence against him reviewed, and, upon sneh 
 review, the judgment and sentence are reversed, and the indict- 
 ment ordered to be quashed and dismissed, the former convic- 
 tion cannot be pleaded in bar of the second prosecution.*^ 
 
 § 153. Same — Several counts in the indictment — Nolle prose- 
 qui as to some counts — ^No finding as to others. — "It is familiar 
 law that separate counts are united in one indictment, either 
 because entirely separate and distinct offenses are intended to 
 be charged, or because the pleader, having in mind but a single 
 offense, varies the statement in the several counts as to the 
 manner or means of its commission in order to avoid at the 
 trial an acquittal by reason of any unforeseen lack of harmony 
 between the allegations and the proof. "*^ Where there are 
 several counts in the indictment, and a nolle prosequi is entered 
 as to some of them, that works no acquittal, but leaves the 
 prosecution just as though no such counts had ever been in- 
 serted in the indictment.** Where an indictment contains sev- 
 eral counts, and the jury find the defendant guilty on all the 
 counts but one, and the verdict is silent on that one count, and 
 the court receives the verdict and discharges the jury without 
 the consent of the accused, the silence of the jury is equivalent 
 to a verdict of not guilty as to that count, and may be pleaded 
 in bar of any further prosecution of the charge with reference 
 to which the jury were silent.*^ Where the jury find the defend- 
 ant guilty on several counts, and disagree as to other counts, 
 and their disagreement as to such counts is formally entered 
 upon the record, and the jury is discharged by the court, a 
 
 «Ball V. United States, 163 U. United States, 160 U. S. 187 
 
 S. 062, 674 (40:300); Hapt v. (40:388); Putnam v. United 
 
 Utah, 120 U. S. 430 (30:708). States, 162 U. S. 687 (40:1118). 
 
 43 Dealy v. United States, 152 a Dealy v. United States, 152 
 
 U. S. 539, 547 (38:545); 1 Bishop, U. S. 539, 547 (38:545). 
 Crim. Proc. sec. 422; Selvester v. *= Dealy v. United States, 152 
 
 United States, 170 U. S. 262, 271 U. S. 539, 547 (38:545); Selvester 
 
 (42:1029); Claasen's Case, 142 y. United States, 170 U. S. 262, 
 
 U. S. 140 (35:966); Ballew v. 271 (42:1029). 
 
§ 154 CONSTITUTIONAL LIMITATIONS. 119 
 
 subsequent prosecution for the offenses as to which the jury 
 disagreed and on account of which it was regularly discharged 
 would not constitute a second jeopardy/" 
 
 § 154. Same — Disagreement of the jury — Discharge for bias, 
 disqualification or corruption. — Courts of justice are invested 
 with the authority to discharge a jury from giving any verdict, 
 whenever, in their opinion, taking all the circumstances into 
 consideration, there is a manifest necessity for the act, or the 
 ends of public justice would otherwise be defeated, and to or- 
 der a trial by another jury; and the defendant is not thereby 
 twice put in jeopardy within the meaning of the fifth amend- 
 ment to the constitution.*' Whether there is a manifest neces- 
 sity for the discharge of the jury in order to prevent a defeat 
 of the ends of public justice is a question to be finally decided 
 by the presiding judge in the sound exercise of his discretion, 
 taking all the circumstances of the case into consideration.*^ 
 This power of the court may be exercised where the jury are 
 unable to agree ; *° or, when the trial is proceeding, the jury 
 having been sworn and a witness examined, the fact that one 
 of the jury is disqualified by having been a member of the 
 grand jury that found the indictment, becomes known to the 
 court ; °° or when, during the progress of the trial, and after 
 the jury have been empanelled and sworn, and witnesses have 
 been examined, it is made to appear to the court that, either 
 by reason of facts existing when the jurors were sworn, but 
 not then disclosed or known to the court, or by reason of out- 
 side influences brought to bear on the jury pending the trial> 
 the jurors, or any of them, are subject to such bias or preju- 
 dice as not to stand impartial between the government and 
 the accused. ^^ 
 
 *e Selvester v. United States, 170 *» Logan v. United States, 144 
 
 U. S. 262, 271 (42:1029); Put- U. S. 263 (36:429); United States 
 
 nam v. United States, 162 U. S. v. Perez, 9 Wheat. 579 (6:165); 
 
 G87 (40:1118). Simmons v. United States, 142 U. 
 
 47 Thompson v. United States, S. 148 (35:968). 
 
 155 U. S. 271, 283 (39:146); United *» Logan v. United States, 144 
 
 States V. Perez, 9 Wheat. 579 U. S. 263 (36:429); United States 
 
 (6:165); Simmons v. United v. Perez, 9 Wheat. 579 (6.165). 
 
 States, 142 U. S. 148 (35:968); no Thompson v. United States, 
 
 Logan V. United States, 144 U. S. 155 U. S. 271, 283 (39:146). 
 
 203 (36:429) ; Ex parte Lange, 18 si Simmons v. United States, 142 
 
 Wall. 201 (21:887). U. S. 148 (35:908). In the lead- 
 
120 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 155 
 
 § 155. Ex post facto laws — Inhibition applies only to legis- 
 lation concerning crimes.— There is a constitutional inhibition 
 upon both the federal '^ and state '= governments, against the 
 passing of ex post facto laws. Such laws relate to penal and 
 criminal proceedings which impose punishments or forfeitures, 
 and not to civil proceedings which affect private rights retro- 
 spectively. The debates in the constitutional convention, upon 
 this provision of the constitution, show that the phrase ex post 
 
 ing case in America on this sul)- 
 ject. the jury, being unable to 
 agree, were discharged by the 
 court from giving any verdict up- 
 on the indictment, without the 
 consent of the prisoner or of the 
 attorney for the United States; 
 the prisoner's counsel, thereupon, 
 claimed his discharge as of right, 
 and, there being a division in 
 the opinions of the Judges, the 
 question was certified to the su- 
 preme court, in answering which 
 that court, speaking by Justice 
 Story, said: "The question, there- 
 fore, arises, whether the discharge 
 of the jury by the court from giv- 
 ing any verdict upon the indict- 
 ment, with which they were 
 charged, without the consent of 
 the prisoner, is a bar to any fu- 
 ture trial for the same offense. If 
 it be, then he is entitled to be dis- 
 charged from custody; if not, th^n 
 he ought to be held in imprison- 
 ment until such trial can be had. 
 We are of opinion that the facts 
 constitute no legal bar to a fu- 
 ture trial. The prisoner has not 
 been convicted or acquitted, and 
 may again be put upon his de- 
 fense; We think, that in all cases 
 of this nature, the law has in- 
 vested courts of justice with the 
 authority to discharge a jury 
 from giving a verdict, whenever, 
 in their opinion, taking all the 
 circumstances into consideration. 
 
 there is a manifest necessity for 
 the act, or the ends of public jus- 
 tice would otherwise be defeated.. 
 They are to exercise a sound dis- 
 cretion on the subject; and- it is 
 impossible to define all the cir- 
 cumstances which would render 
 it proper to interfere. To be sure, 
 the power ought to be used with 
 the greatest caution, under urgent 
 circumstances, and for plain and 
 obvious causes; and, in capital 
 cases especially, courts should be 
 extremely careful how they in- 
 terfere with any of the chances 
 of life, in favor of the prisoner. 
 But, after all, they have the right 
 to order the discharge; and the 
 security which the public have for 
 the faithful, sound and conscien- 
 tious exercise of this discretion, 
 rests, in this, as in other cases, 
 upon the responsibility of the 
 judges, under their oaths of of- 
 fice. We are aware that there is 
 some diversity of opinion and 
 practice on this subject, in the 
 American courts; but, after weigh- 
 ing the question with due delib- 
 eration, we are of opinion that 
 such a discharge constitutes no 
 bar to further proceedings, and 
 gives no right of exemption to the 
 prisoner from being again put up- 
 on trial." United States v. Perez, 
 supra. 
 
 52 U. S. Const, art. I, sec. 9, cl. 3. 
 
 53 U. S. Const, art. I, sec. 10. 
 
§ 156 CONSTITUTIONAL LIMITATIONS. 121 
 
 facto laws was understood in a restricted sense, relating to 
 criminal cases only, and the description of Blackstone of such 
 laws was referred to for their meaning. This signification 
 was adopted in the supreme court shortly after its organiza- 
 tion, in opinions carefully prepared, and has been repeatedly 
 announced since that time. The same words are used in the 
 constitutions of many of the states, and in the opinions of their 
 courts, and by writers upon public law, and are uniformly un- 
 derstood in this restricted sense.'* 
 
 § 156. Same — Reason for the constitutional inhibition. — The 
 provision of the constitution inhibiting the passing of ex post 
 facto laws, like many other guaranties of that instrument, or- 
 iginated in the settled purpose and policy of the founders of 
 the government to secure the people of this country from the 
 invasions of the individual rights of life, liberty and property 
 which had been so frequent in the judicial and constitutional 
 history of England. It was prompted by the memory of that 
 long debauch of parliamentary and judicial crimes in that 
 country, which must ever shock the moral sense of mankind. 
 The inhibition had its origin in a knowledge of the fact that 
 the parliament of Great Britain had claimed and exercised 
 the power to pass ex -post facto laws, under the denomination 
 of bills of attainder, or bills of pains and penalties; the first 
 inflicting capital, and the latter lesser punishment. Those 
 acts were legislative judgments, and an exercise of judicial 
 power. Sometimes they respected the crime, by declaring acts 
 to be treason, which were not treason when committed; at 
 other times, they violated the established rules of evidence, 
 in order to supply a deficiency of legal proof, by admitting as 
 sufficient for conviction one witness, when the existing law 
 required two, or by receiving depositions and ex parte affida- 
 vits, or evidence without oath, by allowing the wife to testify 
 against the husband, or by receiving other illegal testimony 
 which the courts of justice would not admit; at other times, 
 they inflicted, punishments, where the party was not, by law, 
 liable to any punishments; and in other cases they inflicted 
 
 siWatson V. Mercer, 8 Pet. 88 How. 395 (13:469); Carpenter v. 
 
 t8:876); Locke v. New Orleans, Pennsylvania, 17 How. 456 
 
 4 Wall. 172 (18:334); Calder v. (15:127); Re Sawyer, 124 U. S. 
 
 Bull, 3 Ball. 386 (1:648); Balti- 200 (31:402). 
 more & S. R. R. Co. v. Nesbit, 10 
 
122 FEDERAL PROCEDURE AT LAW. § 157 
 
 greater punishment than the la^w annexed to the offense. The 
 ground relied on for the exercise of such legislative power was 
 the plea, that the safety of the kingdom demanded the death, 
 or other punishment of the offender; and with but few excep- 
 tions, the advocates of such laws were stimulated by personal 
 ambition or resentment and vindictive malice. To prevent 
 such and similar acts of violence and injustice, and to secure 
 to every person charged with crime a fair and impartial trial, 
 according to known, certain and fixed rules of law, evidence 
 and procedure, antecedently established, this constitutional in- 
 hibition was imposed upon both state and federal govern- 
 ments.'" 
 
 § 157. Same — Defined. — An ex post facto law within the 
 meaning of the constitution may be defined as follows: (1) A 
 law which, in its operation, makes that criminal which was 
 not so at the time the action was performed ; or (2) which ag- 
 gravates the crime or makes it greater than it was when com- 
 mitted; or (3) which changes the punishment and inflicts a 
 greater punishment than was annexed to the crime when 
 committed, or which, in relation to the offense or its conse- 
 quences, alters the situation of a party to his advantage; 
 or (4) which alters the legal rules of evidence, and receives 
 less or difl'erent testimony than the law required at the time of 
 the commission of the offense in order to convict the of- 
 fender ;°° or (5) which takes away from the accused, what, 
 by the law when the crime was committed, was a good defense 
 to the crime charged.^' A provision in a state constitution, 
 denying to a person charged with the crime of murder in the 
 first degree, the benefit of the state law as it was at the time 
 of the commission of the crime, under and by virtue of which 
 a conviction of murder in the second degree was an acquittal 
 of murder in the first degree, even though such judgment of 
 conviction be subsequently reversed, is held by the supreme 
 court to be in conflict with the constitutional inhibition; the 
 decision proceeding upon the ground that siich a provision 
 in a state constitution deprives the accused of a substantial 
 
 55 Calder v. Bull, 3 Dall. 386 st United States v. Hall, 2 Wash. 
 
 (1:648). 366, Fed. Cas. 15285; Kring v. 
 
 5s Calder v. Bull, 3 Dall. 386 Missouri, 107 U. S. 221, 251 
 
 (1:648). (27:506). 
 
§ 158 CONSTITUTIONAL LIMITATIONS. 123 
 
 right which the law gave him when the offense was committed, 
 and, therefore, in its application to that offense and its conse- 
 quences, altered the situation of the party to his disadvantage. 
 By the law as established when the offense was committed, 
 the accused could not have been convicted of murder in the 
 first degree after his conviction of murder in the second de- 
 gree; whereas, by the abrogation of that law by a constitu- 
 tional provision subsequently adopted, if such abrogation 
 should be held valid as to his crime, he could thereafter be 
 tried and convicted of murder in the first degree, and punished 
 accordingly; and thus the judgment of conviction of murder 
 in the second degree would be deprived of all force as evidence 
 to establish his immunity thereafter from punishment for mur- 
 der in the first degree. Such a proceeding has been held to be 
 a deprivation of a substantial right which the accused had 
 at the time the alleged offense was committed. '* 
 
 § 158. Same — Change in the law of procedure. — The inhibi- 
 tion upon the passage of ex post facto laws does not give a 
 person charged with crime a right to be tried in aU respects, 
 by the law in force when the crime charged was committed. 
 The mode of trials is always under legislative control, subject 
 only to' the condition that the legislature may not, under the 
 guise of establishing modes of procedure and prescribing reme- 
 dies, violate the accepted- principles that protect an accused 
 person against ex post facto enactments.'^'' A change in the 
 law as to the qualification of jurors,"" or the competency of 
 witnesses, permitting the crime charged to be established by 
 witnesses who by the law at the time the offense was commit- 
 ted were incompetent to testify in any case whatever, is not 
 within the constitutional inhibition. °^ But the legislature can- 
 not, under the guise of regulating procedure, deprive a per- 
 son accused of crime of any substantial right which the law 
 secured to him at the time the crime was committed ; for a law 
 which is one of procedure may be obnoxious as an ex post facto 
 law.°^ • 
 
 S8 Kring v. Missouri, 107 U. S. eo Gibson y. Mississippi, 162 U, 
 
 221 (27:506); Hapt v. Utah, 110 S. 565, 592 (40:1075). 
 
 U. S. 574, 590 (28:262). ei Hapt v. Utah, 110 U. S. 574, 
 
 50 Gibson V. Mississippi, 162 U.. 598 (28:262). 
 
 S. 505, 592 (40:1075); Hapt v. t'2 Kring v. Missouri, 107 U. S.. 
 
 Utah, 110 U. S. 574, 589 (28:262). 221, 251 (27:506). 
 
124 FEDEEAI, PROCEDURE AT LAW. § 160 
 
 § 159. Same — Legislative acts valid as to one class of cases 
 and void as to another class.^A legislative act may be entirely 
 valid as to some classes of cases, and clearly void as to others. 
 A general law for the punishment of offenses, which should 
 endeavor to reach, by its retroactive operation, acts before 
 committed, as well as to prescribe a rule of conduct for the 
 citizen in future, would be void so far as it was retrospective ; 
 but such invalidity would not affect the operation of the law 
 in regard to the cases which were within the legislative con- 
 trol.''^ 
 
 § 160. Same — Illustrations. — The provisions of the constitu- 
 tion of Missouri, adopted immediately after the civil war, im- 
 posing a test oath as a condition of following certain profes- 
 sions,^* and the acts of congress imposing a test oath as a con- 
 dition of practicing as attorneys and counsellors in the courts 
 of the United States,"' were obnoxious to the constitutional in- 
 hibition against the passing of ex post facto laws. And so 
 a legislative enactment by which a man's estate, or any part 
 of it, shall be seized for a crime, which was not declared by 
 some previous law to render him liable to that punishment, is 
 an ex post facto law.*'^ A statute which requires the warrant 
 issued for the execution of a capital sentence to appoint and 
 designate a week of time within which such sentence must be 
 executed, and which gives to the warden of the prison power 
 io fix the particular day and hour for the execution of the sen- 
 tence within the week specified, and requires that the time so 
 fixed for the execution shall be by him kept secret, and in no 
 manner divulged except privately, and to a limited number of 
 persons is ex post facto as to crimes previously committed, 
 the mental anxiety resulting from the secrecy and the power in 
 the warden to fix the time of execution being an increase and 
 aggravation of the offender's punishment."^ A statute chang- 
 ing the law so as to impose solitary confinement on a convicted 
 felon while awaiting execution, is, as to offenses previously 
 committed, ex post facto, because it imposes an additional pun- 
 
 63 Jaehne v. People of New «5 Ex parte Garland, 4 Wall. 333, 
 
 York, 128 U. S. 189 (32:398); Bit- 399 (18:366). 
 
 -tenhaus v. Johnston, 92 Wis. 594, fe Fletcher v. Peck, 6 Cranch, 87 
 
 ■66 N. W. 806, 32 L. R. A. 381. (3:162). 
 
 6* Cummings v. IVIissouri, 4 e? gx parte Medley, 134 U. S. 
 
 Wall. 277, 332 (18:356). 160, 176 (33:835). 
 
§ 163 CONSTITUTIONAL LIMITATIONS. 125 
 
 ishment.^^ A statute which makes it a misdemeanor to at- 
 tempt to practice medicine after conviction of a felony, is with- 
 in the police power of the state, and is not unconstitutional, 
 even .when applied to a person who was convicted of a felony 
 before the passage of the act.^" The provision of the consti- 
 tution of Utah, providing for trial by a jury of eight persons 
 instead of twelve, as previously, in courts of general jurisdic- 
 tion, is, when applied to a felony committed within the limits 
 of the state while it was a territory, within ■ the idhibition 
 against ex post facto laws ; '" but a statute providing that per- 
 sons selected for jury service shall possess good intelligence, 
 sound judgment, and fair character, is, when applied to a 
 capital felony committed before its passage, a legitimate ex- 
 ercise of legislative power/^ A statute providing that, com- 
 parison of a disputed writing with any writing proved to the 
 satisfaction of the judge to be genuine shall be permitted to 
 be made by witnesses, and such writings and the evidence of 
 witnesses respecting the same may be submitted to the court 
 and jury as evidence of the genuineness or otherwise of the 
 writing in dispute, is not, as to crimes committed before its 
 passage, an ex post facto law.'^ A statute which confers upon 
 the state in a criminal ease the right of appeal from a judg- 
 ment granting the defendant a new trial, which was enacted 
 after the commission of the offense; and after the trial, but be- 
 fore the trial court had granted a new trial, is not within the 
 inhibition against the passage of ex post facto laws.'^ 
 
 § 161. Same — Statutes mitigating punishment — What is a 
 mitigation — New York rule. — The justice delivering the opin- 
 ion in the leading case said, upon this point: "But I do not 
 consider any law ex post facto, within the prohibition, that 
 mollifies the rigor of the criminal law ; but only those that 
 create or aggravate the crime; or increase the punishment, or 
 change the rules of evidence, for the purpose of conviction." ''* 
 
 68 Ex parte Medley, 134 U. S. ^2 Thompson v. Missouri, 171 
 
 160, 176 (33:835). U. S. 380, 388 (43:204). 
 
 «" Hawker v. State of New York, ^s Mallett v. North Carolina, 
 
 170 U. S. 189, 205 (42:1002). 181 U. S. 589, 601 (45:1015). 
 
 ?o Thompson v. Utah, 170 U. S. " Calder v. Bull, 3 Dall. 386 
 
 343, 355 (42:1061). (1:648). 
 
 '1 Gribson v. Mississippi, 162 U. 
 S. 565 (40:1075). 
 
126 FEDERAIi PROCEDURE AT LAW. § 163 
 
 There has been some want of harmony in the decisions as to 
 what is a mitigation of punishment/^ but the courts of New 
 York have adopted a rule which seems reasonable, namely: 
 
 (1) It would be compentent for the legislature, by a general 
 law, to remit any separable part of the punishment; and 
 
 (2) any changes which should be referable to prison discipline, 
 or penal administration, as its primary object, such as changes 
 in the manner and kind of employment of convicts sentenced 
 to hard labor, the system of supervision, the means of restraint, 
 ■or the like, may be made to take effect upon past as well as 
 upon future offenses, although such changes might operate to 
 either increase or mitigate the severity of the punishment 
 after conviction.^" "An act plainly mitigating the punishment 
 ■of an offense is not ex post facto; on the contrary, it is an act 
 of clemency. A law which changes the punishment of an of- 
 fense from death to imprisonment for life, is a law mitigating 
 the punishment, and, therefore, not ex post facto."'''' 
 
 § 162. Same — When accused discharged — When the new 
 law is found to be ex post facto, and that law wholly repeals 
 and displaces the law in force at the time the crime was com- 
 mitted, and there is no saving as to past offenses, the accused 
 cannot be punished at all, but must be wholly discharged.^* 
 
 § 163. Constitutional right of trial by jury in civil cases at 
 law. — In the federal judicial system, the distinction between 
 common law and equity, as it existed m England at the time 
 of the separation of the two countries, has been maintained, 
 although both jurisdictions are vested in the same courts;^" 
 and the seventh amendment to the constitution declares that, 
 
 75 State V. Arlin, 39 N. H. 179; 237; People v. Hayes, 140 N. Y. 
 
 Strong V. State, 1 Blackf. 193; 484, 37 Am. St. Rep. 572. 
 
 Heber V. State, 7 Tex. 69; Lynn V. ^s Re Medley, 134 U. S. 160 
 
 State, 84 Md. 78, 35 Atl. 22; Hart- (33:835); Hartung v. People, 22 
 
 ung V. People, 22 N. Y. 104, 25 JST. Y. 105, 25 N. Y. 406, 26 N. Y. 
 
 N. Y. 406, 26 N. Y. 167, 28 N. Y. 167, 28 N. Y. 410. 
 
 410. '"U. S. Const, art. Ill, sec. 2; 
 
 • 76 Hartung v. People, 22 N. Y. Ex parte Sawyer, 124 U. S. 200, 
 
 1041, 25 N. Y. 406, 26 N. Y. 167 225 (31:402); Fenn v. Holme, 21 
 
 28 N. Y. 410; Ratzky v. People How. 481, 487 (16:198); Thomp- 
 
 29 N. Y. 124; People v. Hayes, 140 son v. Central Ohio R. R. Co., 6 
 N. Y. 484, 37 Am. St. Rep. 572. Wall. 134 (18:765); Heine v. Levee 
 
 77 Chief Justice Shaw in Com- Commrs., 19 Wall. 655 (22:223); 
 monwealth v. Wyman, 12 Cush. Robinson v. Campbell, 3 Wheat. 
 
§ 165 CONSTITUTIONAL LIMITATIONS. 127 
 
 "in suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be pre- 
 vserved. ' ' 
 
 § 164. Same — ^Meaning of the phrases "cases in law" and 
 "'suits at common law." — The phrases "suits at common law," 
 'Contained in the seventh amendment, and "cases in law," con- 
 tained in the constitution as originally adopted,*" have the 
 ■same signification, and mean not merely suits which the com- 
 mon law recognizes among its old and settled remedies, but 
 they embrace all suits for the determination and settlement of 
 legal rights whatever may be their peculiar form, and which 
 •are not of equity and admiralty jurisdiction.*^ 
 
 § 165. Same — Trial by jury defined. — Trial by jury, in civil 
 ■cases, in the courts of the United States, and within the mean- 
 ing of the federal constitution, is not merely a trial by a jury 
 ■of twelve men before an officer vested with authority to cause 
 them to be summoned and impaneled, to administer oaths to 
 them, and to the witnesses, and to the constable in charge, and 
 to enter judgment on their verdict, and issue execution; but it 
 is a trial by a jury of twelve men, in the presence and under 
 the superintendence of, and presided over by a judge, with 
 power not only to rule upon the admissibility of evidence, but 
 also to instruct the jury upon the law applicable to the case, 
 .and, when in his judgment the due administration of justice 
 requires it, to aid the jury by explaining and commenting 
 upon the testimony, calling their attention to parts of it which 
 lie thinks important, and even giving them his opinion on 
 questions of fact, provided only he submit those questions to 
 their determination; and with power in the presiding judge 
 to set aside the verdict of the jury and grant a new trial, if in 
 Tiis opinion and discretion, the due and proper adnjinistration 
 of justice requires it. The jury trial secured by the constitu- 
 tion is a common law jury trial. The constitution secures a 
 trial by jury, without defining what that trial is, and we are 
 
 ■221; Parsons v. Bedford, 3 Pet. si parsons v. Bedford, 3 Pet. 433 
 
 446, 447; Stroeher v. Lucas, 6 Pet. (7:732); Parish v. Ellis, 16 Pet. 
 
 '768, 769; Bennett v. Buttervorth, 454 (10:1029); Hipp v. Babin, 19 
 
 11 How. 669; Fitts v. McGhee, 172 How. 278 (15:635); Root v. Rail- 
 
 TT, S. 516, 533 (43:535). way Co., 105 U. S. 206 (26:981). 
 sou. S. Const, art. Ill, sec. 2. 
 
128 FEDERAL PROCEDURE AT LAW. § 167 
 
 left to the common law to learn what it is that is secured. At 
 the time of the adoption of the constitution, and for genera- 
 tions before, both in England and in the colonies, a trial by 
 jurj^ was a trial of an issue or issues of fact by a jury of twelve 
 men, in a superior court of common law, under the direction 
 and superintendence of the court, and this direction and super- 
 intendence, including the power to set aside the verdict of the 
 jury and grant a new trial, was an essential part of the trial, 
 end in the federal courts, each party, the losing as well as 
 the winning, has a right to the legitimate trial by jury, with 
 all its safeguards, as they existed and were understood when 
 the constitution was adopted. *- 
 
 § 166. Same — Not to be defeated by blending legal and equit- 
 able demands. — The right of trial by jury in actions at law in 
 the courts of the United States is fundamental, and cannot be 
 defeated by indirection or circumvention; and, although, under 
 the dual system of government created by the constitution, a 
 large part of the functions of the federal courts are to admin- 
 ister state laws between competent parties, and those courts 
 follow the state procedure in actions at law, yet, nevertheless, 
 no state legislation establishing procedure and blending legal 
 and equitable remedies will be followed in the federal courts 
 to the extent of defeating a trial by jury on legal causes of 
 action. *^^ 
 
 § 167. Same — Philippine Islands. — The constitutional guar- 
 anty of trial by jury has not been extended to the Philippine 
 Islands.'* In the case cited, the court reached the following 
 conclusions, here stated in the words of the court, namely : 
 
 "(1) That while the Philippine Islands constitute territory 
 which has been acquired by, and belongs to, the United States, 
 there is a difference between such territory and the territories 
 
 82 Capital Taction Co. v. Hof, 553 (30:257); United States v. 
 
 174 U. S. 1, 46 (43:873); United 1363 Bags Merchandise, 2 Sprague, 
 
 States V. Philadelphia & Reading 85, 88. 
 
 Railroad Co., 123 U. S. 113, 114 sa Scott v. Neely, 140 U. S. 106, 
 
 (31:138); Sarf v. United States, 117 (35:358); Cates v. Allen, 149 
 
 156 U. S. 51, 106 (39:343); Thomp- U. S. 458. (37:808). 
 
 son V. Utah, 170 U. S. 343, 350 84 United States v. Dorr, 190 U. 
 
 (42:1061); Vicksburg & M. Rail- S. Appendix I (47:1187). 
 road Co. v. Putnam, 118 U. S. 545, 
 
§ 168 CONSTITUTIONAL LIMITATIONS. 129 
 
 which are a part of the United States, with reference to the 
 constitution of the United States. 
 
 ' ' (2) That the constitution was not extended here by the 
 terms of the treaty of Paris, under which the Philippine Is- 
 lands were acquired from Spain. By the treaty the status of 
 the ceded territory was to be determined by congress. 
 
 "(3) That the mere act of cession of the Philippines to thei 
 United States did not extend the constitution here, except such 
 parts as fall within the general principles of fundamental 
 limitations in favor of personal rights, formulated in the con- 
 stitution and its amendments, and which exist rather by in- 
 ference and the general spirit of the constitution, and except 
 those express provisions of the constitution which prohibit 
 congress from passing laws in their contravention under any 
 circumstances; that the provisions contained in the constitu- 
 tion relating to jury trials do not fall within either of these 
 exceptions, and consequently the right to trial by jury has not 
 been extended here by the mere act of the cession of the ter- 
 ritory. 
 
 ' ' (4) That congress has passed no law extending here the 
 provisions of the constitution relating to jury trials, nor were 
 any laws in existence in the Philippine Islands at the date of 
 their cession for trials by jury, and consequently there is no law 
 in the Philippine Islands entitling the defendants in this case 
 to such trial; that the court of first instance committed no error 
 in overruling their application for a trial by jury. ' ' *^ 
 
 § 168. Same — Not applicable to court of claims. — The act of 
 congress which invests the court of claims with power to ren- 
 der judgment in favor of the United States against a claimant, 
 upon any set-off, counter-claim, claim for damages, or other 
 demand, is not in contravention of the constitutional guaranty 
 of trial by jury; for the reason that suits against the govern- 
 ment in the court of claims whether reference be had to the 
 claimant's demand, or to the defense, or to any set-off, or 
 counter-claim which the government may assert, are not suits 
 at common law within the true meaning of the constitution. 
 The government cannot be sued except with its own consent. 
 It can declare in what court it may be sued, and prescribe the 
 
 85 United States v. Dorr, supra. And see also Downes v. Bedwell, 182 
 U. S. 244, 391 (45:1088). 
 
 9 
 
130 FEDEEAX, PBOCEDXniE AT LAW. § 169 
 
 forms of pleading and the rules of practice to be observed in 
 such suits. It may restrict the jurisdiction of the court to 
 a consideration of only certain classes of claims against the 
 United States. The act of congress informs the claimant that 
 if he avails himself of the privilege of suing the government 
 in the special court organized for that purpose, he may be met 
 with a set-off, counter-claim, or other demand of the govern- 
 ment, upon which judgment may go against him, without the 
 intervention of a jury, if the court, upon the whole case, is of 
 opinion that the government is entitled to such judgment. 
 If the claimant avails himself of the privilege thus granted to 
 him, he must do so subject to the conditions annexed by the 
 government to the exercise of the privilege.'" 
 
 § 169. Pact tried by jury not re-examined otherwise than 
 according to the rules of the common law. — The seventh 
 amendment to the constitution declares: "And no fact tried 
 by a jury shall be otherwise re-examined in any court of the 
 United States, than according to the rules of the common law. ' ' 
 The only modes known to the common law for the re-examina- 
 tion of facts tried by a jury are the granting of a new trial by 
 the court where the issue was tried, or to which the record 
 was properly returnable; or the award of a venire facias de 
 novo, by an appellate court, for some error of law which in- 
 tervened in the proceeding. The rule applies to facts tried by 
 a jury in both the federal courts and the state courts, and the 
 record must be removed by writ of error, and not by appeal.^'^ 
 Story, Justice, in a case in the circuit court, after quoting the 
 words of the seventh amendment, said: "Beyond all question, 
 the common law here alluded to is not the common law of 
 any individual state (for it probably differs in all), but it is 
 the common law of England, the grand reservoir of all our 
 jurisprudence. Now, according to the rules of the common 
 
 ssMcElrath v. United States, Ins. Co. v. Folsom, 18 Wall. 237, 
 
 102 tr. S. 426, 441 (26:189). 249 (21:827); Railroad Co. v. Fra- 
 
 87 Parsons V. Bedford, 3 Pet. 433 loff, 100 U. S. 24, 31 (25:531); 
 
 -(7:732); Barreda v. Silsbee, 21 Lincoln v. Power,' 151 U. S. 436, 
 
 How. 146, 166 (16:86); Justice v. 438 (38:224); Railroad Co. v. Chi- 
 
 Murray, 9 Wall. 274, 277 (19:658); cago, 166 U. S. 226, 246 (41:979); 
 
 Miller v. Life Ins. Co., 12 Wall. Capital Traction Co. v. Hof, 174 
 
 285, 300 (20:398); Ins. Co. v. Com- U. S. 1, 46 (43:373). 
 stock, 16 Wall. 258, 269 (21:493); 
 
§ 171 CONSTITUTIONAL LIMITATIONS. 131 
 
 law, the facts once tried by a jury are never re-examined, un- 
 less a new trial is granted in the discretion of the court, be- 
 fore which the suit is depending, for good cause shown; or un- 
 less the judgment of such court is reversed by a superior 
 tribunal, on a writ of error, and a venire facias de novo is 
 awarded. This is the invariable usage, settled by the decis- 
 ions of ages. ' ' '^ 
 
 § 170. Same — Doctrine stated by Justice Gray. — The doc- 
 trine on this subject has been stated by Gray, Justice, of the 
 United States supreme court, as follows: 
 
 "It must therefore be taken as established, by virtue of the 
 seventh amendment to the constitution, that either party to an 
 action at law (as distinguished from suits in equity or in ad* 
 miralty) in a court of the United States, where the value in 
 controversy exceeds twenty dollars, has the right to a 'trial by 
 jury; that, when a trial by a jury has been had in an action at 
 law, in a court either of the United States or of a state, the 
 facts there tried and decided cannot be re-examined in' any 
 court of the United States, otherwise than according to the 
 rules of the common law of England ; that by the rules of that 
 law, no other mode of re-examination is allowed than upon a 
 new trial, either granted by the court in which the first trial 
 was had or to which the record was returnable, or ordered by 
 an appellate court for error in law; and therefore that, unless 
 a new trial was had in one of those two ways, facts once tried 
 by a jury cannot be tried anew, by a jury or otherwise, in any 
 court of the United States." '" 
 
 § 171. Same — Facts tried by jury in bankruptcy proceed- 
 ings reviewable on writ of error only. — A final judgment of a 
 United States district court, sitting in bankruptcy, rendered 
 upon a verdict of not guilty of a jury, under the provision of 
 the Bankrupt Act now in force, can be reviewed on writ of 
 error only. The proceedings in administration of bankrupt es- 
 tates are equitable in their nature ; but the bankruptcy courts 
 act under specific statutory authority, and when on an issue 
 of fact as to the existence of ground for adjudication a jury 
 trial is demanded, it is demanded as of right, and the trial is 
 a trial according to the course of the common law; and, this 
 
 88 United States v. Wonson, 1 89 Capital Traction Co. v. Hof, 
 ■Gall. 14, Fed. Cas. 16,750. 174 U. S. 1, 46 (43:873). 
 
132 FEDERAL PROCEDURE AT I^W. § 173 
 
 being so, judgments rendered in such cases are revisable only 
 on writ of error."" 
 
 § 172. Eminent domain. — The power to take private prop- 
 erty for public use, generally termed the right of eminent 
 domain, belongs to every independent government; it is an 
 incident of sovereignty, and requires no constitutional recogni- 
 tion, and the provision contained in, the fifth amendment to- 
 the constitution, declaring that private property shall not be 
 taken for public use without just compensation, is merely a 
 limitation upon the use and exercise of the power. ^^ The right 
 of eminent domain is vested in the federal government, and 
 may be exercised within the states, and without their consent, 
 so far as is necessary to execute the powers of government 
 vested in it by the federal constitution ;°^ and whenever it be- 
 comes necessary for the' accomplishment of any object within 
 the authority of congress, to exercise the right of eminent do- 
 main and take private lands, making just compensation to 
 the owners, congress may exercise the right with or without 
 a concurrent act of the state in which the land lies."' While 
 the courts have power to determine whether the use for which 
 private property is authorized by the legislature to be taken, 
 is in fact a public use, yet, if this question is decided in the 
 affirmative, the judicial function is exhausted, and the extent 
 to which such property shall be taken for such use rests wholly 
 in the legislative discretion, subject only to the restraint that 
 just compensation must be made."* 
 
 . § 173. Same — Public use. — ^When the legislature hasi de- 
 clared the use or purpose to be a public one, its judgment will 
 be respected by the courts, unless the use be palpably without 
 reasonable foundation."' While great latitude is given the 
 legislature, the purpose must be, iona fide, a public one, and 
 
 90 Elliott & Co. V. Toeppner, 187 v. Gettysburg Electric R. Co., 160' 
 
 U. S. 327, 335 (47:200); Knicker. U. S. 668 (40:576). 
 
 bocker Ins. Co. v. Comstock, 16 83 Luxton v. North River Bridge 
 
 Wall. 258 (21:493). Co., 153 U. S. 525, 534 (38:808); 
 
 »i United States v. Jones, 109 Van Brocklin v. Anderson, 117 
 
 U. S. 513, 521 (27:1015); Boom U. S. 151, 154 (29:845). 
 
 Co. V. Patterson, 98 U. S. 406 «* Shoemaker v. United States, 
 
 (25:208). 147 U. S. 282, 322 (37:170). 
 
 92 Kohl v. United States, 91 U. is United States v. Gettysburg 
 
 S. 367, 379 (23:449); United States Electric R. Co., 160 U. S. 668, 68& 
 
 (40:576). 
 
§ 174. CONSTITUTIONAL LIMITATIONS. l33 
 
 not a mere colorable device for the purpose of taking the prop- 
 erty of one citizen for the benefit of another."' 
 
 § 174. Same — What is a taking. — ^Where the government, in 
 improving the navigation of a navigable stream, by the construc- 
 tion of a dam or other public works so floods lands belonging 
 to an individual as to substantially destroy their value, there 
 is a taking within the meaning and scope of the fifth amend- 
 ment to the constitution. While the government does not di- 
 rectly proceed to appropriate the title, yet, it takes away the 
 use and value; when that is done, it is of little consequence in 
 whom the fee may be invested. The proceeiling must be re- 
 garded as an actual appropriation of the land, including the . 
 possession, the right of possession, and the fee; and when the 
 amount awarded as compensation is paid, the title, the fee, 
 with M'hatever rights may attach thereto, pass to the govern- 
 ment and it becomes henceforth the full owner.'^ There is a 
 distinction between the taking of property for public use and 
 a consequential injury to such property, by reason of some 
 public work; and it has been held that the destruction of ac- 
 cess to land abutting on a navigable river, by the construction, 
 by congress, of a pier on the submerged lands in front of the 
 upland, was not a taking of private property, but only an in- 
 stance of consequential injury to the property of the riparian 
 owner."* "Where, by the construction of a dyke, by the United 
 States in the improvement of the Ohio river, the plaintiff, a 
 riparian owner, was through the greater part of the gardening 
 season deprived of the use of her landing for the shipment of 
 farm products and supplies to her farm, whereby the value of 
 her farm was greatty diminished, it was held that there was 
 no taking of the property, but only a consequential injury."' 
 It was a rule of the common law, that persons appointed or 
 authorized by law to make or improve a public highway are not 
 responsible for consequential damages, if they act within their 
 jurisdiction, and with care and skill. And acts done in the 
 proper exercise of governmental powers, and not directly en- 
 
 98 Kaukauna Water Power Co. ^s Scranton v. Wheeler, 179 U. 
 
 V. Green Bay & Miss. Canal Co., S. 141, 153 (45:126). 
 
 142 U. S. 254, 282 (35:1004). »9 Gibson v. United States, 166 
 
 07 United States v. Lynah, 188 U. S. 269 (41:996). 
 U. S. 445, 485 (47:539). 
 
134 FEDERAL PROCEDURE AT LAW. § 175 
 
 croaehing upon private property, though their consequences 
 may impair its use, are universally held not to be a taking, 
 within the meaning of the constitutional provision, and do not 
 entitle the owner of such property to compensation from the 
 state or its agents, or give him any right of action.^ But some 
 of the states have adopted a constitutional provision, declar- 
 ing that "private property shall not be taken or damaged for 
 public use without just compensation," and it has been held 
 that the introduction of the additional words into the consti- 
 tutional provision, has given to property holders a greater 
 security ; and that under such a constitutional provision a recov- 
 ery may be had in all cases where private property has sustained 
 a substantial damage by the making and using an improve- 
 ment that is public in its character — that it does not require 
 that the damage shall be caused by a trespass, or an actual 
 physical invasion of the owners real estate; but if the con- 
 struction and operation of the railroad or other improvement 
 is the cause of the damage, though consequential, the party 
 may recover.^ 
 
 § 175. Same — Mode of procedure in exercising the power. — 
 In the absence of any provision in the organic law prescribing 
 a contrary course, the mode of exercising the right of eminent 
 domain is in the discretion of the legislature.^ Under the gen- 
 eral grant of jurisdiction, the circuit courts of the United 
 States have jurisdiction of a proceeding brought by the United 
 States to acquire, by eminent domain, land for a custom-house.* 
 A proceeding for condemnation in the circuit court of the 
 United States, under the acf of congress controlling such pro- 
 ceedings, is in substance and effect an action at law, and the 
 jury trial in such proceedings is the same as the ordinary jury 
 trial in a court of record." 
 
 § 176. Same — Compensation. — The "just compensation" 
 made for private property taken for public use, must, under 
 
 1 Northern Transportation Co. s Secombe v. Milwaukee & St. P. 
 V. Chicago, 99 U. S. 635, 641 Ry. Co., 23 "Wall. 108, 119 (23:67). 
 (25:336); Smith v. Corporation *Kohl v. United States, 91 U. S. 
 of 'Washington, 20 How. 135 367, 379 (23:449). 
 
 (15:858). =25 XJ. S. Stat, at L. 357. 
 
 2 Chicago V. Taylor, 125 U. S. « Kohl v. United States, 91 U. S. 
 161, 170 (31:638). 367, 397 (23:449). 
 
§ 177 CONSTITUTIONAL LIMITATIONS, 135 
 
 the provision relating thereto, contained in the fifth amend-, 
 ment to the constitution, be a full and exact equivalent for the 
 property taken; and this excludes the taking into account as 
 an element of compensation any supposed benefit that the 
 owner may receive in common with all the community from 
 the public use to which his private property is appropriated-^ 
 Where lands are condemned for the use of the United States, 
 the goverhmtent discharges its entire duty to the owners of the 
 property by the payment of the amount awarded by the com- 
 missioners, as compensation, into court, pursuant to i'ts order.* 
 § 177. Writ of habeas corpus. — ^Hallam in his constitutional 
 history says: "It cannot be too frequently repeated, that no 
 power of arbitrary detention has ever been known to our con- 
 stitution since the charter obtained at Eunnymede. The writ 
 of habeas corpus has always been a matter of' right. But, as 
 may naturally be imagined, no right of the subject, in his re- 
 lation to the crown, was preserved with greater difficulty. Not 
 only the privy-council in general arrogated to itself a power 
 of discretionary imprisonment, into which no inferior court 
 was to inquire, but commitments by a single counselor appear 
 to have been frequent. These abuses gave rise to a remarkable 
 complaint of the judges, which, though an authentic recogni- 
 tion of the privilege of personal freedom against such irregular 
 and oppressive acts of individual ministers, must be admitted 
 to leave by far too great latitude to the executive government, 
 and to surrender, at least by implication from rather obscure 
 language, a great part of the liberties which many statutes 
 had confirmed.'" The founders of our government led by the 
 light of the history ^° of the aggressions of the English execut- 
 ive upon the liberties of the citizen, declared in the constitution 
 that: "The privilege of the writ of habeas corpus shall not be 
 suspended, unless when in cases of rebellion or invasion the 
 public safety may require it. ' ' ^^ The power to suspend the 
 privilege of the writ is vested in congress ; ^^ that body has as- 
 
 T Monongahela Navigation Co. lo Ex parte Milllgan, 4 Wall. 2, 
 
 V. United States, 148 U. S. 312, 345 142 (18:281). 
 
 (37:463). ^^ U. S. Const, art. I, sec. 9, cl. 2. 
 
 8 United States v. Dunnlngton, 12 Ex parte Bellman and Ex 
 
 146 U. S. 338, 354 (36:996). parte Swartout, 4 Cranch, 96 
 
 sHallam's Const. Hist. England, (2:561); Ex parte John Merry- 
 
 139, 140. man, Taney 246, Fed. Cas. No. 
 
136 FEDERAL PEOCEDUEE AT LAW. § 177 
 
 serted the power by once actually exercising it.^* The sus- 
 pension of the privilege of the writ of habeas corpus does not 
 suspend the writ itself. The writ issues as a matter of course ; 
 and on the return made to it, the court decides whether the 
 party applying is denied the right of proceeding any further 
 with it." 
 
 9,487; 3 Story's Com. on the Con- 142 (18:281); 12 IT. S. Stat, at 
 stitution, sec. 1336. L". 755. 
 
 13 Ex parte Milligan, 4 Wall. 2, nEx parte MlUigan, 4 Wall. 2, 
 
 142 (18:281). 
 
CHAPTER VI. 
 
 LIMITATIONS IMPOSED BY THE FEDERAL CONSTITUTION 
 UPON THE STATES. ^ 
 
 (a) The Effect of the Late 
 Amendments Upon the State 
 AND Fedekal Governments 
 AND Theik Relations Toward 
 Each Other, and Upon the 
 Relations of Each Toward 
 the People. 
 
 S 178. The purposes of this chap- 
 ter. 
 
 179. Principles of the govern- 
 
 ment as settled prior to 
 the adoption of the late 
 amendments. 
 
 180. Same — Divided sovereign- 
 
 ty — The doctrine of Mar- 
 shall, Taney and Waite. 
 
 181. Same — Municipal sover- 
 
 eignty of the states de- 
 fined. 
 
 182. Same — Same— State's pow- 
 
 er of taxation. 
 
 183. Same — Same — Taxation of 
 
 property employed in in- 
 terstate commerce. 
 
 184. Same — Same — Taxation of 
 
 intangible property. 
 
 185. Same — Same — Same. 
 
 186. Same — Same — Power of 
 
 state to fix situs of stock 
 of corporation for pur- 
 poses of taxation. 
 
 187. Same — Same — Power of 
 
 state to tax personal prop- 
 erty without regard to 
 domicile of owner. 
 
 § 188. Same — Same — Inheritance 
 tax. 
 
 189. System of government not 
 
 changed by the adoption 
 of the late amendments. 
 
 190. The police power of the 
 
 states preserved intact. 
 
 191. Same— State police regula- 
 
 tions incidentally affect- 
 ing interstate and 'for- 
 eign commerce — ^Rights 
 secured by the constitu- 
 tion. 
 
 192. Same — Sunday laws. 
 
 193. Same — Power of the state 
 
 to regulate the use of 
 property "affected with a 
 public interest." 
 
 194. Same — Regulation of rail- 
 
 roads. 
 
 195. Same — Same — The state 
 
 may prohibit the consoli- 
 dation of parallel railway 
 lines. 
 
 196. Same — Maintaining safety 
 
 of railroad crossings. 
 
 197. Same — Limiting hours of 
 
 labor iri unhealthy em- 
 ployments. 
 
 198. Same — State statute requir- 
 
 ing company "store ord- 
 ers" to be redeemed in 
 cash. 
 
 199. Same — Health regulations. 
 
 200. Same — Power of municipal 
 
 corporations to impose li- 
 
138 
 
 PEDEEAIi PEOCEDUEE AT LAW. 
 
 cense fee on interstate 
 telegraph lines to pay- 
 cost of police supervision. 
 § 201. Same — Power of the state 
 to protect local com- 
 merce and local indus- 
 tries from unlawful re- 
 straints and monopolies. 
 
 202. Same — Same — Distinction 
 
 between commerce and 
 manufacture. 
 
 203. Same — Growth and expan- 
 
 sion of the police power 
 since the adoption of the 
 late amendments. 
 
 204. The power of the states to 
 
 maintain their own in- 
 ternal polity and judicial 
 systems not taken away 
 by the adoption of the 
 fourteenth amendment. 
 
 205. Same — Sovereignty for pro- 
 
 tection of fundamental 
 rights rests with the 
 states — Not in the federal 
 government. 
 206i Same — Same — Same — In- 
 dividual invasion of the 
 rights guarantied by the 
 fourteenth amendment. 
 
 207. Same^Same — Same — Pro- 
 
 tection of the elective 
 franchise. 
 
 208. Same — Power of the states 
 
 to maintain their own ju- 
 dicial procedure. 
 
 (6) The Intent and Application 
 or THE lyATE Amendments 
 Worked Out by the "Gead- 
 I7AL Process of Judicial In- 
 clusion and Exclusion." 
 
 209. Judicial method of consti- 
 
 tutional construction — 
 Early constitutional his- 
 tory. 
 
 210. Same — Modern method ^- 
 
 "Judlcial inclusion and 
 exclusion." 
 
 § 211. Same — Same — Same — 
 usual i)olnts of alleged 
 conflict — Frivolous con- 
 tentions of litigants. 
 
 (c) Citizenship — National aud 
 State. 
 
 212. Citizenship defined. 
 
 213. Same — The African race — 
 
 Dred Scott case. 
 
 214. Two sources of citizen- 
 
 ship. 
 
 215. Natural-born citizens^rNot 
 
 defined' by the constitu- 
 tion — ^Resort had to the 
 common law. 
 
 216. Same — Common law rule. 
 
 217. Same — Common law rule 
 
 prevailed in American 
 colonies and under orig- 
 inal constitution — Slave 
 population excepted. 
 
 218. Same — Same — The Indian 
 
 tribes. 
 
 219. Same — Indian tribes not 
 
 citizens by birth since 
 fourteenth amendment. 
 
 220. The fourteenth amendment 
 
 affirms and extends the 
 common law rule of 
 citizenship by birth. 
 
 221. Same — Chinese person bom 
 
 in the United States. 
 
 222. Same — Meaning oif the 
 
 qualifying words; "And 
 subject to the jurisdiction 
 thereof." 
 
 223. The principle upon which 
 
 foreign ministers are ex- 
 empt from local jurisdic- 
 tion and their children 
 excluded from citizenship 
 by birth. 
 
 224. Same — Same — The doctrine 
 
 of Chief Justice Marshall 
 re-afflrmed by recent de- 
 cision. 
 
 225. Same — Same — Consuls and 
 
LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 339 
 
 their children not within , 
 the principle. 
 § 226. Principle upon which chil- 
 dren born in hostile occu- 
 pation are excluded from 
 citizenship. 
 
 227. Same — Person born within 
 
 the seceded states. 
 
 228. Resume as to the qualify- 
 
 ing words o fthe citizen- 
 ship clause of the four- 
 teenth amendment. 
 
 229. Citizenship by naturaliza- 
 
 tion. 
 
 230. Same — Citizenship of mar- 
 
 ried woman follows that 
 of her husband. 
 
 231. "Collective naturalization" 
 
 by the admission of new 
 states into the union. 
 
 232. Same — Texas admitted into 
 
 the union with her popu- 
 lation as it stood. 
 
 233. "Collective naturalization" 
 
 by treaty or statute. 
 
 234. Dual citienship. 
 
 235. The fourteenth amendment 
 
 added nothing to the 
 rights of citizenship. 
 
 236. Expatriaticfon — Right of 
 
 declared by federal stat- 
 ute. 
 
 237. Same — Not accomplished 
 
 Jby mere declaration of 
 intention, 
 (d) The Peivubxjes and Immuni- 
 ties or THE Citizens of the 
 Seveeai States. 
 
 238. Complex nature of those 
 
 rights denominated "Priv- 
 ileges and immunities of 
 citizens." 
 
 239. Privileges and immunities 
 
 of citizens not defined in 
 the constitution. 
 
 240. Privileges and immunities 
 
 of citizens defined by ju- 
 dicial inclusion and ex- 
 clusion only. 
 
 § 241. History of the words "Priv- 
 ileges and immunities of 
 citizens" — CJolonial char- 
 ters. 
 
 242. — Same — Declaration of 
 
 rights of 1774. 
 
 243. Same — Provisions of the 
 
 articles of confederation. 
 
 244. Privileges and immunities 
 
 of the citizens of the 
 several states under the 
 constitution. 
 
 245. Same — Defined by Justice 
 
 Washington. 
 
 246. Same — Defined by Justice 
 
 Field. 
 
 247. Same — Defined by Justice 
 
 Miller. 
 
 248. Same — Commercial equal- 
 
 ity. 
 
 249. Same — Equality of right in 
 
 assets of insolvent debtor. 
 
 250. Same — Protection of per- 
 
 sonal liberty. 
 
 251. Same — Same — Liberty of 
 
 contract. 
 
 252. Same — Corporations not 
 
 citizens within the mean- 
 ing of this constitutional 
 provision. 
 
 253. Same — Common property 
 
 of the state — Fisheries. 
 
 254. Same^Marital rights. 
 
 255. Same — Statute of limita- 
 
 tions not running in fa- 
 vor of party out of the 
 state. 
 
 256. Same — Intention of the 
 
 constitutional provision. 
 
 (e) The Privileges and Immuni- 
 ties OP Citizens of the Unitbu) 
 States Not to be Abridged. 
 
 257. Privileges and immunities 
 
 of citizens of the United 
 States protected by the 
 fourteenth amendment — 
 Limitation upon the 
 states. 
 
140 
 
 FEDERAL PROCEDURE AT LAW. 
 
 5 258. Privileges and immunities 
 of citizens of the United 
 States partially enumer- 
 ated by the supreme 
 court. 
 
 259. What are not privileges 
 
 and immunities of citi- 
 zens of the United States 
 —Right to vote. 
 
 260. Same — Right to practice 
 
 law in state courts. 
 
 261. Same — Right to sell intox- 
 
 icating liquors. 
 
 262. Same — State statutes pro- 
 
 habiting the carrying of 
 dangerous weapons. 
 
 263. Same — ^State laws requir- 
 
 ing separation of the ra- 
 ces on railway trains. 
 
 264. Same — State statute regu- 
 
 lating the slaughter of 
 animals. 
 
 265. Same — State judicial . pro- 
 
 cedure. 
 
 266. Same — Same — Jury in civil 
 
 cases. 
 
 267. Same — ^Same — Form of ac- 
 
 tion in civil cases. 
 
 268. Corporations not citizens 
 
 within the meaning of the 
 constitutional provision. 
 </■) No State to Deprive Ant 
 Pebson of Life, Liberty, or 
 Property, Without Due Pro- 
 cess op Law. 
 
 269. The "due process of law" 
 
 of the state — Meaning of 
 the constitutional provi- 
 sion. 
 
 270. Same — The states control 
 
 their own judicial pro- 
 cedure — ^Law a progres- 
 sive science. 
 
 271. Same — First ten amend- 
 
 ments no restraint on the 
 states. 
 
 272. Same — Same —Criminal 
 
 prosecution upon infor- 
 mation. 
 
 § 273. Same — Same — Criminal 
 trial by a jury of less' 
 than twelve men. 
 
 274. Same — Same — Capital exe- 
 
 cution by electricity. 
 
 275. Same — Same — Confronting 
 
 accused with witnesses. 
 
 276. Same — Same — Unreason- 
 
 able searches and seiz- 
 ures — ^Evidence. 
 
 277. Same — Same — Trial with- 
 
 out jury in civil cases. 
 
 278. Same — Same — Contempt 
 
 trial without a jury. 
 
 279. Same — Same — Form of ac- 
 
 tion or proceedings. 
 
 280. Same — Same — Notice. 
 
 281. Same — Eminent domain. 
 
 282. Same — Same — ^Whether a 
 
 taking is for a public use 
 presents a federal ques- 
 tion. 
 
 283. Same — Same — Taking for 
 
 private use. 
 
 284. Same — Same — State laws 
 
 fixing destructive rates 
 for common carriers. 
 
 285. Same — State law requiring 
 
 transfer facilities at rail- 
 road intersections. 
 
 286. Same — Same — Limitations 
 
 of the fourteenth amend- 
 ment operate on all in- 
 strumentalities of the 
 state government. 
 
 287. Same — State statute deny- 
 
 ing non-resident corpora- 
 tion equality in distribu- 
 tion of insolvent's assets. 
 
 288. Due process of law in 
 
 state taxation — Strict ju- 
 dicial procedure not re- 
 quired. 
 
 289. Same — When notice and an 
 
 opportunity to be heard 
 are requisite. 
 
 290. Same — Same— What is due~ 
 
 process of law in taxar 
 tion — General rule. 
 
LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 141 
 
 i 291. Same — Same— Same — No- 
 tice. 
 
 292. Same — Same — -Local assess- 
 
 ments — rule of apportion- 
 ment. 
 
 293. Same — Same — Same — 
 
 Frontage rule — Norwood 
 V. Parker. 
 
 294. Same — Same — Taxing non- 
 
 resident mortgagee's in- 
 terest in the mortgaged 
 land. 
 
 295. Same — Same — ■ Classifica- 
 
 tion for taxation. 
 
 296. 'Same — Same — Corpora- 
 
 tions. 
 
 297. Same — Same — State consti- 
 
 tution and laws on taxa- 
 tion must be consiaered 
 together. 
 
 298. Same — Taxing power vested 
 
 in the legislature. 
 
 (g) Equal Protection of the 
 Laws. 
 
 299. The states prohibited deny- 
 
 ing equal protection of 
 the laws. 
 
 300. Corporations are persons 
 
 within the prohibition. 
 
 301. Classification for purposes 
 
 of legislation. 
 
 302. Same-T-Rules stated by su- 
 
 preme court of Wisconsin. 
 
 303. Same — State statute abol- 
 
 ishing common law fel- 
 low-servant rule in per- 
 sonal injury cases. 
 
 304. Same — State statutes mak- 
 
 ing railroad companies 
 absolutely responsible for 
 damages by fire from 
 their engines. 
 
 305. Same — State statute mak- 
 
 ing proof of fire by rail- 
 road engine prima facie 
 evidence of negligence — 
 Attorneys fees. 
 
 § 306. Same— When statute allow- 
 ing attorney's fee is pen- 
 alty for failure to pay 
 debt. 
 
 307. Same — State statute re- 
 
 quiring railroad compan- 
 ies to fence track — Dou- 
 ble damages for killing 
 stock. 
 
 308. Same — Regulation of ware- 
 
 houses and elevators. 
 
 309. Same — Life and health in- 
 
 surance companies — State 
 statute imposing dam- 
 ages and attorneys fees 
 for failure to pay policy 
 when due. 
 
 310. Same — Limiting hours of 
 
 labor in mines. 
 
 311. Same — Illinois trust act. 
 
 312. Taxation and the equal pro- 
 
 tection of the laws. 
 
 313. Sam© — The unit rule in 
 
 the taxation of interstate 
 commerce lines. 
 315. Same — Same — Method of 
 assessment. 
 
 315. Sama — Power of the state to 
 
 fix the situs of the transi- 
 tory property of railroads 
 for purposes of taxation. 
 
 316. Same — ^Power of the state 
 
 to tax railroad companies 
 to pay salaries and ex- 
 penses of railroad com- 
 mission. 
 
 317. Same — Classification. 
 
 318. Power of the state to im- 
 
 pose conditions of admis- 
 sion upon foreign corpo- 
 rations. 
 
 319. Civil rights — Exclusion of 
 
 negroes from grand and 
 petit juries. 
 
 320. The fourteenth amendment 
 
 does not require state ju- 
 dicial procedure to be 
 uniform. 
 
142 
 
 FEDERAL PROCEDURE AT LAW. 
 
 I 321. Power of the state to 
 classify cities for the reg- 
 istration of voters. 
 
 322. State law imposing penalty 
 
 on railroad companies for 
 disseminating Johnson 
 grass seed. 
 
 323. The design of the "equal 
 
 protection" clause of the 
 fourteenth amendment 
 
 324. Conspiracy to deprive per- 
 
 sons of the equal protec- 
 tion of the laws — Section 
 5519 TJ. S. Revised Stat- 
 utes void. 
 
 (ft) The Right of Citizens of 
 THE UNiTEa) States To Vote 
 Not to be Abbidged on Ac- 
 cotTNT of Race, Color, ob Pre- 
 vious Condition of Servitude. 
 
 325. The fifteenth amendment 
 
 does not confer the right 
 to vote. 
 
 326. The right to vote derived 
 
 from the state. 
 
 327. The fifteenth amendment 
 
 a limitation upon the fed- 
 eral and state govern- 
 ments. 
 
 328. Same — The only inhibited 
 
 abridgement is one based 
 on race, color, or previous 
 condition of servitude. 
 
 (t) Laws Impaibing the Obliga- 
 tion OF Contracts. 
 
 329. No state to pass law im- 
 
 pairing obligation of con- 
 tracts — Prohibition upon 
 the states — Method of en- 
 forcement. 
 
 330. Same — Same — Power of 
 
 United States circuit 
 courts to declare such 
 statutes void. 
 
 331. The federal supreme court 
 
 will determine for itself 
 whether there is a con- 
 tract and whether Its ob- 
 ligation is impaired. 
 
 § 332. Contract defined. 
 
 333. Same — Charters of- private 
 
 corporations. 
 
 334. Same — Same — Rule for con- 
 
 struing legislative grants. 
 
 334a. The prohibition protects all 
 contracts, without regard 
 to their nature or the 
 character of the parties. 
 
 3346. Marriage not within the 
 prohibition. 
 
 335. "Obligation of contract" de- 
 
 fined. 
 
 336. Same — Axioms in American 
 
 jurisprudenca 
 
 337. Changing the remedy. 
 
 338. Same — Rule stated by Mr. 
 
 Justice Bradley. 
 
 339. Change in statute of limita- 
 
 tions. 
 
 340. Judgment for tort not a 
 
 contract. 
 
 341. Withdrawing the power of 
 
 taxation from municipal 
 corporations impairs con- 
 tract, when. 
 
 342. Increasing exemption from 
 
 execution sale. 
 
 343. Laws altering terms of con- 
 
 tracts. 
 
 344. What are laws? 
 
 345. Same — Judicial decisions. 
 
 346. Same — Same — Change of 
 
 state decision. 
 
 347. Same— Same. 
 
 348. The constitutional inhibi- 
 
 tion prospective only. 
 
 (;■) No State to Emit Bills of 
 Credit. 
 
 349. Bills of credit defined. 
 
 350. Same— Defined by Chief 
 
 Justice Marshall. 
 
 (fc) Bills of Attaindeb and Ex 
 Post Facto Laws. 
 
 351. Bills of attainder and ex 
 
 post facto laws. 
 
§ 178 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 143 
 
 (Z) No Imposts ob Duties to be 
 Laid by the States on Im- 
 ports OK Exports Except fob 
 Executing Inspection Laws. 
 § 352. The state prohibited from 
 taxing imports and ex- 
 ports — Exception. 
 
 353. Imports and exports de- 
 
 fined. 
 
 354. Impost defined. 
 
 355. Inhibition does not apply 
 
 to Interstate shipments. 
 
 356. Right of the importer to 
 
 sell in tie original pack- 
 ages without taxation by 
 the state. 
 
 357. Same — Brown v. Maryland. 
 
 358. Same — ^What is the "origi- 
 
 nal package." 
 
 359. Tax on sales of imports 
 
 made by auctioneer. 
 "360. Effect of a sale of imported 
 articles. 
 
 361. Duty on exports defined. 
 
 362. Cost of executing inspection 
 
 laws — Exception to inhibi- 
 tion. 
 
 (m) Tonnage Duties. 
 
 363. The states prohibited from 
 
 levying tonnage tax. 
 
 § 364. Tonnage defined. 
 
 365. Tonnage tax defined. 
 
 366. 'The prohibition applies to 
 
 vessels engaged in local 
 commerce. 
 
 367. The prohibition, does not ex- 
 
 tend to property tax on 
 vessels. 
 
 368. Charges for the use of local 
 
 aids to commerce — ^Wharf- 
 age. 
 
 369. Same — Same. 
 
 370. Same — Same — ^Wbat is not 
 
 jvharfage. 
 
 371. Tonnage tax cannot be lev- 
 
 ied to defray cost of exe- 
 cuting quarantine regula- 
 tions. 
 
 372. Whether a'charge is wliarf- 
 
 age or a tonnage duty is 
 a question of fact and 
 law. 
 
 373. Whether wharfage is rea- 
 
 sonable must be deter- 
 mined by the local law. 
 
 374. Purpose and design of the 
 
 constitutional prohibition 
 against state tonnage du- 
 ties. 
 
 (a) The Effect of the Late Amendments upon the State 
 AND Federal Governments and Their Relations To- 
 ward Each Other, and Upon the Relations of Each 
 Toward the People. 
 
 § 178. The purposes of this chapter. — The purposes of this 
 chapter are: (1) 4^o state the general effect, as developed by 
 the decisions of the supreme court, produced by the adoption of 
 the thirteenth, fourteenth and fifteenth amendments upon the 
 dual system of government in this country, as it had been 
 theretofore established and settled, including the effect of those 
 amendments upon the state and federal governments and their 
 relations toward each other and the relations of each toward 
 the people of the several states; (2) to develop some of the 
 practical results reached, and rules of law esta'blished by the 
 decisions of the supreme court construing those amendments, 
 
144 " federaij peoceduee at law. § 179 
 
 as to their operation as limitations upon the states, and their 
 influence upon individual rights; (3) to state some of the 
 practical results reached, and rules of law established by the 
 decisions in the construction of the provisions of the constitu- 
 tion, as originally adopted, imposing limitations upon the state ; 
 and (4) by this means to lay the foundation for developing, in' 
 subsequent parts of this work, the original and appellate juris- 
 diction of the federal judiciary in cases involving a fede^'al 
 question. On account of the great number and variety of 
 novel and practical questions arising in legislation out of the 
 late amendments, and their overshadowing importance, and for 
 convenience of arrangement, the limitations contained in the 
 late amendments are here considered in advance of a consider- 
 ation of the limitations found in the constitution as originally 
 adopted. 
 
 § 179. Principles of the government as settled prior to the 
 adoption of the late amendments. — ^Prior to the adoption of 
 the thirteenth, fourteenth and fifteenth amendments to the 
 federal constituton, the great and fundamental principles of 
 the American system of government had been explained, de- 
 fined and settled, by the decisions of the su^preme court of the 
 United States, which tribunal is, by the organic law, vested 
 with the absolute right of decision, in the last resort, of all 
 federal questions.^ Before entering upon an examination of 
 the limitations imposed upon the states by the amendments 
 above named, it is deemed convenient, if not expedient, to 
 state some of the principles of the government which had been 
 settled by the adjudications prior to their adoption, as a 
 means of facilitating their examination, and ilUistrating their 
 effect upon the structure of the government. Such a method 
 of investigation and examination will obviate the necessity of 
 "the long progression of the thoughts to remote and first prin- 
 ciples in every case."^ The following are spme of the princi- 
 ples so settled by the previously decided cases : 
 
 1. The federal constitution created and established a dual 
 government or complex polity, in which the attributes and 
 powers of sovereignty were divided and partitioned between 
 the federal government and the state governments. 2. The 
 
 1 Martin v. Hunter's Lessees, 1 (5:252); Ableman v. Booth, 21 
 Wheat. 304, 382 (4:97); Cohens v. How. 506, 526 (16:169). 
 Virginia, 6 Wlieat. 264, 448 2 Locke, Concerning The Under- 
 
 standing, 502. 
 
§ 179 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 145 
 
 attributes and powers of national sovereignty were by the 
 constitution surrendered to, and vested in tlie federal govern- 
 ment: the federal government is a government of delegated, 
 enumerated and limited powers; but it is a national govern- 
 ment, and, for the purposes of executing the powers confided 
 to it by the constitution, it may legitimately control all in- 
 dividuals and governments within the American territory^ 
 3. The attributes and powers of municipal sovereignty, includ- 
 ing the poli'ee power, were, by the constitution, reserved to- 
 the states ; this municipal sovereignty embraces all the power* 
 of government not l?y the constitution surrendered to the fed- 
 eral government nor prohibited by it to the states. 4. The 
 federal constitution, and the laws of the United States made 
 in pursuance thereof, and all treaties made or which shall be 
 made under the authority of the United States, are the su- 
 preme law of the land ; but an act of congress which is re- 
 pugnant to the constitution is absolutely null and void, and 
 constitutes no part of the law of the land. 5. The constitution 
 and laws of a state, when repugnant to the constitution and 
 valid laws and treaties of the United States, are absolutely 
 void, and may be so declared by the supreme judicial power 
 of the federal government. 6. The federal and state govern- 
 ments, each, is sovereign and supreme within the sphere of gov- 
 ernmental action assigned to it by the constitution; but when 
 a conflict arises between the authority of the federal govern- 
 ment and the authority of a state government, the latter must 
 yield to the supremacy of the former, until the validity of th© 
 conflicting claims can be finally determined by the .iudieial 
 power of the national government. 7. Under the federal cpn- 
 stittition, as expounded by the supreme court, the powers of 
 government have been classified, as follows: (1) Powers which 
 belong exclusively to the states ; (2) Powers which belong ex- 
 clusively to the national government; (3) Powers which may 
 be exercised concurrently and independently by both; and 
 (4) Powers which may be exercised by the states, but only 
 until congress shall see fit to act in the exercise of them, when 
 the authority of the state retires and lies in abeyance.' 8. The 
 
 3 Martin v. Hunter's Lessee, 1 Wheat. 1, 240 (6:23); Brown v. 
 
 Wheat. 304, 382 (4:79); Cohens Maryland, 12 Wheat. 419 (6:678); 
 
 v. Vlrgiijia, 6 Wheat. 264, 448 License Cases, 5 How. 504 
 
 (5:252); Gibbons v. Ogden, 9 (12:256); New York v. Miln, 11 
 
 10 
 
146 PEDEEAL PROCEDURE AT LAW. § 180 
 
 first ten amendments to the federal constitution are limitations 
 on the federal government, and impose no restraints, what- 
 ever, upon the states.* 
 
 § 180. Same — Divided sovereignty — The doctrine of Mar- 
 shall, Taney and Waite.— In a legal treatise, confessedly based 
 ia all principal matters, upon the decisions of the supreme 
 court of the United States, we are not, in anywise, concerned 
 with the discussions of statesmen and publicists, as to the seat 
 of sovereignty in the American system of government, the sole 
 purpose being to state the doctrine of the supreme court upon 
 that subject; and it may be safely afSrmed, that the court has, 
 from the first, held, without variableness or shadow of turning, 
 to the doctrine of a divided sovereignty. 
 
 In a great case involving a direct conflict of authority, be- 
 tween the United States and the State of Maryland, and also 
 involving the vital principles of the government, the powers 
 of the state and federal government, and their relations to 
 each other, under the constitution. Chief Justice Marshall said : 
 "The creation of a corporation, it is said, appertains to sover- 
 eignty. This is admitted. But to what portion of sovereignty ? 
 Does it belong to one more than to another? In America, the 
 powers of sovereignty are divided between the government 
 of the union and those of the states. They are each sovereign, 
 with respect to the objects committed to it, and neither is sov- 
 ereign with respect to the objects committed to the other. "° 
 
 In a case involving a conflict of authority between the United 
 States and the state of Wisconsin, and in which the state su- 
 preme court had discharged upon writ of habeas corpus a pris- 
 oner held in custody under a conviction and sentence of a 
 United States district court held in that state. Chief Justice 
 Taney, after stating the case, said: "The judges of the supreme 
 
 Pet. 102 (9:648); M'Culloch v Sheboygan, 2 Black. 510, 518 
 
 Maryland, 4 Wheat. 316, 437 (4: (17:305); American Ins. Co. v. 
 
 579); Ableman v. Booth, 21 How. 356 Bales Cotton, 1 Pet. 511, 542 
 
 506, 526 (16:169); Dred Scott v. (7:242).! 
 
 Sanford, 19 How. 393, 633 (15: * Barron v. Baltimore, 7 Pet. 243 
 
 691); Dobbins v. Comrs., 16 Pet. (8:672); Fox v. Ohio, 5 How. 410 
 
 435 (10:1022) ; Cooley v. Port War- (12:213). 
 
 dens, 12 How. 299 (13:996); Wil- o M'Culloch v. Maryland, 4 
 
 son V. Black Bird Creek Marsh Wheat. 316, 437 (4:579). 
 
 Co., 1 Pet. 245 (7:413); Oilman v. 
 
§ 180 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 147 
 
 court of Wisconsin do not distinctly state from what source 
 they suppose they have derived this judicial power. There 
 can be no such a thing as judicial authority, unless it is con- 
 ferred by a government or sovereignty; and if the judges and 
 courts of Wisconsin possess the jurisdiction they claim, they 
 must derive it either from the United States or the state. It 
 certainly has not been conferred on them by the United States ; 
 and it is equally clear it was not in the power of the state to 
 confer it, even if it had attempted to do so; for no state can 
 authorize one of its judges or courts to exercise judicial power, 
 by habeas corpus or otherwise, within the jurisdiction of an- 
 other and independent government. And although the state 
 of Wisconsin is sovereign within its territorial limits to a cer- 
 tain extent, yet that sovereignty is limited and restricted by 
 the constitution of the United States. And the powers of the 
 general government, and of the state, although both exist and 
 are exercised within the same territorial limits, are yet separate 
 and distinct sovereignties, acting separately 'and independently 
 of each other, within their respective spheres. And the sphere 
 of action appropriated to the United States is as far beyond 
 the reach of the judicial process issued by a state judge or a 
 state court, as if the line of division was traced by landmarks 
 visible to the eye. And the state of Wisconsin had no more 
 power to authorize these proceedings of its judges and courts, 
 than it would have had if the prisoner had been confined in 
 Michigan, or in any other state of the union, for an offense 
 against the laws of the state in which he was imprisoned. 
 * * * The constitution was not formed merely to guard the 
 states against danger from foreign nations, but mainly to se- 
 cure union and harmony at home; for if this object could be 
 attained, there would be but little danger from abroad; and to 
 accomplish this purpose, it was felt by the statesmen who 
 framed the constitution, and by the people who adopted it, that 
 it was necessary that many of the rights of sovereignty which 
 the states then possessed should be ceded to the general govern- 
 ment ; and that, in the sphere of action assigned to it, it should 
 be supreme and strong enough to execute its own laws by its 
 .own tribunals, without interruption from a state or from state 
 authorities." " In a case decided by the supreme court at the 
 
 e Ableman v. Booth, 21 How. 506, case, the same learned judge, 
 .626 (16:169). In the Dred Scott speaking of the federal govern- 
 
148 FEDERAL PROCEDURE AT LAW. § 181 
 
 December term, 1871, involving a conflict of authority between 
 the federal government and the state of Wisconsin, Field, Jus- 
 tice, quoted with approval the above opinion of Chief Justice 
 Taney, and announced, without qualification the same doe- 
 trine ; ' and throughout the decisions of that court the principle 
 is referred to as an axiom of the government.^ 
 
 § 181. Same — Municipal sovereignty of the states defined. — 
 The distinction between national sovereignty and municipal 
 sovereignty is not an arbitrary one, but it naturally arises out 
 of the nature of government, and has often been recognized by 
 the United States supreme court as a distinction which marks 
 the boundary line between federal and state power." In one 
 case, the court, discussing the power of the United States in the 
 territories, said: 
 
 "By the constitution, as is now well settled, the United States,^ 
 having rightly acquired the territories, and being the only gov- 
 ernment which can impose laws upon them, have the entire 
 dominion and sovereignty, national and municipal, federal and 
 state, over all the territories, so long as they remain in a ter- 
 ritorial condition. ' ' ^° 
 
 While the municipal sovereignty is, from its nature, incapa- 
 ble of exact definition or' limitation, and "it is much easier to- 
 perceive and realize the sources of it, than to mark its boundar- 
 ies, or prescribe limits to its exercise," yet the supreme court 
 has ma'de efforts to define it; in a case involving the validity 
 of an act of the state of New York regulating the landing of 
 passengers from any foreign country, it is defined as follows : 
 
 "We choose rather to plant ourselves on what we consider 
 impregnable positions. They are these: That a state has the 
 
 ment, said: "For although it Is (7:243); Benner v. Porter, 9 How. 
 
 sovereign and supreme in its ap- 235, 242 (13:119); Cross v. Harrl- 
 
 pointed sphere of action, yet it son, 16 How. 164, 193 (14:889); 
 
 does not possess all the powers Bank v. Yankton Co., 101 IJ. S. 
 
 which usually belong to the sov- 129, 133 (25:1046); Murphy v. 
 
 ereignty of a nation." Ramsey, 114 T7. S. 15, 44 (29:47); 
 
 7 United States v. Tarble, 13 Mormon Church v. United States,. 
 Wall., 397, 413 (20:597). 136 U. S. 1, 43 (34:478); McAllis- 
 
 8 United States v. Cruikshank, ter v. United States, 174, 181 
 92 U. S. 542 (23:588). (35:691); Shively v. Bowlby, 152 
 
 aPoUard v. Hogan, 3 How. 212, U. S. 1, 58 (38:331). 
 235 (11:565); American Ins. Co. lo Shively v. Bowlby, 152 U. S. 
 
 V. 356 Bales Cotton, 1 Pet. 511, 542 1, 58 (38:331). 
 
§ 181 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 149 
 
 same undeniable and unlimited power over all pe;'sons and 
 things within its territorial limits, as any foreign nation, where 
 the jurisdiction is not surrendered or restrained by the consti- 
 tution of the United States. That, by virtue of this, it is not 
 only the right, but the bounden and solemn duty of a state, to 
 advance the safety, happiness and prosperity of its people, and 
 to provide for the general welfare, by any and every ac,t of leg- 
 islation which it may deem conducive to those ends, where the 
 power over the particular subject, or the manner of its exercise 
 is not surrendered or restrained in the manner just stated. 
 That all those powers which relate to merely municipal legisla- 
 tion, or what may, perhaps, more properly be called internal 
 police, are not thus surrendered or restrained ; and that, conse- 
 quently, in relation to these, the authority of the state is com- 
 plete, unqualified and exclusive. "We are aware that it is at 
 all times difficult to define any subject with proper precision 
 and accuracy; if this be so in general, it is emphatically so in 
 relation to a subject so diversified and multifarious as the one 
 which we are now considering. If we were to attempt it, we 
 should say that every law came within this description which 
 concerned the welfare of the whole people of a state, or any in- 
 dividual within it, whether it related to their rights, or their 
 duties; whether it respected them as men, or as citizens of the 
 state; whether in their public or private relations; whether it 
 related to the rights of persons or property of the whole people 
 of a state, or of any individual within it ; and whose operation 
 was within the territorial limits of the state, and upon the per- 
 sons and things within its jurisdiction. " " 
 
 Municipal sovereignty is sometimes regarded as synonymous 
 with the "police power," which is defined by Chief Justice 
 Taney as follows : 
 
 "But what are the police powers of a state? They are noth- 
 ing more nor less than the powers of government inherent in 
 every sovereignty to the extent of its dominions. And whether 
 a state passes a quarantine law, or a law to punish offenses, or 
 to establish courts of justice, or requiring certain instruments 
 to be recorded, or to regulate commerce within its own limits, 
 in every case it exercises the same power; that is to say, the 
 power of sovereignty, the power to govern men and things 
 
 11 New York v. Miln, 11 Pet. 102 (9:648). 
 
150 FEDERAL PROCEDURE AT LAW. § 182 
 
 within the limits of its dominion. It is by virtue of this power 
 that it legislates. " ^^ 
 
 In a great case, Chief Justice Marshall, drawing the line be- 
 tween interstate commerce, which is subject to the regulation 
 of congress, and internal or domestic commerce, and over which 
 congress can exercise no control, said : 
 
 ' ' The genius and character of the whole government seems to 
 be, that its action is to be applied to all the external concerns 
 of the nation, and those internal concerns which affect the 
 states generally ; but not to those which are completely within 
 a particular state, which do not affect other states, and with 
 which it is not necessary to interfere, for the purpose of execut- 
 ing some of the general powers of the government. The com- 
 pletely internal commerce of a state, then, may be considered 
 as reserved for the state itself. ' ' And he stated that inspection 
 laws, while having a remote and considerable influence on inter- 
 state, commerce, ' ' form a portion of that immense mass of legis- 
 lation which embraces everything within the territory of, a 
 state not surrendered to the general government ; all which can 
 be most advantageously exercised by the states themselves. 
 Inspection laws, quarantine laws, health laws of every descrip- 
 tion, as well as laws for regulating the internal commerce of a 
 state, and those which respect turnpikes, roads, ferries, are 
 component parts of this mass. ' ' ^' The state, in the exercise of 
 its, municipal sovereignty, may create, establish, maintain and 
 regulate all those civil institutions which are essential to the 
 preservation of good government, and the security, education 
 and welfare of the people, and may modify and change them, 
 as circumstances require.^* 
 
 § 182. Same — Same — State's power of taxation. — The impo- 
 sition, modification, and removal of taxes, and the exemption 
 of property from such burdens, are an ordinary exercise of the 
 power of state sovereignty." The taxing power of a state is 
 one of its attributes of sovereignty; it exists independently of 
 the constitution of the United States, and underived from that 
 instrument ; it may be exercised to an unlimited extent upon all 
 
 12 License Cases, 5 How. 583 i* Dartmouth College v. Wood- 
 (12:291, 292). ward, 4 Wheat. 627, 629 (4:657). 
 
 13 Gibbons v. Ogden, 9 Wheat i5 Oilman v. Sheboygan, 2 Black, 
 203 (6:72). 510, 518 (17:305). 
 
§ 183 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 151 
 
 property, trades, business and avocations existing or carried on 
 within the territorial boundaries of the state, except so far as it 
 has been surrendered to the federal government, either ex- 
 pressly or by necessary implication. Before the adoption of 
 the constitution of the United States, each of the states pos- 
 sessed unlimited power to tax, either directly or indirectly, all 
 persons and property within their jurisdiction, alike by tax on 
 polls, or duties on internal production, manufacture or use, ex- 
 cept so far as such taxation was inconsistent with certain treat- 
 ies that had been made; and the constitution contains no ex- 
 press restriction of this power, other than a prohibition to lay any 
 imposts or duties on imports or exports, except what may be abso- 
 lutely necessary for executing the states* inspection laws. The 
 state's power of taxation is concurrent with the taxing power 
 of the federal government, and in case of a tax upon the same 
 subject by both governments, the claim of the United States as 
 the supreme authority must be preferred ; but with this qualifi- 
 cation, the state's power is absolute. The extent to which the 
 power shall be exercised, the subjects upon which it shall be 
 exercised, and the mode in which it shall be exercised, are all 
 equally within the discretion of the legislatures to which the 
 states commit the power ; and that discretion is restrained only 
 by the will of the people as expressed in the state constitutions,^ 
 or through elections, and by the condition that it must not be 
 so exercised or used as to directly burden or embarrass the 
 operations of the national government, or hinder the exercise 
 of any powers with which it is vested bv the constitution.^" 
 
 § 183. Same — Same — Taxation of property employed in in- 
 terstate commerce. — While the state may not, in the exercise 
 of its taxing power, impose, directly, any burdens upon inter- 
 state commerce, yet this principle does not prevent the imposi- 
 tion of state taxes upon property employed in interstate com- 
 merce. Mr. Justice Brewer, stating the doctrine upon this sub- 
 ject, with its limitations, laid down the following propositions 
 as having been fully established by the adjudications of the 
 supreme court, and no longer open to discussion, namely: 
 (1) The constitution of the United States having given to con- 
 gress the power to regulate commerce, not only with foreign! 
 
 16 Union Pacific Railroad Co. v. M'Culloch v. Maryland, 4 Wheat. 
 Peniston, 18 Wall. 5, 50 (21:787); 316, 437 (4:579). 
 
152 FEDEHAIi PKOCEDUKE AT LAW. § 184 
 
 nations, but among the several states, that power is necessarily 
 exclusive whenever the subjects of it are national in their char- 
 acter, or admit only of one uniform system or plan; (2) no 
 state can compel a party, individual, or corporation, to paj'' 
 for the privilege of engaging in interstate commerce; (3) this 
 immunity does not prevent a state from imposing ordinary 
 property taxes upon property having a situs within its terri- 
 tory, and employed in interstate commerce; (4) the franchise 
 of a corporation, although that franchise is the business of in- 
 terstate commerce, is, as a part of its property, subject to state 
 taxation, providing, at least, the franchise is not derived from 
 the United States; and (5) no corporation, even though engaged 
 in interstate commerce, can appropriate to its own use prop- 
 erty, public or private, without liability to charge therefor.^^ 
 
 § 184. Same — Same — Taxation of intangible property. — 
 While no state can, in the exercise of the taxing power, inter- 
 fere with the commercial power of the United States, yet it is 
 not and cannot be doubted that each state of the union may 
 tax all property, real and personal, belonging to persons or cor- 
 porations, and having a legal situs within its limits, although 
 such property be employed in interstate or foreign commerce ; ^' 
 and this power of taxation extends not only to tangible prop- 
 erty, but also to intangible property.^* 
 
 17 Atlantic & Pacific Telegraph constitution, which restrains a 
 Co. V. City of Philadelphia, 190 state from taxing at its real Value 
 U. S. 160-169 (47:995), citing a such intangible property. * * * 
 long list of decided cases in sup- To ignore this intangible property, 
 port of each of the above proposi- or to hold that it is not subject 
 tions. to taxation at its accepted value, 
 
 18 Western Union Telegraph Co. Is to eliminate from the taxing 
 v. Taggart, 163 U. S. 1, 30 (41:49), power a large portion of the 
 and authorities there cited. wealth of the country. Now when- 
 
 19 Adams Express Co. v. Ohio ever separate articles of tangible 
 State Auditor, 166 U. S. 185, 225 property are joined together, not 
 (41:965); Adams Express Co. v. simply by a unity of ownership, 
 Kentucky, 166 U. S. 171, 185 but in a unity of use, there is not 
 (41:960). infrequently developed a property, 
 
 "In the complex civilization of intangible though it may be, 
 
 today, a large portion of the which in value exceeds the aggre- 
 
 wealth of the community consists gate of the value of the separate 
 
 in intangible property, and there pieces of tangible property. Upon 
 
 Is nothing in the nature of things, what theory of substantial right 
 
 or in the limitations of the federal can it be adjudged that the value 
 
§ 187 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 153 
 
 § 185. Same — Same — Same. — There is nothing in the federal 
 constitution which restrains a state from taxing the franchise 
 of a corporation at a different and higher rate than the taxa- 
 tion of tangible property in the state. ^'' 
 
 § 186. Same — Same — Power of state to fix situs of stock of 
 corporations for purposes of taxation. — It is within the com- 
 petenc.v and power of the state to fix, for the purposes of taxa- 
 tion, the situs of the shares of stock of domestic eoporations, 
 whether held by residents or non-residents, at the principal 
 office of the corporation in the state, and to assess them there 
 to the owners, giving notice of the assessment to the corpora- 
 tion, and to require the corporation to pay for and on account 
 of the owners the taxes assessed upon the shares, and to compel 
 such payment without reference to the dividends, giving to the 
 corporation a lien upon the shares of stock, for the taxes so 
 paid, and entitling it, when it pays the taxes, to proceed by 
 personal action against the owner of the shares to recover the 
 amount paid. In such scheme of taxation, the corporation is 
 made the agent of the stockholders to receive notice of the 
 assessment, and to represent them in proceedings for the cor- 
 rection of the assessment ; and the scheme is due process of law.^^ 
 
 § 187. Same — Same — Power of state to tax personal prop- 
 erty without regard to domicile of owner. — Every state has the 
 
 of this Intangible property must corporation it carries witti it that 
 
 be excluded from the tax list, and franchise to be. But the franchise 
 
 the only property placed thereon to be is only one of the franchises 
 
 the separate pieces of tangible of a corporation. The franchise 
 
 property? * * * Now, it is a to do is an independent franchise, 
 
 cardinal rule which should never or rather a combinatioit of fran- 
 
 he forgotten, that whatever prop- chises, embracing all things 
 
 erty is worth for the purposes of which the corporation is given 
 
 income and sale, it is also worth power to do, and this power to do 
 
 for purposes of taxation. * * * is as much a thing of value and 
 
 "It is also true that a corpora- a part of the intangible property 
 
 tion is, for purposes of jurisdic- of the corporation as the franchise 
 
 tion in the federal courts, conclu- to be." Mr. Justice Brewer in 
 
 sively presumed to be a citizen of Adams Express Co. v. Ohio State 
 
 the state which created it, but it Auditor, 166 U. S. 125, 225 
 
 does not follow therefrom that its (41:965). 
 
 franchise to be is for all purposes 20 Coulter v. Louisville & Nash- 
 
 to be regarded as confined to that ville Railroad Co., 196 U. S. 599 
 
 state. For the transaction of its (49:615). 
 
 business it goes into various 21 Corry v. Baltimore, 196 U. S. 
 
 states, and wherever it goes as a 466 (49:556). 
 
154 FEDEEAL PROCEDUHE AT LAW § 18T 
 
 power to tax any personal property found within its jurisdic- 
 tion, without regard to the place of the domicile of the owner;, 
 and a state tax imposed upon the sleeping cars of a foreign 
 corporation, engaged in interstate commerce, taking as a basis 
 of assessment such proportion of the capital stock of the com- 
 pany as the number of miles over which it ran its cars in the 
 state bore to the whole number of miles, in that and other states, 
 ov«r which its cars were run, was upheld as a valid exercise of 
 the taxing power of the state.^^ Money loaned on notes and 
 mortgages in a state other than that of the domicile of the 
 owner, which, with the notes and mortgages, is kept in the 
 state where loaned, for use or reinvestment, is taxable in the 
 state where' it is loaned, and not in the state of the owner's 
 domicile. ^^ 
 
 In the case in this section first above cited, Mr. Justice Gray,, 
 delivering the opinion of the court, said : 
 
 "No general principles of law are better settled, or more 
 fundamental, than that the legislative power of every state' 
 extends to all property within its borders, and that only so far 
 as the comity of that state allows can such property be affected 
 by the law of any other state. The old rule expressed in the 
 maxim nwbilia sequuntur personam, by which personal prop- 
 erty was regarded as subject to the law of the owner's domi- 
 cile, grew up in the middle ages, when movable property con- 
 sisted chiefly of gold and jewels, which could be easily carried 
 by the owner from place to place, or secreted in spots known, 
 only to himself. In modern times, since the great increase in 
 amount and variety of personal property, not immediately con- 
 nected with the person of the owner, that rule has yielded more 
 and more to the lex situs, the law of the place where the prop- 
 erty is kept and used. * * * As observed by Mr. Justice 
 Story in his commentaries: * * * 'Although movables are 
 for many purposes to be deemed to have no situs, except that 
 of the domicile of the owner, yet this being but a legal fiction^ 
 it yields, whenever it is necessary for the purpose of justice, 
 
 22 Pullman Palace Car Company sessors v. Compton National D'Bs- 
 V. Commonwealth of Pennsylvania, compte, 191 U. S. 388, 405 
 141 U. S. 18, 36 (35:613). (48:232); Bristol v. Washington 
 
 23 New Orleans v. Stemple, 175 County, 177 U. S. 133 (44:701); 
 XJ. S. 309, 323 (44:174), and au- Blackstone v. Miller, 188 U. S. 189 
 thorities cited; StE^te Board of As- (47:439). 
 
§ 188 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 155 
 
 that. the actual situs of the thing should be examined. A na- 
 tion within whose territory any personal property is actually 
 situate has an entire dominion over it while therein, in point 
 of sovereignty and jurisdiction, as it has over immovable prop- 
 erty situate there. ' 
 
 "For the purposes of taxation, as has been repeatedly af- 
 firmed by this court, personal property may be separated from 
 its owner; and he may be taxed, on its account, at the place 
 where it is, although not the place of his own domicile, and 
 even if he is not a citizen or resident of the state which imposes 
 the tax. * * * It is equally well settled that there is noth- 
 ing in the constitution or laws of the United States which pre- 
 vents a state from taxing personal property, employed in inter- 
 state or foreign commerce, like other personal property within 
 its jurisdiction. * * * 
 
 "Ships or vessels, indeed, engaged in interstate or foreign 
 commerce upon the high seas or other waters which are a com- 
 mon highway, and having their home port, at which they are 
 registered under the laws of the United States at the domicile 
 of their owners in one state, are not subject to taxation in an- 
 other state at whose ports they incidentally and temporarily 
 touch for the purpose of delivering or receiving passengers 
 or freight. But that is because they are not, in any proper 
 sense, abiding within its limits, and have no continuous pres- 
 ence or actual situs within its jurisdiction, and therefore can 
 be taxed only at thgir legal situs, their home port and the domi- 
 cile of their owners. ' ' " 
 
 § 188. Same — Same — Inheritance tax. — The state may im- 
 pose a tax upon the right or privilege of taking property by 
 devise or descent, called an inheritance tax. Regarding this 
 species of taxation it is said : 
 
 "1. An inheritance tax is not one on property, but one on 
 succession. 2. The right to take property by devise or descent 
 is the creature of the law, and not a natural right — a privilege, 
 and therefore the authority which confers it may impose con- 
 ditions upon it. From these principles it is deduced that the 
 states may tax the privilege, discriminate between relatives, 
 and between these and strangers, and grant exemptions, and 
 
 24 Pullman Palace Car Company v. Commonwealth of Pennsylvania, 
 supra. 
 
156 FEDERAL PKOCEDUEB AT LAW. § 189 
 
 are not precluded from this power by the provisions of the re- 
 spective ' state constitutions requiring uniformity and equality 
 ■of taxation. " ^' 
 
 § 189. System of government not changed by the adoption of 
 the late amendments.— The adoption of the thirteenth, four- 
 teenth and fifteenth amendments was followed by some ex- 
 treme views as to their effect upon the structure of the govern- 
 ment as it had previously existed, and some of them continue 
 to be pressed before the supreme court of the United States 
 upon writs of error to the state supreme courts. It has been 
 contended that the adoption of the amendments has had the 
 effect: 1. To transfer and surrender to the federal govern- 
 ment a large share of the municipal sovereignty of the states, 
 involving powers of the most ordinary and fundamental char- 
 acter, and which had been theretofore universally conceded to 
 the states.^" 2. That the provisions contained in the first ten 
 amendments to the federal constituion, so far as they secure 
 and recognize the fundamental rights of the individual as 
 .against the exercise of federal power, are by virtue of the late 
 amendments to be regarded as privileges or immunities of all 
 citizens of the United States, and that, therefore, the states 
 cannot provide for any procedure in the state courts which 
 could not be allowed and followed in a federal court because of 
 the limitations contained in the first ten amendments.^^ These 
 contentions have been put forth: 1. By the congress of the 
 United States, manifested by a large mass of purely municipal 
 legislation, much of which has been declared unconstitutional 
 .and void by the supreme eourt.^' 2. By (1) disappointed liti- 
 
 2BMagoun V. Illinois Trust & 3, 62 (27:836), holding unconsti- 
 
 Savings Bank, 170 U. S. 283, 303 tutional and void the 1st and 2nd 
 
 (42:1037), and authorities cited; sections of the Civil Rights bill, 
 
 State y. Alston, 94 Tenn. 674, 28 March 1, 1875, 18 U. S. Stat, at 
 
 li. R. A. 178. L. 335; United States v. Harris, 
 
 26 Slaughter-House Cases, 16 106 U. S. 629, 644 (27:290), hold- 
 Wall. 36, 130 (21:394);' Civil ing unconstitutional and void the 
 Eights Cases, 109 U. S. 3, 62 2nd section of the Act of Apr. 20, 
 (27:836). 1871, 17 U. S. Stat, at L. 13, 14 
 
 27 Spies Case, 123 U. S. 151 , (sec. 5519, U. S. Rev. Stat.) ; 
 (31:80); Maxwell v. Dow, 176 U. United States v. Reese, 92 U. S. 
 
 S. 581, 617 (44:597); Hurtado v. 241, 256 (23:563), holding uncon- 
 Cal., 110 U. S. 516 (28:232). stitutional and void the 3rd and 
 
 28 Civil Rights Cases, 109 U. S. 4th sections of the Act of May 31, 
 
§ 190 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 157 
 
 gants in civil caseSj^" and (2) by persons convicted of crime,''^ 
 who, by writs of error from the supreme court of the United 
 States, to the state courts, have assailed the particular state leg- 
 islation under which their hopes have been disappointed, as be- 
 ing in conflict with the guaranties of the amendments. But an 
 examination of the authorities above cited in this s°etion will 
 show that, in the opinion of the supreme court, the adoption of 
 the late amendments did not change or destroy any of the main 
 features of the governmental system, nor change the relations 
 of the state and federal governments to each other, nor the 
 relation of those governments to the people, nor disturb the 
 distribution of governmental powers between the state and 
 federal governments, as they had previously existed ;^^ nor 
 have the effect to apply the guaranties of the first ten amend- 
 ments to the states or to make the provisions thereof restraints 
 upon the state governments.^^ 
 
 § 190. The police power of the states preserved intact. — ^It is 
 the settled doctrine of the supreme court of the United States, 
 announced in an unbroken line of decisions, that the states did 
 not intend, by the adoption of the fourteenth amendment, or 
 
 1870, 16 U. S. Stat, at L. 140 (sees. 
 2007, 2008, 5506, U. S. Rev. Stat.); 
 James v. Bowman,, 190 U. S. 127, 
 142 (47:979), holding unconstitu- 
 tional and void the 5th section of 
 the Act of May 31, 1870 (sec. 5507, 
 TJ. S. Rev. Stat.). See also Lackey 
 V. United States, 46 C. C. A. 189; 
 Karem v. United States, 57 C. C. 
 A. 486. 
 
 29 'Slaughter-House Cases, 16 
 Wall. 36, 130 (21:395); Munn v. 
 Illinois, 94 U. S. 113, 134 (24:77); 
 Davidson v. New Orleans, 96 U. S. 
 97, 105 (24:616); MSMillen v. An- 
 derson, 95 U. S. "37, 42 (24:335); 
 Barbier v: Connolly, 113 U. S. 27, 
 31 (28:923); Iowa C. R. Co. v. 
 Iowa, 160 U. S. 393 (40:469) ; Mug- 
 ler V. Kansas, 123 U. S. 623, 678 
 (31:205); L. & N. R. Co. v. Com- 
 monwealth of Ky., 161 U. S. 677, 
 704 (40:849); Bowman v. Lewis, 
 101 U4 S. 22 (25:989). 
 
 30 Hurtado v. Cal., 110 U. S. 516, 
 558 (28:232); Ex parte Kemmler, 
 136 U. S. 436, 449 (34:519); Gib- 
 son v. Mississippi, 162 U. S. 565, 
 592 (40:1075); Neal v. Delaware, ^ 
 103 U. S. 370 (26:567); Bush v. 
 Kentucky, 107 U. S. 110 (27:354); 
 Virginia v. Rives, 100 U. S. 313 
 (25:667); United States v. Cruik- 
 shank, 92 U. S. 542 (23:588); 
 Caldwell v. Texas, 137 U. S. 692 
 (34:816); l.eeper v. Texas, 139 U. 
 S. 462, 467 (35:225); Maxwell v. 
 Dow, 176 U. S. 581, 617 (44:597), 
 
 31 See specially Slaughter-House 
 Cases, supra, and Re Kemmler, 
 supra. 
 
 32 Maxwell v. Dow, 176 U. S. 581, 
 617 (44:597); Hurtado v. Cal., 110 
 U. S. 516 (28:232); Spies v. Illi- 
 nois, 123 U. S. 131, 166 (31:80); 
 Brown v. New Jersey, 175 U. S, 
 172, 174 (44:119). 
 
158 FEDERAL PKOCEDUEE AT LAW. § 190 
 
 the adoption of any other amendment, to impose a restraint 
 upon their power, sometimes called the police power, to pre- 
 scribe regulations for the protection and promotion of the in- 
 terests, convenience, safety, health, life, peace, morals, educa- 
 tion, and good order of society, and to enact and enforce laws 
 for the repression and punishment of crime, and to increase the 
 industries of the state, develop its resources, and add to its 
 wealth and prosperity; and that, as government was organized 
 for the protection and promotion of those objects, it cannot 
 divest itself of the power to provide for them, and the four- 
 teenth amendment was not designed to interfere with the exer- 
 cise of that power by the states.^^ The police power was not 
 by the federal constitution nor any of the amendments thereto 
 transferred to the national government, but was reserved to 
 the states, and upon them rests the duty of so exercising it as 
 to protect the public health and morals ; and while, of course, 
 that power cannot be exercised by the states in any way to in- 
 fringe upon the powers expressly granted to congress, yet until 
 there is some invasion of congressional power or of private 
 right secured by the federal constitution, the action of the 
 states in the exercise of this important power cannot be ques- 
 tioned in the courts of the United States.^* 
 
 The thirteenth and fourteenth amendments were first brought 
 under view of the supreme court of the United States for con- 
 struction, upon a writ of error to the supreme court of Louis- 
 iana, calling in question the constitutionality of a statute of 
 that state, regulating the landing, yarding, inspection and 
 slaughter of all animals whose flesh was intended for food in 
 
 33 Slaughter-House Cases, 16 Nashville Railroad Co. v. Common- 
 Wall. 36, 130 (21:395); Barbier wealtli of Kentucky, 161 U. S. 677, 
 V. Connolly, 113 U. S. (28:923); 704 (40:849); Holden v. Hardy, 
 Powell V. Pennsylvania, 127 TJ. S. 169 U. S. 366, 398 (42:780); L'Hote 
 683 (32:256); Mugler v. Kansas, r. New Orleans, 177 U. S. 587 
 123 U. S. 623, 678 (31:205); Barte- (44:899); Davis v. Massachusetts, 
 meyer v. Iowa, 18 Wall. 129 167 U. S. 43 (42:71) ; Stone v. MIs- 
 (21:929); Boston Beer Co. V. Mas- sissippi, 101 U. S. 814, 821 
 sachusetts, 97 TJ. S. 33 (24:992); (25:1079); Douglas v. Common- 
 Foster V. Kansas, 112 U. S. 206 wealth of Kentucky, 168 V. S. 488, 
 (28:697); Butchers' Union v. 505(42:553). 
 
 Crescent City Co., Ill U. S. 746, 3* L'Hote v. New Orleans, 177 
 
 751 (28:585); Munn v. Illinois, 94 U. S. 587, 600 (44:899). 
 U. S. 113 (24:77); Louisville & 
 
§ 190 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 159 
 
 the city of New Orleans, and other adjacent territory, requir- 
 ing all such animals to be landed and slaughtered upon the 
 property of a corporation created by the act, prohibiting the 
 slaughter of animals except in the slaughter houses of the in- 
 ■corporation created, for a period of twenty-five years; but re- 
 quiring the company to provide facilities for the slaughter of 
 a,nimals for the use of the public, and fixing a maximum fee to 
 be paid by all butchers slaughtering animals at the place or 
 places designated. The act provided penalties against all per-, 
 sons violating the provisions of the act. The butchers of New 
 ■Orleans resisted the enforcement of the statute, alleging that 
 it was in violation of the constitution of the United States in 
 the following particulars : That it created an involuntary serv- 
 itude forbidden by the thirteenth amendment; that it abridged 
 the privileges and immunities of citizens of the United States; 
 that it denied to the plaintiffs the equal protection of the laws ; 
 and deprived them of their property without due process of 
 law, contrary to the first section of the fourteenth amendment. 
 After the case had been twice argued, the court overruled the 
 ■contentions of the plaintiffs in error, and held that the statute, 
 although it granted exclusive privileges, was within the police 
 power of the state of Louisiana. ^° Mr. Justice Miller, who de- 
 livered the opinion of the court, after stating the provisions of 
 the statute, said, substantially: 
 
 ' ' The power here exercised by the legislature of Louisiana is, 
 in its essential nature, one which has been, up to the present 
 period in the constitutional history of this country, always 
 ■conceded to belong to the states, however it may now be ques- 
 tioned in some of its details. Unwholesome trades, slaughter- 
 houses, operations offensive to the senses, the deposit of pow- 
 der, the application of steam power to propel cars, the build- 
 ing with combustible materials, and the burial of the dead, 
 may all be interdicted by law, in the midst of dense masses of 
 population, on the general and rational principle, that every 
 person ought so to use his property as not to injure his neigh- 
 bors; and that private interests must be made subservient to 
 the general interests of the community. This is called the 
 police power; and it is declared that it is much easier to per- 
 ceive and realize the existence and sources of it than to mark 
 
 85 siaughter-House Cases, 16 Wall. 36, 131 (21:395). 
 
160 FEDERAL PROCEDURE AT LAW. § 191 
 
 its boundaries, or prescribe limits to its exercise. This power 
 is, and must be from its very nature, incapable of any very 
 exact definition or limitation. "Upon it depends the security 
 of social order, the life and health of the citizen, the comfort 
 of an existence in a thickly populated community, the enjoj'- 
 ment of private and social life, and the beneficial use of prop- 
 erty. It extends to the protection of the lives, limbs, health, 
 comfort and quiet of all persons, and the protection of all prop- 
 erty within the state; and persons and property are subjected 
 to all kinds of restraints and burdens in order to secure the 
 general comfort, health and prosperity of the state. Of the 
 perfect right of the legislature to do this no question ever was, 
 or upon acknowledged general principles, ever can be made, so 
 far as natural persons are concerned. The regulation of the 
 place and manner of conducting the slaughtering of animals, 
 and the business of butchering within a city, and the inspection 
 of the animals to be kiUed for meat, and of the meat after- 
 wards, are among the most necessary and frequent exercises 
 of this power. It is not, therefore, needed that we should seek 
 for a comprehensive definition, but rather look for the proper 
 source of its exercise." He then entered into a consideration 
 of all the constitutional questions raised by the plaintiffs in er- 
 ror, and, after an exhaustive examination of them, declared 
 that it was not the intention of the amendments to transfer 
 from the state governments to the federal government the exer- 
 cise of powers heretofore belonging exclusively to the states. 
 
 § 191. Same — State police regulations incidentally affecting 
 interstate and foreign commerce — Rights secured by the con- 
 stitution. — One of the most fruitful sources of litigation in the 
 supreme court of the United States, and one which, as shown 
 by the reported eases, is often frivolous, is the contention, most 
 usually brought forward by corporations engaged as common 
 carriers, that state statutes enacted in the exercise of the police 
 power are in conflict with, or are an invasion of the commercial 
 power of the United States. These corporations are continu- 
 ously engaged in making the most desperate and unreasonable 
 assaults upon the municipal sovereignty and police power of 
 the states, whenever that power is exercised for the protection 
 of the community against corporate rapacity and dereliction of 
 duty to the public. Scarcely any state police regulation of 
 public utilities, however reasonable, just and humane — not even a 
 
§ 191 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 161 
 
 state statute prohibiting the operation of freight trains on Sun- 
 day, and giving trainmen the seventh day's cessation from 
 labor,^* the wisdom of which is concurred in hy the opinions; 
 of the "philosophers, moralists, and statesmen of all nations,'" 
 and "founded in experience, and sustained by science"" — 
 has escaped the determined and vigorous assaults of those- 
 "ideal persons," created by the states, and who have turned 
 upon their creators, the state, and sought to destroy their in- 
 alienable and unsurrendered powers. In addition to the claim 
 in such cases that the state legislation involved is i'n conflict 
 with the commercial power of the United States, the further 
 contention is usually set up that such legislation is in conflict 
 with some right secured by the federal constitution, as that it 
 denies to some person or corporation the privileges or immuni- 
 ties of citizens of the United States, or of life, liberty or prop- 
 erty without due process of law, or of the liberty of contract, 
 or the equal protection of the laws. 
 
 It would be a hopeless task to undertake to review all of the 
 adjudicated eases upon this important subject and quite be- 
 yond the purpose and limits of this work; but it is confidently 
 believed that the rule upon this subject established by all the 
 authorities is substantially as follows : j 
 
 A statute enacted by a state for the protection and promo- 
 tion of the interests, convenience, safety, health, life, peace, 
 morals, education, good order, or general welfare of society, 
 or the political community called the state, or for the develop- 
 ment of its resources, and which has a real and substantial re- 
 lation to the public end intended to be accomplished by its 
 enactment, and which is not directed against, nor imposes a 
 direct burden upon interstate or. foreign commerce, and which 
 does not contravene the constitution of the United States, nor 
 infringe any right granted or secured by that instrument, is, 
 not to be deemed inhibited by the federal constitution, although 
 such state statute may, in its application and Operation, inci- 
 dentally, ot indirectly, or remotely, or collaterally affect such 
 commerce, and may reasonably restrict, for the good of the^ 
 whole community, the rights of corporations and individuals;, 
 but when such state statute, even if based upon the acknowl- 
 edged police power of the state, or purporting to have been en- 
 
 36 Hennlngton v. State of G-eor- s7 Petit v. Minnesota, 177 U. S.. 
 gia, 163 U. S. 299, 319 (41:166). 164, 168 (44:716). 
 
 11 
 
1C2 
 
 FKDERAL PROCEDURE AT LAW. 
 
 192 
 
 acted for tlie protection and promotion of the interests, conven- 
 ience, safety, health, life, peace, morals, education, good order, 
 or general welfare of society, or for the development of the re- 
 sources of the state, has no real and substantial relation to those 
 objects or either of them, and is in conflict with the exercise by 
 the general government of any power vested in it by the consti- 
 tution, or is, beyond all question, a plain, palpable invasion of 
 rights secured or granted by the fundamental law, it will 
 be declared invalid and void by the supreme court of the 
 United States, when the question of its validity or invalidity 
 is duly presented to it in an appropriate judicial proceeding 
 between competent parties. In all such cases, however, if 
 there be a well-founded doubt as to the validity of the statute, 
 that doubt must be resolved in favor of its, validity.^' 
 
 § 192. Same — ^Sunday laws. — The state legislature possess- 
 ing the undisputed power to enact laws to promote the order 
 and to secure the comfort, happiness, health, and the moral 
 and social elevation of the people composing the political com- 
 munity, may designate one day in the week, when all work and 
 
 38 Lake Shore & Michigan South- 
 ern Railway Company' v. State of 
 Ohio ex rel. Lawrence, 173 U. S. 
 285, 338 (43:702); Hennington v. 
 Georgia, 163 U. S. 299, 317 
 (41:166); Oilman v. Philadelphia, 
 3 Wall. 713 (18:96); Pound v. 
 Turck, 95 U. S. 459 (24:525); Es- 
 cambia Co. V. Chicago, 107 U. S. 
 678 (27:442); Cardwell v. Ameri- 
 can Bridge Co., 113 U. S. 205 
 (28:959); Western Union Tele- 
 graph Co. v. James, 162 U. S. 650 
 (40:1105); Richmond & N. Rail- 
 road Co. V. R. A. Patterson To- 
 bacco Co., 169 U. S. 311 (42:759); 
 Wilson V. Black Bird Creek Marsh 
 Co., 2 Pet. 245 (7:412); Chicago 
 & N. W. R. Co. V. Fuller, 17 Wall. 
 560 (21:710); Hannibal & St. J. 
 R. Co. V. Husen, 95 U. S. 465 
 (24:527); Morgan's L. & T. R. & 
 S. S. Co. V. Louisiana Board of 
 Health, 118 U. S. 455 (30:237); 
 Nashville, C. & St. L. R. Co. v. 
 
 Alabama, 128 U. S. 96 (32:352); 
 Smith/ V. Alabama, 124 XJ. S. 465 
 (31:508); Missouri, Kansas & 
 Texas Ry. Co. v. Haber, 169 U. S. 
 613- (42: 878); New York, N. H. & 
 H. Railroad Co. v. New York, 165 
 U. S. 628 (41:853); Gibbons v. Og- 
 den, 9 Wheat. 1, 210 (6:23); Sher- 
 lock V. Ailing, 93 U. S. 99, 
 (23:819); Cooley v. Philadelphia 
 Port Wardens, 12 How. 299 
 (13:996); Muggier v. Kansas, 123 
 U. S. 623 (31:205);' Minnesota v. 
 Barber, 136 U. S. 313 (34:i455); 
 Atkin V. Kansas, 191 U. S. 207 
 (48:148); Sumat v. Davenport, 22 
 How. 227 (16:243); Crowley v. 
 Christensen, 137 U. S. 86 (34:620) ; 
 Louisville & Nashville Railroad 
 Co. V. Commonwealth of Ken- 
 tucky, 161 U. S. 670, 704 (40:849) ; 
 Munn V. Illinois, 94 U. S. 113 
 (24:77); Pearsall v. Great North- 
 ern R. Co., 161 U. S. 646 ('(0:838). 
 
§ 193 LIMITATIONS IMPOSED BY PPDEEAL. CONSTITUTION. 163 
 
 labor within the state, works of necessity and charity excepted, 
 shall cease; but such statutes prescribe a civil duty, and not a 
 religious observance.^' Regulations of this character are valid, 
 although incidentally affecting foreign and interstate com- 
 merce, as in the instance of the statute of the state of Georgia 
 forbidding the running of freight trains, with certain excep- 
 tions, within the territorial limits of the state on Sunday.*" 
 
 § 193. Same — Power of the state to regulate the use of prop- 
 erty "affected with a public interest." — The police power of 
 the state is not confined to laws and regulations for the pro- 
 tection and promotion of the public safety, health, morals, and 
 good order of society ; but whatever is contrary to public policy 
 or inimical to the public interest is subject to the police power 
 of the state, and within legislative control, and in the exercise 
 of such power the legislature is vested with a large discretion, 
 which, if exercised in good faith and within constitutional lim- 
 its, is beyond the reach .of judicial control.*^ 
 
 When one becomes a member of society, he necessarily parts 
 with some rights or privileges which, as an individual not af- 
 fected by his relations to others, he might retain. "A body 
 politic is a social compact by which the whole people covenants 
 with each citizen, and each citizen with the whole people, that 
 all shall be governed by certain laws for the common good;" 
 this social compact does not confer power upon the whole peo- 
 ple to control rights which are purely and exclusively private, 
 but it does authorize the establishment of laws requiring each 
 citizen to so conduct himelf, and so use his own property as not 
 unnecessarily to injure another. This principle, it is said, "is 
 the very essence of government, and has found expression in 
 the maxim, sic utere tuo ut alienuni non laedas." And from 
 this source is derived the police power, which is nothing more 
 
 39 Petit V. Minnesota, 177 U. S. 7fi8; State v. Awles, 20 Mo. 214; 
 
 164, 168 (44:716); Hennington v. Nashville v. Linck, 12 Lea, 499. 
 
 State of Georgia, 163 U. S. 299, *o Hennington v. State of Geor- 
 
 319 (41:166); Bloom v. Richards, gia, 163 U. S. 299, 319 (41:166), 
 
 2 Ohio State, 387; Specht v. Cora., affirming the case, 90 Georgia, 396. 
 
 8 Pa. 312, S. C. 49 Am. Dec. 518; ^i Louisville & Nashville Rail- 
 
 Frolickstein v. Mobile, 40 Ala. road Co. v. Commonwealth of Keii- 
 
 725; Ex parte Andrews, 18 Cal. tuoky, 161 TJ. S. 677, 704 (40:849); 
 
 678; State v. Baltimore & Ohio R. Atlantic Coast Line R. Co. v. 
 
 Co., 24 W. Va. 783; Scales v. State, North Carolina Corp. Com., 206 
 
 47 Ark. 476, S. C. 58 Am. Rep. U. S. 1-27 (51.933). 
 
164 FEDEEAL PROCEDUBE AT LAW. § 193 
 
 nor less than the powers of government inherent in every sover- 
 eignty to the extent of its dominions ; the power to govern men 
 and things. It is a rule of the common law, that, when one de- 
 votes his property to a use in which the public has an interest, 
 he, in effect, grants to the public an interest in the use, and his 
 property thereby becomes "affected with a public interest," 
 and ceases to be "juris privati only," and becomes subject to 
 regulation by the state in the interest of the public. This rule 
 of the common law became a part of the municipal law of the 
 American colonies and also of the states, and in the exercise of 
 it they have prescribed regulations, including maximum rates 
 to be charged, controlling common carriers, ferries, warehouse- 
 men, wharfingers, millers, and others whose property is de- 
 voted to a public use; and the principle has been applied by 
 t,he state of Illinois to grain elevators or grain warehouses by a 
 statute fixing the maximum of charges for the storage of grain 
 in the city of Chicago and other places in the state having not 
 less than one hunderd thousand inhabitants. It was claimed, 
 upon writ of error, that this Illinois statute was repugnant to 
 certain provisions of the federal constitution, among others 
 the fourteenth amendment, in that it deprived the owners of 
 the elevators of their property, without due process of law, and 
 denied them the equal protection of the law; but the supreme 
 court overruled these contentions and upheld the validity of 
 the statute.*^ In a subsequent case, in which it was alleged, 
 on writ of error, that a statute of New York fixing the maxi- 
 mum charge for elevating, receiving, weighing and discharg- 
 ing grain, by floating and stationary elevators, was unconstitu- 
 tional, because contrary to the provisions of the first section 
 of the fourteenth amendment to the constitution of the United 
 States, and in which the decision in the Illinois ease was ques- 
 tioned, the supreme court, after reviewing the cases, in an opin- 
 ion upholding the New York statute, said: "It is thus apparent 
 that this court has adhered to the decision in Munn against 
 Illinois and to the doctrines announced in the opinion of the 
 court in that ease ; and those doctrines have since been repeat- 
 edly enforced in the decisions of the courts of the states." " 
 
 42 Munn V. Illinois, 94 U. S. 113, 43 Budd v. State of New York, 
 154 (24:77). 142 U. S. 517, 552 (36:247). 
 
§ 194 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 165 
 
 § 194. Same — ^Regulation of railroads. — Railroad companies 
 are common or public carriers for hire, incorporated as such 
 with extraordinary powers in order that they may the better 
 serve the public in that capacity, engaged in a public employment 
 affecting the public interest, and their property is devoted to a 
 public use and affected with a public interest, and has ceased 
 to be jus privati only; and, therefore, the state, in the exercise 
 of its police power, may, within constitutional limits, by general 
 statutes, or by administrative bodies, regulate he use of rail- 
 roads within the jurisdiction of the state, and fix maximum 
 rates of charges for the transportation of persons and property, 
 when not forbidden by valid charter contract, without depri\ 
 ing the corporations owning and operating railroads within thb 
 state of their property without due process of law, or denying 
 them the equal protection of the laws, within the meaning of the 
 fourteenth amendment to the constitution ; and this power may 
 be exercised in relation to a railroad although the act incor- 
 porating the company owning and operating it granted to such 
 company the power from time to time to fix, regulate and re- 
 ceive the tolls and charges to be received by it for the trans- 
 portation of persons and property,** and the fact that a railroad 
 company has been organized and created under the laws of the 
 United States does not exempt its railroad property from the 
 police power of the state,*° nor from its taxing power.*® But 
 the state cannot, under pretense of regulating fares and 
 freights, require a railroad corporation to carry persons or 
 property without just and reasonable compensation; neither 
 can it do that which in law amounts to a taking of private prop- 
 erty for public use without just compensation, or without due 
 process of law, nor which amounts to an unconstitutional de- 
 nial of the equal protection of the laws.*^ Legislation by the 
 
 44 Chicago & Northwestern Rail- mond, 96 U. S. 529 (24:737); 
 
 way Co. V. Fuller, 17 Wall. 566, Munn v. Illinois, 94 U. S. 134 
 
 570 (21:710); Chicago, Burling- (24:77). 
 
 ton & Quincy Railroad Company 45 Reagan v. Mercantile Trust 
 
 V. Cutts, 94 U. S. 155, 187 (24:94); Co., 154 U. S. 413, 418 (38:1028). 
 
 Peik V. Chicago & Northwestern 40 Union Pac. R. Co. v. Peniston, 
 
 Railroad Co., 94 U. S. 164, 178 18 Wall. 5, 36 (21:787); Thomp- 
 
 (24:97); Stone v. Farmers Loan son v. Union Pac. R. Co., 9 Wall. 
 
 & Trust Co., 116 U. S. 307, 347 579 (19:792). 
 
 (29:636); Railroad Co. v. Rich- 47 Reagan v. Farmers Loan & 
 
166 FEDERAL PROCEDUEB AT LAW. § 195 
 
 state, regulating and supervising the operation of railroads is 
 not, in the sense of the constitution, a regulation of commerce ; 
 it is a police regulation, and, as such, forms "a portion of the 
 immense mass of legislation which embraces everything within 
 the territory of a state not surrendered to the general govern- 
 ment, all which can be most advantageously exercised by the 
 states themselves."*^ 
 
 § 195. Same — Same — The state may prohibit consolidation 
 of parallel railway lines. — In the judicial delimitation between 
 the commercial power of the United States, and the police power 
 of the states, a general rule of constitutional construction, rec- 
 ognized and acted on by the courts is, that whatever is con- 
 trary to public policy or inimical to the public interest, is sub- 
 ject to the police power of the state, and within legislative con- 
 trol, and in the exercise of such power the legislature is vested 
 with a large discretion, which, if exercised bona fide for the 
 protection of the public, is beyond the reach of judicial in- 
 quiry; and the fact that state legislation, not directed against 
 interstate commerce, but establishing police regulations of in- 
 terstate railways, interferes indirectly and remotely or collater- 
 ally with that commerce, by imposing a burden upon its instru- 
 mentalities, and adds something to the cost of transportation 
 bj'' the expense incurred in conforming to such regulation, does 
 not constitute such state legislation an interference with the 
 commercial power of the United States; and while it is true 
 that the police power cannot be exercised over interstate com- 
 merce, yet it may be exercised over the instrumentalities of 
 that commerce.'"' And it is, accordingly, established, that the 
 state may, in the exercise of its police power, forbid and re- 
 strain the consolidation of rival, parallel and competing rail- 
 way lines situated within its territorial limits, whenever, in the 
 
 Trust Co., 154 U. S. 362, 413 *» Louisville v. Nashville Rail- 
 (38:1014) ; Atlantic Coast Line R. road Co. v. Commonwealth of Ken- 
 Co. V. North Carolina Corp. Com., tucky, 161 U. S. 677, 704 (40:849); 
 206 TJ. S. 1-27 (51:930), and au- Sherlock v. Ailing, 93 U. S. 99 
 thorities cited. (23:819); Munn v. Illinois, 94 U. 
 48 Chicago & Northwestern Rail- S. 113, 154 (24:77); R. Co. v. 
 way Co. V. Fuller, 17 Wall. 560, Cutts, 94 U. S. 155 (24:94); Smith 
 570 (21:710); Louisville & Nash- v. Alabama, 124 U. S. 465, 483 
 ville Railroad Co. v. Common- (31:508). 
 wealth of Kentucky, 161 U. S. 677, 
 704 (40:849). 
 
§ 195 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 167 
 
 opinion of the legislature, such consolidation is calculated to 
 injuriously affect the public interest, although such railways 
 are instrumentalities of, and are engaged in interstate com- 
 merce."' A railway company has no power to purchase or ac- 
 quire the capital stock, franchise and property of another rail- 
 way company, unless such power is granted by the state; and 
 such power, when granted, is, so long as it remains unexecuted, 
 not a contract, but a mere license, and is revocable by the state ; 
 and a provision in a state constitution, prohibiting the consoli- 
 dation of the capital stock, franchises or property, or the ac- 
 quiring by purchase or lease of parallel or competing lines of 
 railroad, which was adopted after the granting of a charter 
 power authorizing a railroad company to purchase a parallel 
 line, but before the power was executed, does not impair the 
 obligation of any charter contract. ^^ And where by a railway 
 charter, a general power is ^iven to the company incorporated 
 by it to consolidate with, purchase, lease, or acquire the stock 
 of other railroads, which power has remained unexecuted, it is 
 within the competency of the legislature to declare, by subse- 
 (luent acts, that this power shall not extend to the purchase or 
 lease of or consolidation with parallel or competing lines. '^ A 
 statute authorizing two railroad companies to consolidate upon 
 ' ' such terms as they may agree upon, ' ' or other words of simi- 
 lar import, means such terms as they may agree upon "con- 
 sistent with the law as announced in their charters and other- 
 wise. " ^' A consolidation of the stock of two or more railroads 
 results uniformly and. necessarily in the creation of a new cor- 
 poration, and as of the date of the deed of consolidation; and 
 where the charters of the constituent companies contain an ex- 
 emption of their property from taxation, and, during the time 
 intervening between the incorporation of the constituent com- 
 panies and the consolidation, a state constitutional provision 
 
 50 Louisville v. Nashville Rail- Adams v. Railroad Co., 77 Miss. 
 road Co. v. Commonwealth of 194, 24 S. R. 200. ^ 
 Kentucky, 161 U. S. 677, 704 (40: 52 Pearsall v. Great Northern R. 
 849); Pearsall v. Great Northern Co., 161 U. S. 646, 677 (40:838). 
 R. Co., 161 U. S. 646, 677 (40:836). ss Adams v. Railroad Co., 77 
 
 51 Louisville & Nashville Rail- Miss. 194, 24 S. R. 200; Rail- 
 road Co. V. Commonwealth of Ken- road Co. v. Adams, 180 U. S. 1, 25 
 tucky, 161 U. S. 677, 704 (40:849); (45:395). 
 
168 FEDERAL PROCEDURE AT LAW. § 196 
 
 is adopted inhibiting the exemption of railroad property from 
 taxation, the new corporation comes into existence subject to the 
 existing constitution, and the exemptions of the constituent' com- 
 panies are lost.^* 
 
 § 196. Same — Maintaining safety of railroad crossing. — The 
 states, in the exercise of the police power, may enact all laws 
 and prescribe all regulations , necessary and proper to secure 
 the safety of the public against the dangers arising from the 
 crossing of streets and public highways by railroads, without 
 violating the inhibitions of the constitution of the United States 
 againts the impairment of the obligation of contracts, the de- 
 privation of property without due process of law, and the de- 
 nial of the equal protection of the laws; and where a railroad 
 crosses a street at an important point in a populous city, it is 
 not competent for the city and the railroad company, by enter- 
 ing into an agreement between themselves, to withdraw the 
 subject from the police power of the state, and substitute their 
 views of the public necessities and the public safety for those 
 of the legislature. In all such cases, it is the paramount duty 
 of the state legislature to secure the safety of the community 
 by appropriate legislation, and it has the power to supervise, 
 control and change any such agreements as may be from time 
 to time entered into between cities and railroad companies in 
 respect to such crossings, saving any rights previously vested. 
 The governmental power of self-protection belonging to the 
 states, called the police power, cannot be contracted away ; nor 
 can the exercise of rights, nor the use of property, be with- 
 drawn from the liability to governmental regulation and con- 
 trol in particulars essential to the preservation of the com- 
 munity from danger. The state is vested with the govern- 
 
 5* Adams v. Railroad Co., 77 Railroad Co. v. State of Nebraska 
 
 Miss. 194, 24 S. R. 200; Ry. Co. ex rel. City of Omaha, 170 U. S. 
 
 V. Berry, 113 U. S. 465, 476 57, 77 (42:948); New York and 
 
 (28:1055); Keokuk & W. R. Co. v. New England R. R. Co. v. Town 
 
 Missouri, 152 U. S. 308 (38:454); of Bristol, 151 V. S. 556, 571 
 
 Railroad Co. V. Adams, 180 U. S. 1, (38:269); Mooney v. Clark, 69 
 
 25 (45:395). For a full and learned Conn. 254, 37 Atl. 509; Newton v. 
 
 discussion of the subject of rail- New York, etc., Railroad, 72 Conn, 
 
 way consolidation, see the opinion 429, 44 Atl. 816; Norwood v. New 
 
 of Mr. Justice Whitfield in Adams York, etc.. Railroad, 161 Mass. 265, 
 
 V. Railway Co., 77 Miss. 194, supra. 37 N. E. 201. 
 
 55 Chicago, Burlington & Quincy 
 
§ 197 LIMITATIONS IMPOSED BT FEDEEAL CONSTITUTION. 169 
 
 mental power, and charged with the governmental duty to se- 
 cure safe public highways.^^ 
 
 § 197. Same — Limiting hours of labor in unhealthy employ- 
 ments. — ^A state statute providing that the period of employ- 
 ment of working men in all underground mines, and in smelters 
 and all other iustitutions for the reduction or refining of ores 
 or metals, shall be eight hours per day, except in eases of emer- 
 gency where life or property is in imniinent danger, and mak- 
 ing a violation of such provisions punishable as a misdemeanor, 
 has been upheld as a valid exercise of the police power, and 
 not in contravention of any provision of the federal constitu- 
 tion; the court placing its decision upon the ground that the 
 state legislature had adjudged, and the experience of mankind 
 shows, that such employments, when too long pursued in con- 
 secutive hours of labor, are detrimental to the health of the 
 employees, and that the proprietors of such industries and their 
 operatives do not stand upon an equal footing, the former de- 
 siring to obtain as much labor as possible from their employees, 
 while the latter are often induced by the fear of discharge to 
 conform to regulations which their judgment, fairly exercised, 
 would pronounce to be detrimental to their health, and that in 
 such cases the legislature may properly interpose its author- 
 ity.=« 
 
 But in a more recent case, the supreme court has rendered a 
 reactionary decision, or one showing a counter judicial tend- 
 ency, declaring invalid a provision of a New York statute, pro- 
 hibiting the working of employees in bakeries more than sixty 
 hours a week, or more than ten hours in any one day, unless for 
 the purpose of making a shorter work day on the last day of 
 the week, the justice delivering the opinion of the court placing 
 the decision upon the ground "that there can be no fair doubt 
 that the trade of a baker, in and of itself, is not an unhealthy 
 one to that degree which would authorize the legislature to in- 
 terfere with the right to labor, and with the right of free con- 
 tract on the part of the individual, either as employer or em- 
 ployee, and that the statute in question was not intended to 
 meet a case of involuntary labor in any form, but was an inter- 
 ference with the liberty of contract secured by the fourteenth 
 amendment to the constitution of the United States." Mr. Jus- 
 
 56 Holden v. Hardy, 169 TJ. S. st Lochner v. New York, 198 U. 
 
 366, 398 (42:780). S. 45, 76 (49:937). 
 
170 FEDERAL PROCEDURE Ar LAW. § 19& 
 
 tice Harlan, dissenting from the decision of the court in that 
 case, placed his dissent upon the ground that it is plain that the- 
 statute whose validity was involved was enacted to protect the 
 physical well-being of those persons who work in bakeries and 
 confectionery establishments, and the statute must be taken 
 'as expressing the belief of the people of New York that, as a 
 general rule, and in the case of the average man, labor in ex- 
 cess of sixty hours during a week in such establishments may 
 endanger the health of those who thus labor, and that whether 
 or not the statute be wise legislation, is not within the province- 
 of the supreme court to determine, the courts under our sys- 
 tem of government not being concerned with the wisdom or- 
 policy of legislation; and that in determining the power of the 
 state of New York to enact the statute, and thereby to inter- 
 fere with the liberty of contract in the class of cases therein 
 mentioned, and for that purpose inquiring whether the means 
 devised by the statute are germane to the accomplishment of 
 the purpose had in view in its enactment, he found it impossi- 
 ble, in view of common experience, to say that there is no real 
 or substantial relation between the means employed and the 
 end sought to be accomplished by the statute, nor that the stat- 
 ute has no appropriate or direct connection with that protec- 
 tion of health which each state owes to its citizens, nor that it 
 is not promotive of the health of the employees in such estab- 
 lishments, nor that the regulation prescribed by the statute is 
 utterly unreasonable and extravagant or wholly arbitrary, nor 
 that the statute is beyond question a plain, palpable invasion 
 of rights secured by the fundamental law.^' 
 
 § 198. — Same — State statute requiring company "store or- 
 ders " to be redeemed in cash. — A state statute requiring all per- 
 sons, firms, corporations and companies, using coupons, scrip, 
 punchouts, store orders or otheY evidences of indebtedness to 
 pay their laborers and employees for labor, shall, if demanded,, 
 redeem the same at their face value, in the hands of such la- 
 borers, or bona fide holders, in lawful money of the United 
 States, when seasonably presented for payment, and providing 
 a legal remedy for the collection of the same, has been tipheld 
 bj' the supreme court of the United States as a valid exercise 
 
 68 Locliner v. New York, supra, dissenting opinion of Mr. Justice 
 Harlan. 
 
§ 199 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 171 
 
 of the police power, the ratio decedendi being that in such eases 
 the employee is at a disadvantage with the employer in the mat- 
 ter of wages, and the tendency of the statute is to remove that 
 inequality, and to place the employer and employee upon equal 
 ground, and protect the latter from a diminution of the price 
 of his labor by a discount of the "evidence of indebtedness"' 
 in which his wages might be paid.'" 
 
 § 199. Same — Health regulations. — The authority of the 
 state to establish, maintain and administer health laws and reg- 
 ulations is derived from the police power, a power which the 
 states possessed before the organization of the federal govern- 
 ment, and which they did not surrender in becoming members 
 of the union under the constitution ; and although the supreme 
 court of the United States has refrained from any attempt to 
 define the limits of that power, yet it has, in numberless judi- 
 cial judgments, distinctly recognized the authority of the state 
 to enact, and administer by agencies of its own creation, quar- 
 antine laws and health laws of every description, and, indeed, 
 all laws that relate to matters completely within its territory 
 and which do not by their necessary operation affect the people 
 of other states. And according to the settled principles of the 
 constitution, and the division of governmental powers under it, 
 as declared by the supreme judicial tribunal, the police power 
 of a state is held to embrace, at least, such reasonable regula- 
 tions established directly by legislative enactment as will pro- 
 tect the public health and the public safety; and it is equally 
 well-settled that the state may invest local bodies, created and 
 called into existence by it for purposes of local administration, 
 with authority to in some appropriate way safeguard the public 
 .health and the public safety. The mode or manner in which 
 these results are to be accomplished is within the discretion of ■ 
 the state, subject, of course, so far as federal power is con- 
 cerned, only to the condition that no rule prescribed by the 
 state, nor any . regulation adopted by a ,loeal governmental 
 agency acting under the sanction of state legislation, shall con- 
 travene the constitution of the United States, nor infringe any 
 right granted or secured by that instrument. A local enact- 
 ment or regulation, even if based on the acknowledged police 
 power of a state, must always yield in case of conflict in the 
 
 BoKnoxville Iron Co. v. Harbison, 183 U. S. 13 (46:55) 
 
172 FEDERAL PROCEDURE AT LAW. § 200 
 
 exercise by the general government of any power it possesses 
 under the constitution, or with any right which that instrument 
 gives or secures."" A state legislature, acting within its com- 
 petency, when establishing regulations for the arrest and abate- 
 ment of local epidemics of diseases, and attempting to apply 
 specific remedies for their extirpation, is presumed to be aware 
 of the existence of opposing medical theories applicable to the 
 subject, when such opposing theories do in fact exist, and is 
 compelled, of necessity, to choose between them, and such choice 
 is not subject to judicial review. And a state statute providing 
 that the board of health of any city or town within the state, 
 if, in its opinion, it is necessary for the public health or safety, 
 shall require and enforce the vaccination and revaccination of 
 all the inhabitants thereof, and shall provide them with the 
 means of free vaccination, except children who present a eertifi- 
 ■cate, signed by a registered physician, that they are unfit sub- 
 jects for vaccination, no such exception being made in favor of 
 adults, and imposing a penality for any violation of the act, and 
 the adoption pursuant to the act by the local board of health of 
 a city of a regulation reciting the increasing prevalence of 
 smallpox in the city, and that the public health and safety re- 
 quire the speedy vaccination of all the inhabitants of the city, 
 and directing that the same should be speedily accomplished, 
 and appointing a designated physician to enforce the vaccina- 
 tion of all persons within the city, have been upheld as a valid 
 exercise of the police power, and not an infringement of any 
 rights granted or secured by any provision of the federal con- 
 stitution."^ 
 
 § 200. Same — ^Power of municipal corporations to impose li- 
 cense fee on interstate telegraph lines to pay cost of police 
 supervision. — Municipal corporations may, by legislative per- 
 mission, exercise local governmental supervision over telegraph 
 lines engaged in interstate commerce, and may impose and 
 collect an annual license fee on each pole and each mile of wiro 
 wthin its limits, for the purpose of covering the expense in- 
 curred in the enforcement of such governmental supervision 
 and the proper and necessary police rules and regulations. 
 
 60 Jacobson v. Massachusetts, 197 "i Jacobson v. Massachusetts, 196 
 
 U. S. 11-39 (49:643), and authorl- U. S. 11-39 (49:643). 
 ties cited. 
 
§ 201 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. ITS 
 
 Sueh a license fee is not a tax on the property of the company, 
 nor on its transmission of messages, nor on the receipts from 
 such transmission, nor on the privilege of interstate commerce,, 
 but is a charge to reimburse the expenses of police supervision 
 of the property and instrumentalities used therein, the munici- 
 pality not being bound to furnish such supervision at its own 
 cost.«^ 
 
 § 201. Same — Power of the state to protect local commerce 
 and local industries from unlawful restraints and monopolies. 
 All contracts, agreements, combinations and conspiracies, whose 
 inevitable tendency is to impose restraints upon, or to pre- 
 vent or diminish competition or increase or diminish prices, or 
 wages, or to create monopolies, in local commerce, or in mining 
 or manufactures, or in furnishing to the public illuminating 
 gas, or coal, or other articles or commodities of prime necessity, 
 are injurious to the public, and contrary to public policy; and 
 the state may, in the exercise of its police power, repress and 
 extirpate such evils, either by appropriate legislation, or by the 
 application of the principles of the common law, as the ease 
 may require."^ 
 
 62 Atlantic & Pacific Telegraph 
 Co. V. City of Philadelphia, 190 U. 
 S. 160, 169 (47:995); Western 
 Union Telegraph Co. v. New Hope, 
 187 U. S. 419 (47:240). 
 
 63 Morris Run Coal Co. v. Bar- 
 clay Coal Co., 68 Pa. 173; Arnot v. 
 Pillston & E. Coal Co., 68 N. Y. 
 558, 23 Am. Rep. 190; Craft v. 
 McConoughy, 79 111. 346, 22 Am. 
 Rep. 171; People v. Chicago Gas 
 Light Trust Co., 130 111. 269, 22 
 N. B. 798, 8 L. R. A. 497; Rich- 
 ardson V. Buhl, 77 Mich. 632, 6 L. 
 R. A. 457, 43 N. W. 1102; India 
 Boggang V. Kock, 14 La. Ann. 164; 
 Santa Clara Valley Mill & Lumher 
 Co. V. Hayes, 76 Cal. 387, 18 Pac. 
 391; Gibbs v. Consolidated Gas Co. 
 of Baltimore, 130 U. S. 396, 412 
 (32:979); Central Ohio Salt Co. v. 
 Guthrie, 35 Ohio St. 666; People 
 V. Sheldon, 139 N. Y. 251, 34 N. E. 
 785; Judd v. Harrington, 139 N. Y. 
 
 105, 34 N. E. 790; Leonard v. 
 Poole, 114 N. Y. 371, 21 N. E. 707; 
 Nester v. Brewing Co., 161 Pa. St. 
 473, 29 Atl. 102; Emery v. Candle 
 Co., 47 Ohio St. 320, 24 N. B. 660; 
 Chapin v. Brown, 83 Iowa, 156, 48 
 N. W. 1074; Anderson v. Jett, 89 
 Ky. 375, 12 S. W. 670; More v. 
 Bennett, 140 111. 69, 29 N. E. 888; 
 Ford V. Association, 155 111. 166, 
 39 N. E. 651; Bishop v. Preserves 
 Co., 157 111. 284, 41 N. E. 765; As- 
 sociation V. Niezerowski, 95 Wis. 
 129, 70 N. Wt 166; Vulcan Powdler 
 Co. v. Hercules Powder Co., 96 
 Cal. 510, 31 Pac. 581; Oil Co. v. 
 Adam, 83 Texas, 650, 19 S. W. 274; 
 State V. Shippers' Compress & 
 Warehouse Co., 95 Texas, 603, 6» 
 S. W. 58; State v. Laredo Ice Co., 
 96 Tex. 461, 73 S. W. 951; Waters- 
 Pierce Oil Co. V. Texas, 177 U. S. 
 28, 47 (44:657); National Cotton 
 Oil Co. v. Texas, 197 U. S. 115, 133 
 
17J: FEDEEAL PROCEDURE AT. LAW. § 203 
 
 § 202. Same — Same — Distinction between commerce and 
 manufactures. — In eases where the coinmercial power of the 
 United States is invoked, for the purpose of repressing mono- 
 polies in, and restraints upon, and eopispiraey against trade 
 and commerce, it is important to observe the distinction be- 
 tween commerce,^* and manufactures,*'' and otlier local in- 
 dustries, in order to determine whether the transaction in ques- 
 tion falls within the corrective jurisdiction of congress, or 
 within the police power of the state. The fact that an article 
 is manufactured for export to another state does not of itself 
 make it an article of commerce; and the intent of the manu- 
 facturer does not determine the time when the article or pro- 
 duet passes from the control of the state and becomes an ar- 
 ticle of commerce; and a combination within a state intended 
 to secure a monopoly of the manufacture of sugar in that state 
 relates to manufacture, and not to interstate or foreign com- 
 merce, although the commodity manufactured is intended for 
 export to other states and foreign countries."" Biit when a 
 ■contract is made for the sale and delivery of an article in an- 
 other state, the transaction is one of interstate commerce, al- 
 though the vendor has also agreed to manufacture the article 
 so sold, and a combination to control and monopolize such 
 transactions is a restraint of interstate commerce, and obnox- 
 ious to the statute enacted by congress upon that subject."^ 
 
 § 203. Same — Growth and expansion of the police power 
 since the adoption of the late amendments.— The discussion, in 
 this connection, of the police power of the states, has been, in 
 part at least, in support of the general proposition, that the 
 adoption of the thirteenth, fourteenth and fifteenth amend- 
 ments to the federal constitution has not had the efPect to 
 change our theory and system of government, nor to change 
 
 (49:689); United States v. E. C. ec United States v. E. C. Knight 
 
 Knight Co., 156 XI. S. 1, 46 Co., 156 U. S. 1 (39:325) ; Kldd v. 
 (39:325); United States v. Addys- ' Pearson, 128 U. S. 1, 24 (32:346); 
 
 ton Pipe & Steel Co., 85 Fed. Rep. Coe v. Errall, 116 U. S. 517 
 
 721. " (29:715). 
 
 6* United States v. B. C. Knight s^ Addyston Pipe & Steel Co. v. 
 
 Co., 156 U. S. 1 (39:325). United States, 175 U. S. 211 
 
 esAddyston Pipe & Steel Co. v. (44:136). 
 United States, 175 U. S. 211 
 (44:136). 
 
:§ 203 LIMITATIONS IMPOSED BY FEDEEAL CONSTITUTIOISr. 175 
 
 -the relations of the s-tate and federal governments to each other, 
 nor the relations of those governments to the people, nor to dis- 
 turb the distribution of governmental powers between the state 
 ■and federal governments, as they had previously existed ; °' and 
 it is submitted that an examination of the decisions of the sus- 
 preme court of the United States upon this subject will show that 
 the police power of the states has grown, developed and expanded 
 in its application piore since the adoption of the late amendments, 
 than in the whole of our constitutional history prior to that 
 time. The expanding character of this power is recognized by 
 the supreme court of the United States in an opinion by Mr. 
 ■Justice Brown, in which he said : ' ' The right of contract, how- 
 ever, is itself subject to certain limitations which the state 
 may lawfully impose in the exercise of its police power. While 
 this power is inherent in all governments, it has doubtless been 
 greatly expanded in its application during the last century, 
 owing to the enormous increase in the number of occupations 
 -which are dangerous, or so far detrimental to the health of 
 ■employees as to demand special precaution for their well-being 
 and protection, or the safety of adjacent property. While this 
 •court has held that the police power cannot be brought for- 
 'ward as an excuse for oppressive and unjust legislation, it may 
 be lawfully resorted to for the purpose of preserving the pub- 
 lic health, safety, or morals, or the abatement of public nui- 
 ■sances, and a large discretion is necessarily vested in the legis- 
 lature to determine, not only what the interests of the public 
 Tequire, but what measures are necessary for the protection of 
 ■such interests." And after quoting from an opinion of Chief 
 Justice Shaw upon the extent and limitations of the power, he 
 added: "This power, legitimately exercised, can neither be 
 limited by contract nor bartered away by legislation. While 
 this power is necessarily inherent in every form of government, 
 it was, prior to the adoption of the constitution, but sparingly 
 used in this country. As we were then almost purely an agri- 
 'Cultural people, the occasion for any special protection to a 
 particular class did not exist. Certain profitable employments, 
 such as lotteries and the sale of intoxica:ting liquors, which 
 were then considered to be legitimate, have since fallen under 
 the ban of public opinion, and are now eithei" altogether pro- 
 
 68 Ante, sec. 175. 
 
176 FEDERAL PROCEDURE AT LAW. § i.04 
 
 hibited, or made the subject of stringent police regualtions. 
 The power to do this has been repeatedly affirmed in this 
 court. "«^ 
 
 § 204. The power of the states to maintain their own internal 
 polity and judicial systems not taken away by the fourteenth 
 amendment. — ^I'he fourteenth amendment did not deprive the 
 states of their power, each, respectively, to divide its territory 
 into appropriate and convenient political and judicial divi- 
 sions, and to devise, determine, adapt, establish and maintain 
 its own internal polity and judicial system, and to create, or- 
 dain, establish and maintain its own courts of judicature and 
 distribute its judicial power, and prescribe . its own judicial 
 procedure, and to adjust the whole to the varied and varying 
 necessities of its people, and to regulate, modify or change 
 the same as the growth and changing conditions of society may 
 require; the only limitation upon the power is, that no state 
 can deprive particular persons or classes, of persons of equal 
 and impartial justice under the law, nor subject them to the 
 partial and arbitrary exercise of the powers of government, 
 unrestrained by the established principles of private right and 
 distributive justice.^" 
 
 In the case first above cited, it was held that the clause of 
 the fourteenth amendment, which prohibits a state from deny- 
 ing to any person the equal protection of the laws, did not 
 thereby prohibit the state from prescribing the jurisdiction of 
 
 esHolden v. Hardy, 169 U. S. S. 405 (33:193) ;• Churcli v. Kel- 
 
 366, 398 (42:780). sey, 121 U. S. 282 (30:960); 
 
 70 Bowman v. Lewis, 101 TJ. S. Robards v. Lamb, 127 U. S. 58 (32: 
 
 22 (25:989); Leeper v. Texas, 139 60); Kauffman v. Wooters, 13'8 TJ. 
 
 V. S. 462, 467 (35:225); Cald- S. 285); York v. Texas, 137 U. S. 
 
 well V. Texas, 137 U. S. 692 (34: 15 (34:604); Johnson v. Chicago 
 
 816); Hurtado v. California, 110 & Pac. Elev. Co., 119 TJ. S. 388 
 
 U. S. 516 (28:232); Spies v. Illin- (30:447); Louisville & Nashville 
 
 ois, 123 U. S. 131, 166 (31:80); Railroad Co. v. Schmidt, 177 U. 
 
 Walker v. Sauvinet, 92 U. S. 90 S. 230 (44:747); Simon v. Craft, 
 
 (23:678); Gibson v. State of Mis- 182 U. S. 427 (45:1165); McNulty 
 
 sissippi, 162 U. S. 565, 592 (40: v. California, 149 U. S. 645 (37: 
 
 1075); Ex parte Kemmler, 136 U. 882); Vincent v. California, 149 
 
 S. 436, 449 (34:519); Iowa Central TJ. S. 648 (37:884); Brown v. New 
 
 Railway Company v. Iowa, 160 TJ. Jersey, 175 TJ. S. 175 (44:120); 
 
 S. 389, 394 (40:467); McBlvaine v. West v. Louisiana, 194 U. S. 25S 
 
 Brush, 142 U. S. 155, 160 (35: (48:965); Maxwell v. Dow, 176 U. 
 
 971); Preeland v. Williams, 131 U. S. 581, 617 (44:597). 
 
§ 204 LIMITATIONS IMPOSED BT FEDERAL CONSTITUTION. 177 
 
 its several courts either as to their territorial limits or the 
 subject-matter, or amount or finality of their respective judg- 
 ments or decrees; that a state might establish one system of 
 laws in one portion of its territory and another system in an- 
 other, provided it did not encroach upon the proper jurisdic- 
 tion of the United States, nor abridge the privileges or immuni- 
 ties of citizens of the United States, nor deny to any personi 
 within its jurisdiction the equal protection of the laws in the: 
 same district, nor deprive him of his rights without due process; 
 of law. In the course of the opinion, which was delivered by 
 Mr. Justice Bradley, he said : 
 
 "We might go still further and say, with undoubted truth, 
 that there is nothing in the constitution to prevent any state 
 from adopting any system of laws or judicature it sees fit for 
 all or any part of its territory. If the state of New York, for 
 example, should see fit to adopt the civil law and its method 
 of procedure for New York City and the surrounding counties, 
 and the common law and its methods of procedure for the rest 
 of the state, there is nothing in the constitution of the United 
 States to prevent its doing so. This would not of itself, within 
 the meaning of the fourteenth amendment, be a denial to any 
 person of the equal protection of the laws. If every person re-' 
 siding or being in either portion of the state should be accorded 
 the equal protection of the laws prevailing there, he could not 
 justly complain of a violation of the clause referred to. For, 
 as before said, it has respect to persons and classes of persons. 
 It means that no person or classes of persons shall be denied 
 the same protection of the laws which is enjoyed by other per- 
 sons or other classes of persons in the saine place and under like 
 circumstances. The fourteenth amendment does not profess 
 to secure to all persons in the United States the benefit of the 
 same laws and the same remedies. Great diversity in these re- 
 spects may exist in two states separated only by an imaginary 
 line. On one side of this line there may be a right of trial by 
 a jury, and on the other side no such right. Each state pre- 
 scribes its own modes of judicial proceedings. If diversities, 
 of laws and judicial proceedings may exist in the several states, 
 without violating the equality clause in the fourteenth amend- 
 ment, there is no solid reason why there may not be such di- 
 versities in different parts of the same state. A uniformity 
 which is not essential as regards different states cannot be es- 
 13 
 
178 FEDEHAL PEOCEDUBE AT LAW. § 205 
 
 sential as regards different parts of a state, provided that in 
 each and all there is no infraction of the constitutional pro- 
 vision. Diversities virhich are allowable in different states are 
 allowable in different parts of the same state. Where a part 
 of a state is thickly settled, and another part has but few in- 
 habitants, it may be desirable to have different systems of ju- 
 dicature for the two portions, — trial by jury in one, for exam- 
 ple, and not in the other. Large cities may require a multi- 
 plication of courts and a peculiar arrangement of jurisdictions. 
 It would be an unfortunate restriction of the powers of the 
 state government if it could not, in its discretion, provide for 
 these various exigencies. If a Mexican state should be ac- 
 quired by treaty and added to an adjoining state or part of a 
 state in the United States, and the two should be erected into 
 a new state, it cannot be doubted that such new state might 
 allow the Mexican laws and judicature to continue unchanged 
 in the one portion, and the common law and its correspond- 
 ing judicature in the other portion. Such an arrangement 
 would not be prohibited by any fair construction of the four- 
 teenth amendment. It would not be based on any respect of 
 persons or classes, but on municipal considerations alone, and 
 a regard for the welfare of all classes within the particular ter- 
 ritory or jurisdiction. ' ' ''''■ 
 
 § 205. Same — Sovereignty for protection of fundamental 
 rights rests with the states — Not in the federal government. — 
 Since the adoption of the fourteenth amendment, as anterior to 
 that time, the states are charged with the sovereign duty of, 
 and vested with the sovereign power for, the protection and 
 vindication of the rights of life, liberty and property of their 
 citizens, and may enact and enforce all laws, not inconsistent 
 with the constitution' of the United States, which they may 
 deem appropriate to that end ; the amendment furnishes an ad- 
 ditional guaranty against any encroachment by the state upon 
 the fundamental rights which belong to every citizen as a mem- 
 ber of society, and authorizes congress to enforce its provisions 
 by appropriate legislation, but it does not confer upon congress 
 the power to enact a code of municipal laws, covering the do- 
 main of the rights of life, liberty and property, defining them, 
 and providing for their protection and vindicaton. The pri- 
 
 Ti Bowman v. Lewis, 101 U. S. 22 (25:989). 
 
§ 205 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 179 
 
 mary reason for the adoption of that amendment was to secure 
 the enjoyment of liberty to the colored race; yet it is not re- 
 stricted to that purpose, and it applies to every one, white or 
 black, who comes within its provisions. But the protection of 
 the citizen in his rights as a citizen of the state still remains 
 with the state ; and sovereignty, for the protection of the rights 
 of life and personal liberty within the respective states, rests 
 alone with the states. The amendment is directed against state 
 action; it is prohibitory in its character; its provisions are pro- 
 hibitions upon the states, and the legislation which congress 
 is authorized to enact is such legislation as may be appropriate 
 to enforce the prohibition, and correct and annul the prohib- 
 ited state action and provide relief against it.'^^ In >the '.'Civil 
 Rights Cases," in which the supreme court held the first and 
 second sections of the "Civil Rights Act" unconstitutional, 
 Mr. Justice Bradley, delivering the opinion of the court, said: 
 ' ' The first section of the fourteenth amendment, which is the 
 one relied on, after declaring who shall be citizens of the United 
 States, and of the several states, is prohibitory in its charac- 
 ter, and prohibitory on the states. It declares that 'No state 
 shall make or enforce any law which shall abridge the privi- 
 leges or immunities of citizens of the United States; nor shall 
 any state deprive any person of life, liberty or property with- 
 out due process of law; nor deny to any person within its 
 jurisdiction the equal protection of the laws.' It is state ac- 
 tion of a particular character that is prohibited. Individual 
 invasion of individual rights is not the subject-matter of the 
 .amendment. It has a deeper and broader scope. It nullifies, 
 and makes void all state legislation, and state action of every 
 kind, which impairs the privileges and immunities of citizens 
 of the United States, or which injures them in life, liberty or 
 
 72 Slaughter-House Cases, 16 S. 436, 448 (34:519); Hodgson v. 
 
 Wall. 36 (21:394); United States Vermont, 168 U. S. 262 (42:461); 
 
 V. Cruikshank, 92 U. S. 542 (23: Holden v. Hardy, 169 U. S. 366 
 
 S88); Civil Rights Cases, 109 U. (42:780); Ballu v. Nebraska, 176 
 
 S. 3, 62 (27:836); United States U. S. 83 (44:382); Re Converse, 
 
 V. Harris, 106 U. S. 629, 644 (27: 137 U. S. 624 (34:796); Caldwell 
 
 290); Hurtado v. California, 110 v. Texas, 137 U. S. 692 (34:816); 
 
 U. S. 516 (28:232); Brown v. New Leiper v. Texas, 139 U. S. 462 (35; 
 
 Jersey, 175 U. S. 172 (44:119); 225); Virginia v. Rives, 100 U. S. 
 
 McNulty V. California, 149 U. S. 313 (25:667); United States v. 
 
 4545 (37:882); Re Kemmler, 136 U. Cruikshank, 1 Woods, 316. 
 
180 FEDERAL PEOCEDUEE AT LAW. § 205 
 
 property without due process of law, or which denies to any 
 of them the equal protection of the laws. It not only does this, 
 but, in order that the national will thus declared, may not be a 
 mere initum fulmeti, the last section of the amendment invests 
 congress with the power to enforce it by appropriate legisla- 
 tion. To enforce what ? To enforce the prohibition. To adopt 
 appropriate legislation for correcting the effect of such pro- 
 hibited state laws and state acts, and thus to render them 
 effectually null, void, and innocuous. This is the legislative- 
 power conferred \ipon congress, and this is the whole of it. It 
 does not invest congress with the power to legislate upon sub- 
 jects which are within the domain of state legislation; but to- 
 provide modes of relief against state legislation or state action,, 
 of the kind referred to. It does not authorize congress to 
 create a code of municipal law for the regulation of private- 
 rights; but to provide modes of redress against the operation 
 of state laws, and the action of state officers, executive or judi- 
 cial, when these are subversive of the fundamental rights speci- 
 fied in the amendment. Positive rights and privileges are un- 
 doubtedly secured by the fourteenth amendment ; but they are- 
 secured by way of prohibition against state laws and state 
 proceedings affecting those rights and privileges, and by power 
 given to congress to legislate for the purpose of carrying 
 such prohibition into effect; and such legislation must, ne- 
 cessarily, be predicated upon such supposed state laws or 
 state proceedings, and be directed to the correction of their 
 operation and effect. « * * Until some state law has been 
 passed or some state action through its officers or agents has- 
 been taken, adverse to the rights of citizens sought to be pro- 
 tected by the fourteenth amendment, no legislation of the 
 United States under said amendment, nor any proceeding 
 under such legislation, can be called into activity; for the 
 prohibitions of the amendment are against state laws and state- 
 acts done under state authority. Of course, legislation may 
 and should be provided in advance to meet the exigency 
 when it arises; but it should be adapted to the mischief and 
 wrong which the amendment was intended to provide against; 
 and that is, state laws, or state action of some kind, adverse 
 to the right of the citizen secured by the amendment. Such 
 legislation cannot properly cover the whole domain of rights. 
 
§ 205 LIMITATIONS IMPOSED BY FEDERAL COSTITUTION. 181 
 
 appertaining to life, liberty and property, defining them 
 and providing for their vindication. That ^vould be to estab- 
 lish a code of municipal law regulative of all private rights 
 between man and man in society. It would be to make con- 
 gress take the place of the state legislatures and to supersede 
 them. It is absurd to affirm that, because the rights of life, 
 liberty and property, which include all civil rights that men 
 have, are, by the amendment, sought to be protected against 
 invasion on the part of the state without due process of law, 
 congress may, therefore, provide due process of law for their 
 vindication in every case; and that, because the denial by a 
 state to any persons, of the equal protection of the laws is pro- 
 hibited by the amendment, therefore congress may establish 
 laws for their equal protection. In fine, the legislation which 
 congress is authorized to adopt in this behalf, is not general 
 legislation upon the rights of the citizen, but corrective legisla- 
 tion, that is, such as may be necessary and proper for counter- 
 acting such laws as the states may adopt or enforce, and which, 
 by the amendment, they are prohibited from making or enforc- 
 ing, or such acts and proceedings as the state may commit or 
 take, and which, by the amendment, they are prohibited from 
 committing or taking. It is not necessary for us to state, if 
 we could, what legislation would be proper for congress to 
 adopt. It is sufficient for us to examine whether the law in 
 question is of that character. 
 
 "An inspection of the law shows that it makes no reference 
 whatever to any supposed or apprehended violation of the 
 fourteenth amendment on the part of the states. It is not pred- 
 dicated on any such view. It proceeds ex directo to declare 
 that certain acts cojnmitted by individuals shall be deemed 
 offenses, and shall be prosecuted and punished by proceedings 
 in the courts of the United States. It does not profess to be 
 corrective of any constitutional wrong committed by the states ; 
 it does not make its operation to depend upon any such wrong 
 committed. It applies equally to cases arising in states which 
 have the justest laws respecting the personal rights of citi- 
 zens, and whose authorities are ever ready to enforce such laws, 
 as to those which arise in states that may have violated the 
 amendment. In other words, it steps into the domain of local 
 jurisprudence, and lays down rules for the couduct of in- 
 
182 FEDERAL PEOCEDUEE AT LAW. § 206 
 
 clividuals in society towards each other, and imposes sanctions 
 for the enforcement of those rules, without referring in any 
 manner to any supposed action of the state or its authority. ' ' ''' 
 
 § 206. Same — Same — Same — Individual invasion of the 
 rights guarantied by the fourteenth amendment. — Inasmuch 
 as the prohibitions of the fourteenth amendment have reference 
 to state action exclusively, and not to any action of private in- 
 dividuals, it, therefore, follows that congress has no power to 
 enact legislation framed to protect from invasion by private 
 persons the rights guarantied by the amendment; ''* and con- 
 gress cannot confer on the federal courts jurisdiction to indict, 
 try and punish private individuals for conspiring to deprive 
 citizens of the United States, in a state, of the rights secured 
 by the amendment.''^ Congress had no power to enact the 
 second section of the enforcement act of April 20, 1870, which 
 attempted to make it a highly penal offense for two or more 
 persons in any state or territory to "conspire or go in disguise 
 upon the highway or on the premises of another for the pur- 
 pose of depriving, either directly or indirectly, any person or 
 class of persons of the equal protection of the laws or of equal 
 privileges or immunities under the laws; or for the purpose 
 of preventing or hindering the constituted authorities of any 
 state or territory from giving or securing to all persons within 
 such state or territory the equal protection of the laws.",'" 
 That provision of the statute has been held unconstitutional 
 and the supreme court, in passing upon its validity, after a 
 review of the authorities, said : 
 
 "These authorities show coneltisively that the legislation un- 
 der consideration finds no warrant for its enactment in the 
 fourteenth amendment. The language of that amendment does 
 not leave the subject in doubt. When the state has been guilty 
 of no violation of its provisions; when it has not made or en- 
 forced any law abridging the privileges or immunities of citi- 
 zens of the United States ; when no one of its departments has 
 
 73 Civil Rights Cases, 109 U. S. 629, 644 (27:290); Civil Rights 
 
 3, 62 (27:836). Cases, 109 U. S. 3, 62 (27:841). 
 
 '* Ex parte Commonwealth of ^5 United States v. Cruikshank, 
 
 Virginia, 100 U. S. 313, 338 (25: 92 V. S. 544 (23:588). 
 667); United States v. Cruik- to 11 U. S. Stat, at L. 13, 14, U. 
 
 shank, 92 U. S. 544 (23:588); S, Rev. Stat. sec. 5519. 
 United States v. Harris, 106 U. S. 
 
§ 206. LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 183 
 
 deprived any person of life, liberty or property, without due 
 process of law, nor denied to any persons within its jurisdic- 
 tion the equal protection of the laws; when, on the contrary, 
 the laws of the state, as enacted by its legislative and construed 
 by its judicial and administered by its executive departments, 
 recognize and protect the rights of all persons, the amendment 
 imposes no duty and confers no power upon congress." '^ 
 
 And in the ' ' Civil Rights Cases, ' ' Mr. Justice Bradley, stated 
 the principle of constitutional construction as follows : 
 
 "In this connection it is proper to state that civil rights, 
 such as are guarantied by the constitution against state aggres- 
 sion, cannot be impaired by the wrongful acts of individuals, 
 unsupported by state authority in the shape of laws, customs 
 or judicial or executive proceedings. The wrongful act of an 
 individual, unsupported by any such authority, is simply a 
 private wrong, or a crime of that individual; an invasion of 
 the rights of the injured party, it is true, whether they affect 
 his person, his property or his reputation; but if not sanc- 
 tioned in some way by the state, or not done under state au- 
 thority, his rights remain in full force, and may presumably be 
 vindicated by resort to laws of the state for redress. An in- 
 dividual cannot deprive a man of his right to vote, to hold 
 property, to buy and sell, to sue in the courts or to be a witness 
 or a juror; he may, by force or fraud, interfere with the enjoy- 
 ment of the right in a particular case ; he may commit an as- 
 sault against the person, or commit murder, or use ruffian vio- 
 lence at the polls, or slander the good name of a fellow citi- 
 zen; but, unless protected in these wrongful acts by some shield 
 of state law or state authority, he cannot destroy or injure the 
 right; he will only render himself amenable to satisfaction 
 or punishment; and amenable therefore to the laws of the state 
 where the wrongful acts are committed. Hence, in all those 
 cases where the constitution sects to protect the rights of the- 
 citizen against discriminative and unjust laws of the state by 
 prohibiting such laws, it is not individual offenses, but abroga- 
 tion and denial of rights, which it denounces, and for which 
 it clothed the congress with power to provide a remedy. This 
 abrogation and denial of rights for which the states alone were 
 or could be responsible, was the great seminal and fundamen- 
 
 " Harris v. United States, 629 644 (27:290). 
 
184 FBDEEAL PROCEDURE AT LAW. § 207 
 
 tal wrong which was intended to be remedied. And the rem- 
 edy to be provided must necessarily be predicated upon the 
 wrong. It must assume that in the eases provided for, the evil 
 or wrong actually committed rests upon some state law or state 
 authority for its excuse and perpetration. " ^' 
 
 In one of the cases cited above in this section, involving the 
 power of congress to legislate under the late amendments, and 
 to define, punish and repress crime within the states. Chief 
 Justice "Waite, delivering the opinion of the court, said: 
 
 "The rights of life and personal liberty are natural rights of 
 man. 'To secure these rights,' says the Declaration of Inde- 
 pendence, 'governments are instituted among men, deriving 
 their just powers from the consent of the governed. The very 
 highest duty of the states, when they entered into the Union 
 under the constitution, was to protect all persons within 
 their boundaries in the enjoyment of these 'unalienable rights 
 with which they were endowed by their Creator.' Sovereignty, 
 for this purpose, rests alone with the states. * * * xhe 
 fourteenth amendment prohibits a state from denying to any 
 person within its jurisdiction the equal protection of the laws ; 
 but this does not, any more than the one which precedes it and 
 which we have just considered, add anything to the rights which 
 one citizen has under the constitution against another. The 
 equality of the rights of citizens is a principle of republicanism. 
 Every republican government is in duty bound to protect aU 
 its citizens in the enjoyment of this principle, if within its 
 power. That duty was originally assumed by the states; and 
 it still remains there. The only obligation resting upon the 
 United States is to see that the states do not deny the right. 
 This the amendment guaranties, but no more. The power of 
 the national government is limited to this guaranty. '"° 
 
 § 207. Same — Same — Same — Same — Protection of the elect- 
 ive franchise. — The decisions of the supreme court of the 
 United States upon the right of suffrage, since, the adoption 
 of the thirteenth, fourteenth and fifteenth amendments, have 
 established the following propositions : 
 
 (1) Neither the constitution of the United States as origi- 
 nally adopted, nor anj'^ of the amendments thereto, has coii- 
 
 78 Civil Rights Cases, 109 TJ. S. ■?» United States v. Cruikshanks. 
 
 3, 62 (27:841). 92 U. S. 544 (23:588). 
 
§ 207 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 185 
 
 f erred the right of suffrage upon any one. (2) The United 
 States have no voters of their own creation in the states. 
 (3) The right of suffrage is not a necessary attribute of national 
 citizenship. (4) The fifteenth amendment has invested the citi- 
 zens of the United States with a new constitutional right, 
 namely: exemption from discrimination in the exercise of the 
 elective franchise on account of race, color or previous condi- 
 tion of servitude. (5) This exemption from discrimination in 
 the exercise of the elective franchise on account of race, color 
 or previous condition of servitude, is a necessary attribute of 
 national citizenship. (6) The right to vote in the states comes' 
 from the states; the right to vote is conferred by the state, to 
 be exercised as the state may direct, and upon such terms as to 
 it may seem proper; and in granting the right the state maj' 
 determine what class or classes of its citizens shall vote, and 
 prescribe the qualifications of electors: provided, alwp,ys, that 
 no discrimination be made against persons or classes of persons 
 on account of race, color or previous condition of servitude. 
 (7) The first section of the fifteenth amendment, which de- 
 clares that "the right of citizens of the United States to vote 
 shall not be denied or abridged by the United States or by any 
 state on account of race, color or previous condition of servi- 
 tude," is a prohibition upon the government of the United 
 States and upon all the states; the provision is a limitation 
 upon state action, an-d also upon the action of the federal gov- 
 ernment, and has no reference to the action of private individ- 
 uals: and, therefore, congress is without power to enact gen- 
 eral legislation framed to protect from invasion by private 
 persons the purity of the ballot and the right to vote.'" 
 
 80 James v. Bowman, 190 U. S. fourth and fifth sections of the 
 
 127, 142 (47:979); Minor v. Hap "Enforcement Act," (Act, May 31, 
 
 persett, 21 ^Wall. 178 (22:631); 1870, 16 U. S. Stat, at L. 140), were 
 
 United States v. Crulkshank, 92 intended to carry into effect the 
 
 U. S. 542, 569 (23:588); United provisions of the fifteenth amend- 
 
 States V. Rees, 92 U. S. 214 (23: ment; but the third, fourth and 
 
 563); Pope v. Williams, 193 U. S. fifth sections of the act have all 
 
 621, 034 (48:817); Lackey v. Uni- been held unconstitutional; these 
 
 ted States, 46 C. C. A. 189; Karen invalid sections constitute sees. 
 
 V. United States, 57 C. C. A. 486; 2007. 2008, 5506, 5507 of the U. 
 
 United States v. Harris, 106 U. S. S. Rev. Stat, (see authorities 
 
 €29 (27:290). The first, third, above cited in this section). 
 
186 FEDERAL PROCEDURE AT LAW. § 209 
 
 § 208. Same — Power of the states to maintain their own ju- 
 dicial procedure. — The states have full control over the pro- 
 cedure in their own courts, both in civil and criminal cases, 
 subject only to the qualification that such procedure must not 
 work a denial of fundamental rights or conflict with specific 
 and applicable provisions of the federal constitution ; they, the 
 states, are not tied down by any provision of the federal con- 
 stitution to the practice and procedure which existed at the 
 common law.^^ The first ten amendments to the federal con- 
 stitution contain no restrictions on the powers of the states,, 
 but were intended to operate solely on the federal govern- 
 ment f^ and the adoption of the fourteenth amendment did not 
 have the effect to impose upon the states the restraints and 
 limitations in regard to judicial procedure contained in the 
 fourth, fifth, sixth, seventh and eighth amendments to the con- 
 stitution of the United States.*' 
 
 {}}) The Intent and Application of the Late Amendments 
 Worked out by the "Gradual Process of Judicial In- 
 clusion and Exclusion." 
 § 209. Judicial method of constitutional construction — Early 
 constitutional history. — In the great cases carried to the su- 
 preme court of the United States in the early period of our 
 constitutional history, the contentions of the respective parties 
 brought under judicial examination the nature of the complex 
 system of government established by the constitution and the 
 distribution of governmental powers under it, and not infre- 
 
 81 Brown v. New Jersey, 1T5 U. Davis v. Texas, 139 U. S. 651 (35: 
 S. 172, 177 (44:119) and authori- 300);' McEIvaine v. Brush, 142 U. 
 ties tliere cited; Maxwell v. Dow, S. 155 (35:971); Thorrington v. 
 176 U. S. 581 (44:597) and auth- Montgomery, 147 TJ. S. 490 (37: 
 orities there cited; West v. Louis- 254); Miller v. Texas, 153 U. S. 
 iana, 194 U. S. 258-267 (48:965). 535 (38:812); Brown v. New Jer- 
 
 82 Barron v. Baltimore, 7 Pet. sey, 175 TJ. S. 172 (44:119); Hol- 
 243 (8:672); Fox v. Ohio, 5 How. den v. Hardy, 169 TJ. S. 366 (42: 
 410 (12:213); Twitchell v. Penn- 780); Maxwell v. Dow, 176 TJ. S. 
 sylvania, 7 Wall. 231 (19:223); 581 (44:597). 
 
 United States v. Cruikshank, 92 S3 Maxwell v. Dow, 176 TJ. S. 581 
 
 U. S. 542 (23:588); Spies v. Illin- (44:597); Brown v. New Jersey, 
 
 ois, 123 U. S. 131 (31:80); Re 175 TJ. S. 172, 177 (44:119); West 
 
 Sawyer, 124 U. S. 200 (31:402); y. Louisiana, 194 U. S. 258, 267 (48: 
 
 Eilenbecker v. Plymouth County 965). 
 Dist. Ct, 134 TJ. S. 31 (33:801); 
 
§ 209 LIMITATONS IMPOSED BT FEDERAL CONSTITUTION. 187 
 
 quently put in issue the most vital powers of the federal gov- 
 ernment. Those cases, although prosecuted by private persons 
 to protect private rights, involved questions of national impor- 
 tance, made so by the contentions of the parties and their coun- 
 sel; they involred the nature and extent of the respective 
 powers of the state and federal governments, and the question 
 of supremacy in case of a conflict; frequently the decision of 
 the case as to the private right depended upon the question 
 whether the exercise of this or that power belonged to the state 
 or federal government; the doctrine of "strict construction," 
 of all grants of power to the federal government was vehe- 
 mently insisted upon. In this situation, while the cases called 
 for a decision upon the question of private rights, the national 
 interest in the result was of overshadowing ijnportance; the 
 domestic tranquility of the country required that the principles 
 of the government should be settled by judicial construction 
 of the constitution as speedily as possible, and in that emer- 
 gency the supreme court seems to have adopted the following 
 methods of constitutional construction: 
 
 The court entered upon a consideration (1) of the theory and 
 nature of the dual or complex system of government estab- 
 lished bj' the constitution ; (2) a consideration of the classes, 
 nature and extent of the powers conferred upon the general 
 government, and the means and methods of their execution, 
 and in that connection the doctrine of "implied powers," and 
 that clause of the constitution which grants to congress power 
 "to make all laws which shall be necessary and proper for 
 carrying into execution" all the express powers of the govern- 
 ment, received full consideration and were given full effect; 
 (3) a consideration of the classes, nature and extent of the 
 powers reserved to the states; (4) a consideration of the lines 
 of demarkation between federal and state power; (5) a con- 
 sideration of the relations of the state and federal governments 
 toward each other, and the relations of both governments to- 
 the people, and the supremacy of the general government and 
 its right of ultimate decision and the means thereof, in all 
 cases of conflict between state and federal authority; and 
 (6) then followed 9,n examination, construction and applica- 
 tion of the particular constitutional provision involved, to thr 
 case before the court. The court seems to have proceeded 
 upon the assumption that, in view of the character of the con- 
 
188 FEDERAL PROCEDURE AT LAW. ' § 210 
 
 tentions made by the respective parties and their counsel, 
 ,an exposition, examination and understanding of the constitu- 
 tion as a whole, were necessary to an exposition and applica- 
 tion of its different provisions, and the opinions of the court, 
 were, necessarily, a discussion and exposition of the govern- 
 ment, exhibiting general definitions, and a delimitation of 
 state and federal powers, general rules of constitutional con- 
 struction, and a statement of the reasoning upon which the de- 
 cision of the court was founded. It is not by any means con- 
 tended that the court laid down any formula as to its method 
 of construction; but the process above indicated was, substan- 
 tially, the settled habit of the judicial mind in constitutional 
 constructicm during the early period of our constitutional his- 
 tory,** and even as long as Chief Justice Taney remained on 
 the bench.*^ 
 
 § 210. Same — Modern method — "Judicial inclusion and ex- 
 clusion." — Notwithstanding the late amendments impose im- 
 portant limitations upon the states, securing valuable rights 
 against state invasion, and these limitations are being con- 
 stantly invoked, upon writ of error from the supreme court of 
 the United States to the highest courts of the state, for the pur- 
 pose of avoiding state action, and setting, aside state legisla- 
 tion, yet, nevertheless, the court has steadily refused to an- 
 nounce any definition of the rights so secured, or to lay down 
 any general rules for the construction and application of the 
 provisions of the late amendments, and has announced that it 
 will ascertain the intent and application of the different pro- 
 visions of the amendments "by the gradual process of judicial 
 inclusion and exclusion, as the cases presented for decision 
 shall require, with the reasoning on which such decisions may 
 be founded. "'« 
 
 - 84 Martin v. Hunter's Lessee, 1 ss Dred Scott Case, 19 How. 393 
 
 Wheat. 304, 382 (4:97); Cohens v. (15:691); Ableman v. Booth, 21 
 
 Virginia, 6 Wheat. 264, 448 (5: How. 506, 526 (16:169). 
 
 252); McCulloeh v. Maryland, 4 ss Davidson v. New Orleans, 96 
 
 Wheat. 316, 434 (4:579); Gibbons U. S. 97, 108 (24:616); Hargar v. 
 
 V. Ogden, 9 Wheat. 1, 240 (6:23); Reclamation Dlst. Ill TJ. S. 707 
 
 Brown V. Maryland, 12 Wheat. 419 (28:572); Mo. Pac. Ry. Co. v. 
 
 (6:678); New York v. Miln, 11 Humes, 115 U. S. 512, 524 (29: 
 
 Pet. 102 (9:648); License Cases, 5 463); Oriental Ins. Co. v. Daggs, 
 
 How. 505 (12:256); Passenger 172 U. S. 557, 568 (43:552). 
 Cases, 7 How. 283, 573 (12:702), 
 
§ 211 LIMITATIONS IMPOSED BY PEDEEAL CONSTITUTION. 189" 
 
 § 211. Same — Same — Same— Usual points of alleged conflict 
 — Frivolous contentions of litigants. — There are three points in 
 which it is most usually alleged that state action is in conflict 
 with the limitations imposed by the amendments, viz : (1) The 
 exercise of the police power by the state ; "^ (2) the exercise of 
 the taxing power by the state; ^* and (3) the judicial procedure 
 of the state.^° And in some cases state legislation is alleged 
 to be in conflict with all three of the limitations contained in 
 the fourteenth amendment."" In a large percentage of the 
 cases, the alleged conflict between the limitations and state 
 action is not only without merit, but absolutely frivolous, so 
 much so that the supreme court has animadverted upon the 
 number and character of the contentions carried there. "^ In 
 the case last cited, the plaintiff in error alleged that, in a pro- 
 ceeding against her under the laws of the state of Louisiana, 
 to subject her real estate to the collection of a local assessment, 
 for local drainage, she was deprived of her property without 
 due process of law, in violation of the limitation in that respect 
 contained in the fourteenth amendment ; and the court, in over- 
 ruling the contention, speaking by Justice Miller, said : 
 
 "It is not a, little remarkable, that while the provision has 
 been in the constitution of the United States, as a restraint 
 upon the authority of the federal government, for nearly a 
 century, and while, during all that time, the manner in which 
 
 87 Slaughter-House Cases, 16 ss Maxwell v. Dow, 176 TJ. S. 
 
 Wall. 36, 130 (21:395); Munn v. 581, 617 (44:597) and authorities 
 
 111., 94 U. S. 113, 134 (24:77); there cited. 
 
 Barbier v. Connolly, 113 U. S. 27, 9» Slaughter-House Cases, 16 
 
 31 (28:923); Mugler v. Kansas, Wall. 36, 130 (21:395). In this 
 
 123 U. S. 623, 678 (31:205); Lou- case, the butchers of New Orleans 
 
 isville & Nashville Railroad Co. claimed that a state statute in the 
 
 V. Commonwealth of Ky., 161 U. S. exercise of the police power, reg- 
 
 677, 704 (40:849). ulating the slaughter of animals 
 
 8s Davidson v. New Orleans, 96 in that city was in conflict with 
 
 U. S. 97, 108 (24:916); Kelly v. all three of the limitations of the 
 
 Pittsburgh, 102 U. S. 586 (26: fourteenth amendment, and also 
 
 253); King v. MuUins, 171 U. S. imposed upon them "involuntary 
 
 404 (43:214); San Diego Land & servitude" in violation of the thir- 
 
 T. Co. v. National City, 174 U. S. teenth amendment. 
 
 739 (44:1154); Falhrook Irr. Co. oi Davidson v. New Orleans, ,96 
 
 V. Bradley, 164 U. S. 112 (41:369); U. S. 97, 108 (24:916). 
 League v. Texas, 184 U. S. 156 
 (46:478); et passim. 
 
190 FEDERAL PROCEDURE AT LAW. § 212 
 
 the powers of that government has been exercised have been 
 -.vatehed with jealousy, and subjected to the most rigid criti- 
 cism in all its branches, this special limitation upon all its 
 powers has rarely been invoked in the judicial forum or in the 
 more enlarged theater of public discussion. But while it has 
 been a part of the constitution, as a restraint upon the power 
 of the states, only a few years, the docket of this court is 
 crowded with cases in ■which we are asked to hold that state 
 courts and state legislatures have deprived their own citizens 
 of life, liberty or property without due process of law. There 
 is here abundant evidence that there exists some strange mis- 
 conception of the scope of this provision as found in the four^ 
 teenth amendment. In fact, it would seem, from the character 
 of many of the eases before us, and the arguments made in 
 them, that the clause under consideration is looked upon as a 
 means of bringing to the test of the decision of this court, the 
 abstract opinions of every unsuccessful litigant in a state court, 
 of the justice of the decision against him, and of the merits 
 of the legislation on which such a decision may be founded. ' ' ^^ 
 
 (e) Citizenship — National and State. 
 
 § 212. Citizenship defined. — The federal constitution nowhere 
 defines the meaning of the word citizen or citizens, either by 
 way of inclusion or exclusion, except in so far as this is done 
 by the affirmative declaration in the fourteenth amendment, 
 that "all persons born or naturalized in the United States, and 
 subject to the jurisdiction thereof, are citizens of the United 
 States and of the states wherein they reside;" and the consti- 
 tution must be interpreted, and the word citizen defined, in the 
 light of the common law, in whose language the instrument 
 was written, and the principles and history of which were fam- 
 iliarly known to the statesmen who framed it, and the people 
 of the states who adopted it. 
 
 According to the principles and definitions of the common 
 law, as ascertained and expounded by the supreme court of 
 the union, a citizen is a member of a political community, ow- 
 ing it allegiance and entitled to its protection, the allegiance 
 of the citizen and the protection of the political community 
 
 02 Davidson v. New Orleans, supra. 
 
% 212 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 191 
 
 being reciprocal obligations, and the one being a compensation 
 for the other; and, as applied to Amercian institutions, a citi- 
 zen is a member of the political community called the state, 
 and also of the larger, national community, called the United 
 States. Both men and women are citizens."^ 
 
 93 Minor v. Happersett, 21 Wall. 
 162, 178 (22:627); Dred Scott v. 
 Sandford, 19 How. 393 (15:691); 
 United States v. Wong Kim Ark, 
 169 U. S. 649, 732 (42:890); Uni- 
 ted States V. Cruikshank, 94 U. S. 
 542 (23:388). 
 
 In Minor v. Happersett, which, 
 was an action brought by a 
 woman in a state court in the 
 state of Missouri against a regis- 
 trar for refusing to register her 
 as a lawful voter, and was carried 
 by writ of error to the supreme 
 court of the United States, Chief 
 Justice Waite, delivering the 
 opinion of the court, said: 
 
 "It is contended that the pro- 
 vision and laws of the state of 
 Missouri which confines the right 
 of suffrage and registration there- 
 for to men, are in violation of the 
 constitution of the United States 
 and, therefore, void. The argu- 
 ment is, that as a woman born 
 or naturalized in the United States 
 and subject to the jurisdiction 
 thereof, is a citizen of the United 
 States and of the state in which 
 she resides, she has the right of 
 suffrage as one of the privileges 
 and immunities of her citizenship, 
 which the state cannot by its laws 
 ■or constitution abridge. 
 
 "There is no doubt that women 
 may be citizens. They are per- 
 sons, and by the fourteenth 
 amendment, 'All persons born or 
 naturalized in the United States 
 and subject to the jurisdiction 
 thereof are expressly declared to 
 he 'citizens of the United States 
 and of the state wherein they re- 
 
 side.' But, in our opinion, it did 
 not need this amendment to give 
 them that position. Before its 
 adoption, the constitution of the 
 United States did not in terms 
 prescribe who should be citizens 
 of the United States or of the sev- 
 eral states, yet there were neces- 
 sarily such citizens without such 
 provision. There cannot be a na- 
 tion without a people. The very 
 idea of a political community, 
 such as a nation is, implies an 
 association ■ of persons for the 
 promotion of their general wel- 
 fare. Bach one of the persons as- 
 sociated becomes a member of the 
 nation formed by the association. 
 He owes it allegiance and is en- 
 titled to its protection. Allegi- 
 ance and protection are, in this 
 connection, reciprocal obligations. 
 The one is compensation for the 
 other; allegiance for protection 
 and protection for allegiance. For 
 convenience, it has been found 
 necessary to give a name to this 
 membership. The object is to 
 designate by a title the person 
 and the relation he bears to the 
 nation. For this purpose the 
 words 'subject,' 'inhabitant' and 
 'citizen' have been used, and the 
 choice between them is sometimes 
 made to depend upon the form of 
 the government. 'Citizens' is now 
 more commonly employed, how- 
 ever, and as it has been consid- 
 ered better suited to the descrip- 
 tion of one living under a repub- 
 lican government, it was adopted, 
 by nearly all of the states upon 
 
192 
 
 FEDERAL PKOCEDURE AT LAW. 
 
 213 
 
 § 213. Same — The African race — ^Dred Scott case. — Chief 
 Justice Taney held that: The words "people of the United 
 States" and "citizens" are sj'nonymous terms, meaning the 
 same thing, both describing the political body who, according 
 to our republican institutions, form the sovereignty, constitute 
 what we familiarly call the sovereign people, hold the power, 
 
 their separation from Great Brit- 
 ain, and was afterwards adopted 
 in the Articles of Confederation 
 and in th.e constitution of the 
 United States. "When used in this 
 sense, it is understood as convey- 
 ing the idea of membership of a 
 nation, and nothing more. 
 
 "To determine, then, who were 
 citizens of the United States be- 
 fore the adoption of the amend- 
 ment, it is necessary to ascertain 
 what persons originally associated 
 themselves together to form the 
 nation, and what were afterwards 
 admitted to membership. 
 
 "Looking at the constitution it- 
 self, we find that it was ordained 
 and established by 'the people of 
 the United States,' and then going 
 further back, we find that these 
 were the people of the several 
 states that had before dissolved 
 the political bands which con- 
 nected them with Great Britain, 
 and assumed a separate and equal 
 station among the powers of the 
 earth, and that had by Articles 
 of Confederation and Perpetual 
 Union, in which they took the 
 name of 'the United States of 
 America,' entered into a firm 
 league of friendship with each 
 other for their common defense, 
 the security of their liberties, and 
 their mutual and general welfare, 
 binding themselves to assist each 
 other against all force offered to 
 or attack made upon them, or any 
 of them, on account of religion, 
 
 sovereignty, trade, or any other 
 pretense whatever. 
 
 "Whoever, then, was one of the 
 people of either of these states 
 when the constitution of the 
 United States was adopted, became 
 ipso facto a citizen — a member of 
 the nation created by its adop- 
 tion. He was one of the persons 
 associating together to form the 
 nation, and was, consequently, one 
 of its original citizens. As to 
 this there has never been a doubt. 
 Disputes have arisen as to whether 
 or not certain persons or certain 
 classes of persons were part of 
 the people at the time, but never 
 as to their citizenship if they 
 were. 
 
 "Additions might always be 
 made to the citizenship of the 
 United States in two ways: first 
 by birth, and second, by naturali- 
 zation. This is apparent from the 
 constitution itself, for it provides 
 (art. 2, sec. 1), that 'no person ex- 
 cept a natural born citizen, or a 
 citizen of the United States at 
 the time of the adoption of the 
 constitution, shall be eligible to 
 the office of president,' and (art. 
 1, sec. 8), that congress shall 
 have power 'to establish a uni- 
 form rule of naturalization.' Thus 
 new citizens may be born or they 
 may be created by naturalization. 
 
 "The constitution does not, in 
 words, say who shall be natural 
 born citizens. Resort must be had 
 elsewhere to ascertain that. At 
 
§ 213 LIMITATIONS IMPOSED BT FEDERAL CONSTITUTION. 
 
 193 
 
 and conduct the government through their representatives, 
 and that every citizen is one of the people and a constituent 
 member of this sovereignty; and that, neither the negroes of 
 the African race, who, at the time of the Declaration of Inde- 
 Ijendence, had been imported into this country and sold and 
 held as slaves, nor their descendants, whether they had become 
 
 the common law, with the nomen- 
 clature of which the framers of 
 the constitution were familiar, it 
 was never doubted that all chil- 
 dren born in a country of parents 
 who were its citizens became 
 themselves, upon their birth, citi- 
 zens also. These were natives, or 
 natural-born citizens, as distin- 
 guished from aliens or foreigners. 
 Some authorities go further and 
 include as citizens children born 
 within the jurisdiction, without 
 reference to the citizenship of 
 their parents. As to this class 
 there have been doubts, but never 
 as to the first. For the purposes 
 of this case, it is not necessary to 
 solve these doubts. It is sufficient 
 for everything we have now to 
 consider, that all children born of 
 citizen parents, within the juris- 
 diction, are themselves citizens. 
 The words 'all children' are cer- 
 tainly as comprehensive, when 
 used in this connection as 'all 
 persons,' and if females are in- 
 cluded in the last they must be 
 included in the first. That they 
 are included in the last is not de- 
 nied. In fact, the whole argu- 
 ment of the plaintiff proceeds up- 
 on that idea." 
 
 After showing from the legis- 
 lative and judicial history of the 
 country, that women have, al- 
 ways been considered as citizens 
 the same as men, and holding that 
 they are in fact such, the opinion 
 proceeds: 
 13 
 
 "The constitution does not de- 
 fine the privileges and immunities- 
 of citizens. For that definition 
 we must look elsewhere. In this- 
 case we need not determine what 
 they are, but only whether suf- 
 frage is necessarily one of them. 
 It certainly is nowhere made so 
 in express terms. The United 
 States has no voters in the states 
 of its own creation. * * * The 
 amendment did not add to the 
 privileges and immunities of a cit- 
 izen. It simply furnished an ad- 
 ditional guaranty for the protec- 
 tion of such as he already had. 
 No new voters were necessarily 
 made by it. Indirectly it may 
 have had that effect, because it 
 may have increased the number 
 of citizens entitled to suffrage un- 
 der the constitution and laws of 
 the states, but it operates for this 
 purpose, if at all, through the 
 states and the state laws, and not 
 directly upon the citizen." 
 
 In United States v. Cruikshank, 
 supra, it is said, in the opinion: 
 "Citizens are the members of the 
 political community to which they 
 belong. They are the people who 
 compose the community, and who, 
 in their associated capacity, have 
 established or submitted them- 
 selves to the dominion of a gov- 
 ernment for the promotion of 
 their general welfare and the pro- 
 tection of their individual as well 
 as their collective rights. In the 
 formation of a government, the 
 
194 FEDERAL PEOCEDUEE AT LAW. § 214 
 
 free or not, were then acknowledged as a part of the people, 
 nor intended to be included in the general words used in that 
 memorable instrument, nor were they included nor intended to 
 be included under the word ''citizens" in the constitution, nor 
 were they constituent members of the sovereigntj',. nor could 
 they become members of the political community formed and 
 brought into existence by the constitution of the United States, 
 nor as such could they become entitled to the rights, privileges, 
 and immunities guarantied by that instrument to the citizen, 
 one of which was and is the privilege of suing in the courts 
 of the United States in the cases specified in the constitution."* 
 In this state of the law, the fourteenth amendment to the con- 
 stitution was adopted, the first clause of the first section of 
 which declares that, "all persons bom or naturalized in the 
 United States, and subject to the jurisdictiton thereof, are citi- 
 zens of the United States and of the states wherein they reside, ' ' 
 the main purpose of which was to confer citizenship upon the 
 lately enfranchised slave population, and to put it beyond 
 doubt that all blacks, as well as whites, born or naturalized 
 within the jurisdiction of the United States, are citizens of the 
 United States and of the states wherein they reside."' 
 
 § 214. Two sources of citizenship. — There are two sources 
 of citizenship, and two only: (1) Birth in the United States, 
 subject to the jurisdiction thereof; and (2) naturalization un- 
 der and pursuant to the constitution and laws of the United 
 States. Citizenship by naturalization can only be acquired by 
 naturalization under the authority and in the forms of law; 
 but citizenship by birth is by the mere fact of. birth under the 
 circumstances defined in the fourteenth amendment to the 
 constitution. Every person bom in the United States, and 
 
 people may confer upon it such »* Dred Scott v. Sandford, 19 
 
 powers as they choose. The gov- How. 393 (15:691). 
 
 ernment, when so formed, niay, »5 United States v. Wong Kim 
 
 and when called upon, should ex- Ark, 169 U. S. 649, 732 (42:890); 
 
 ercise all the powers it has for The Slaughter-House Cases, 16 
 
 the protection of the rights of its Wall. 36, 73 (21:394); Strauder v. 
 
 citizens and the people within its West Virginia, 100 U. S. 303 (25: 
 
 jurisdiction; but it can exercise 664); Ex parte Virginia, 100 U. S, 
 
 no other. The duty of a govern- 339, 345 (25:676); Neal v. Dela- 
 
 ment to afford protection is lim- ware, 103 U. S. 370, 386 (26:567); 
 
 ited always hy the power it pos- Elk v. Wilkins, 112 U. S. 94, 101 
 
 sesses for that purpose." (28:643). 
 
§ 215 LIMITxVTIONS IMPOSED BY FEDERAL CONSTITUTION. 195 
 
 subject to the jurisdiction thereof, becomes at once a citizen 
 ■of the United States and of the state wherein he is bom, and 
 needs no naturalization. A person born out of the jurisdiction 
 ■of the United States can only become a citizen by being nat- 
 uralized, either by treaty, as in the case of the annexation of 
 foreign territory; or by authority of congress, exercised either 
 by declaring certain classes of persons to be citizens, as in the 
 acts conferring citizenship upon foreign born children of citi- 
 zens, or by enabling foreigners individually to become citizens 
 by proceedings in the judicial tribunals, as in the ordinary 
 provisions of the naturalization acts.®" 
 
 § 215. Natural-born citizens — Not defined by the constitu- 
 tion — Resort had to the common law. — The constitution of the 
 United States, as originally adopted, uses the words "citizen 
 ■of the United States,"^' and "natural-born citizen'"' of the 
 Xinited States, and "citizen of the United States at the time 
 ■of the adoption of this constitution, ' ' °° but that instrument no- 
 where defines these words, either by way of inclusion or ex- 
 clusion, except in so far as this is done by the affirmative dec- 
 laration contained in the fourteenth amendment, that "all 
 persons bom or naturalized in the United States, and subject 
 to the jurisdiction thereof, are citizens of the United States 
 and of the states wherein they reside," and resort must be had 
 to the common law to ascertain their meaning.'^ The constitu- 
 tion was written in the language of the common law, whose 
 principles and history were familiarly known to the framers of 
 that instrument and the people of the states who adopted it; 
 and in respect to the words "citizen," and "natural-born citi- 
 zen, ' ' and ' ' citizen of the United States at the time of the adop- 
 tion of the constitution," as in other respects, that instrument 
 must be interpreted in the light of the history and principles 
 ■of the common law.^ Although there is no common law of the 
 
 96 United States v. Wong Kim 99 u. S. Const. Art. 11, sec. 1, 
 
 Ark, 169 V. S. 649, 732 (42:890); cl. 4. 
 
 Minor v. Happersett, 21 Wall. 163 i Minor v. Happersett, 21 Wall. 
 
 (22:627); Elk v. Wilkins, 112 U. 162 (22:627); United States v. 
 
 S. 94, 123 (28:643). Wong Kim Ark, 169 U. S. 647 
 
 9'U. S. Const. Art. I, sec. 2, cl. (42:890). 
 
 2, sec. 3, cl. 3. 2 Minor v. Happersett, 21 Wall. 
 
 98 U. S. Const. Art. II, sec. 1, cl. 162 (22:627); United States v. 
 
 4. WongKim Ark, 196 U. S. 647 (42: 
 
 890). 
 
196 FEDERAL PROCEDUEE AT LAW. § 216 
 
 United States, in the sense of a national customary law, distinct 
 from the common law of England as adopted by the several 
 states each for itself, applied as its local law, and subject to 
 such alteration as may be provided by its own constitution and 
 statute?, yet there is one clear exception to this principle, 
 namely; the interpretation of the constitution of the United 
 States is necessarily influenced by the fact that its provisions 
 are framed in the language of the English common law, and 
 are to be read in the light of its history and principles.^ 
 
 § 216. Same — Common law rule. — By the common law of 
 England, as it existed during the whole colonial period in thia 
 country, and the revolutionary period," and at the time of the 
 adoption of the federal constitution, aliens, while residing in the 
 dominions possessed by the crown of England, were within the 
 allegiance, protection and jurisdiction of the English sovereign, 
 and, therefore, every child bom in England of alien parentage- 
 was a natural-born subject of England; except (1) the children 
 of ambassadors or other diplomatic agents of foreign states, 
 and (2) the children of alien enemies in hostile occupation of 
 the place of birth at the time of birth. Subject to the two ex- 
 ceptions stated, any person who, whether of English or of 
 foreign parentage, was born within the British dominions, 
 was a natural-bom British subject. By natural-born British 
 subject was meant a British subject who had become such at 
 the moment of his birth.* 
 
 3 Smith V. Alabama, 124 U. S. persons born within the king's al- 
 465 (31:508); Moore v. United legiance and subject to his pro- 
 States, 91 U. S. 270, 274 (23:346); taction. Such allegiance and pro- 
 Ex parte Wilson, 114 XJ. S. 417 tection were mutual — as expressed 
 (29:89)'; Boyd v. United States, in the maxim protectio trahit 
 116 U. S. 616, 624 (29:746) ; United subjectionem suijectio protec- 
 States V, Wong Kim Ark, 196 U. tionem — and were not restricted 
 S. 647 (42:890); Minor v. Happer- to natural-born subjects and nat- 
 sett, 21 Wall. 162 (22:627). uralized subjects, or to those who 
 
 * United States v. Wong Kim had taken an oath of allegiance; 
 
 Ark, 169 U. S. 649, 732 (42:890) but were predicable of aliens in 
 
 and authorities cited. "The funda amity, so long as they were within 
 
 mental principle of the common- the kingdom. Children born in 
 
 law with regard to English nation- England of such aliens were, 
 
 ality, was birth within the allegi- therefore, natural-born subjects, 
 
 ance, also called 'ligealty,' 'obedi- But the children born within the 
 
 ence,' 'faith,' or 'power,' of the realm of foreign ambassadors, or 
 
 king. The principle embraced all thie children of alien enemies. 
 
§ 218 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 197 
 
 § 217. Same — Common law rule prevailed in American col- 
 onies and under original constitution — Slave population ex- 
 cepted. — The common law rule upon the subject of citizenship 
 by birth was in force in all the English colonies upon this con- 
 tinent down to the time of the Declaration of Independence, 
 and in the United States afterwards under tlie articles of con- 
 . federation, and continued to prevail under Ihe constitution 'as 
 originally adopted ; ° with this qualification, however, that, prior 
 to the adoption of the fourteenth amendment to the constitu- 
 tion, neither the negroes of the African race, who, at the time 
 of the Declaration of Independence, had been imported into 
 this country and sold and held as slaves, nor their descendants, 
 whether they had become free or not, were embraced within 
 the rule." 
 
 § 218. Same — Same — The Indian tribes. — Neither the Indian 
 tribes found on this continent by the English colonists, and 
 who were here at the time of the Declaration of Independence, 
 nor their descendants, whether within or without the limits of 
 the United States, were within the common-law rule of citizen- 
 ship by birth; they were no part of the people of the United 
 States, nor were they citizens of the United States, nor could 
 they become such citizens except by the consent and acceptance 
 of the United States through treaties or naturalization laws.'^ 
 
 bom during and within their bassadors (who were excepted 
 hostile occupation of part of the because their fathers carried their 
 liing's dominions, were not nat- own nationality with them), or a 
 ural-born subjects, because not child born to a foreigner during 
 born within the allegiance, the the hostile occupation of any part 
 obedience, or the power, or, as of the territories of England. No 
 would be said at this day, within effect appears to have been given 
 the jurisdiction of the king. * * * to descent as a source of nation- 
 Lord Chief Justice Cockburn, ality." Mr. Justice Gray in United 
 in the same year (1869), review- States v. Wang Kim Ark, supra, 
 ing the whole matter, said : 'By " United States v. Wong Kim 
 the common law of England, every Ark, 169 U. S. 649, 732 (42:890). 
 person born within the dominions « Dred Scott v. Sandfiord, 19 
 of the crown, no matter whether How. 393, 633 (15:69). 
 of English or foreign parents, and, ^ Elk v. Wilkins, 112 U. S. 94, 
 in the latter case, whether the par- 123 (28:643); Cherokee Nation 
 ents were settled, or merely tern- v. Georgia, 5 Pet. 1; Worcester v. 
 porarily sojourning, in the coun- Georgia, 6 Pet. 515; United States 
 try, was an English subject; save v. Rogers, 4 How. 567; United 
 only the children of foreign am- States v. Holliday, 3 Wall. 407 
 
198 FEDERAL PROCEDURE AT LAW § 218 
 
 "Under the constitution of the United States as originally 
 established, Indians not taxed were excluded from the persons 
 pccording to whose numbers representatives and direct taxes 
 were apportioned among the several states; and congress had 
 and exereisd the power to regulate commerce with the Indian 
 tribes, and the members thereof, whether within or without the 
 boundaries of one of the states of the union. The Indian 
 tribes, being within the territorial limits of the United States, 
 were not, strictly spealdng, foreign states; but they were alien 
 nations, distinct political communities, with whom the United 
 States might and habitually did deal, as they thought fit, either 
 through treaties made by the President and senate, or throiigh 
 acts of congress in the ordinary forms of legislation. The 
 members of those tribes owed immediate allegiance to their 
 -several tribes and were no part of the people of the United 
 States. They were in a dependent condition, a state of pupil- 
 age, resembling that of a ward to his guardian. Indians and 
 their property exempt from taxation by treaty or statute of 
 the United States, could not be taxed by any state. General 
 acts of congress did not apply to Indians, unless so expressed 
 as to clearly manifest an intention to include them. The alien 
 and dependent condition of the members of the Indian tribes 
 could not be put off at their own will, without the action or 
 assent of the United States. They were never deemed citizens 
 of the United States, except under explicit provisions of treaty 
 or statute to that effect, either declaring a certain tribe or such 
 
 (18:182); The Kansas Indians, 159, 211, 236, 335, 483, 488; Op. 
 
 5 Wall. 737 (18:667); The New Atty. Gen. Taney, 2 Ops. Atty. Gen. 
 
 York Indians, 5 Wall. 761 462; 10 U. S. Stat, at L. 1159; 12 U. 
 
 (18:708) ; The Cherokee Tobacco, S. Stat, at L. 1192; 14 U. S. Stat, at 
 
 V. United States, 11 Wall. 616 (20: L. 763; 12 U. S. Stat, at L. 1237; 
 
 227); United States v. Whiskey, 93 13 U. S. Stat, at L. 624; Acts of 
 
 U. S. 188 (23:846); Pennock v. Congress of March 3, 1839, ch. 83, 
 
 Comrs., 103 U. S. 44 (26:367); sec. 7, and of March 3, 1843, ch. 
 
 Crow Dog's Case, 109 U. S. 556 101, sec. 7, and of August 6, 184C, 
 
 (27:1030); Goodell v. Jackson, 20 ch. 88, and of March 3, 1865, ch. 
 
 Johns. 693; Hastings v. Farmer, 4 127, sec. 4; 5 U. S. Stat, at L. 351, 
 
 N. Y. 293; Karrahoo v. Adams, 1 647; 9 U. S. Stat, at L. 55; 13 U. 
 
 Dill. 344, 346; Gray v. Goffman, 3 S. Stat, at L. 562; 9 U. S. Stat, at 
 
 Dill. 393; Hicks v. Butrick, 3 Dill. L. 955; 11 U. S. Stat, at L. 667; 
 
 413; U. S. Const. Art. I, sees. 2, 8, 7 Ops. Atty. Gen. 746. 
 Art. II, sec. 2; 7 U. S. Stat, at L. 
 
§. 220 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 199 
 
 members of it as chose to remain behind on the removal of the 
 tribe westward, to be citizens, or authorizing individuals of 
 particular tribes to become citizens on application to a court 
 of the United States, for naturalization, and satisfactory proof 
 of fitness for civilized life. " ' 
 
 § 219. Same — ^Indians not citizens by birth since fourteenth 
 amendment. — ^An Indian, born a member of one of the Indian 
 tribes within the territorial limits of the United States, is not 
 merely by reason of his birth within the United States and of 
 his afterwards separating himself from his tribe and taking 
 up his residence among white citizens, a citizen of the United 
 States within the meaning of the first section of the fourteenth 
 amendment to the constitution of the United States; such a 
 person, although born in the United States in a geographical 
 sense, was bom a member of, and owes his immediate allegiance 
 to an alien, though a dependent political community, and was 
 not, in a constitutional sense, "born in the United States and 
 subject to the jurisdiction thereof." The first section of the 
 fourteenth amendment did not have the effect to extend 
 the common law rule of citizenship by birth to the members of 
 the Indian tribes, although born within the territorial limits 
 of the United States; and such persons can only become citizens 
 in the second way mentioned in the amendment — that is, by 
 being "naturalized in the United States," by or under some 
 treaty or statute." 
 
 § 220. The fourteenth amendment aflarms and extends the 
 common law rule of citizenshp by birth. — The first section of 
 the fourt.eenth amendment declares that: "All persons born or 
 naturalized in the United States, and subject to the jurisdic- 
 tion thereof, are citizens of the United States and of the states 
 wherein they reside." This provision is in affirmance and ex- 
 tension of the common law rule of citizenship by birth within 
 the territory, the primary object being to confer citizenship 
 upon the lately emancipated slaves and their descendants, and 
 to put it beyond doubt that all persons, white or black, and 
 whether formerly slaves or not, born or naturalized in the 
 United States, and owing no allegiance to any alien power, 
 should be citizens of the United States and of the states in 
 
 8 Mr. Justice Gray, in Elk v. » Elk v. Wilkins, 112 U. S. 94, 
 
 Wilkins, 112 U. S. 94, 123 (28: 123 (28:643). 
 643). 
 
200 FEDERAL PEOCEDUEE AT LAW. § 220 
 
 which they reside.^" "The fourteenth amendment affirms the 
 ancient and fundamental rule of citizenship by birth within 
 the territory, in the allegiance and under the protection of the 
 country, including all children bom here of resident aliens, 
 with the exceptions or qualifications (as old as the rule itself) 
 of children of foreign sovereigns or their ministers, or born 
 on foreign public ships, or of enemies within and during a 
 hostile occupation of part of our territory, and with the single 
 additional exception of children of members of the Indian 
 tribes owing direct allegiance to their several tribes. The 
 amendment, in clear words and in manifest intent, includes 
 the children born within the territory of the United States, 
 of aU persons, of whatsoever race or color, domiciled within 
 the United States. Every citizen or subject of another coun- 
 try, while domiciled here, is within the allegiance and protec- 
 tion, and consequently subject to the jurisdiction, of the United 
 States. His allegiance to the United States is direct and im- 
 mediate, and, although but local and temporary, continuing 
 only so long as he remains within our territory, is yet, * » * 
 'strong enough to make a natural subject, for if he hath is- 
 sue here, that issue is a natural-born subject;' and his child 
 * * * 'if born in the country is as much of a citizen as the 
 natural-born child of a citizen, and by operation of the same 
 principle.' It can hardly be denied that an alien is completely 
 subject to the political jurisdiction of the country in which he 
 resides — seeing that * * * 'independently of a residence 
 with intention to continue such residence ; independently of anj^ 
 domiciliation ; independently of the taking of any oath of allegi- 
 ance or of renouncing any former allegiance, it is well known 
 that by the public law, an alien, or a stranger born, for so long 
 a time as he continues within the dominions of a foreign gov- 
 ernment, owes obedience to the laws of that government, and 
 may be punished for treason, or other crimes, as a natural-born 
 subject might be, unless his case is varied by some treaty stipu- 
 lation.'"" 
 
 10 Slaughter-House Cases, 16 676); Neal v. Delaware, 103 XJ. S. 
 
 Wall. 36, 73 (21:394); Strauder 370 (26:567); United States v. 
 
 V. West Virginia, 100 U. S. 303, Wong Kim Ark, 169 U. S. 649, 
 
 306 (25:664); Elk v. Wilkins, 112 732 (42:890). 
 
 U. S. 94, 123 (28:643); Ex parte "Mr. Justice Gray, in United 
 
 Virginia, 100 U. S. 339, 345 (25: States v. Wong Kim Ark, 169 U. 
 
■| 222 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 201 
 
 § 221. Same — Chinese person born in the United States. — 
 A child born in the United States, of parents of Chinese de- 
 scent, who at the time of his birth are subjects of the emperor 
 of China, but have a permanent domicile and residence in the 
 United States, and are there carrying on business, and are not 
 ■employed in any diplomatic or official capacity under the em- 
 peror of China, becomes at the time of his birth a citizen of 
 the United States, by virtue of the first clause of the fourteenth 
 ^.mendment to the constitution, the opening words of the 
 ■amendment — "all persons" — beiag general, not to say univer- 
 sal, and restricted only by place and jurisdiction, and not by 
 race or color. ^^ 
 
 § 222. Same — Meaning of thie qualifying words: "And sub- 
 ject to the jurisdiction thereof." — What is the meaning and 
 import of the qualifying words: "and subject to the jurisdic- 
 tion thereof "—that is, subject to the jurisdiction of the United 
 ■States — contained in the citizenship clause of the fourteenth 
 amendment? What is their legal effect? What class of per- 
 sons born or to be hereafter born in the United States are to 
 be, by those words, excluded from citizenship? These words 
 were, ex industriae, placed in the amendment in order to pre- 
 serve in our law of nationality the two exceptions to the an- 
 cient and fundamental common law rule of citizenship by birth 
 within the territory, viz. : the exclusion (1) of children, born 
 in England, of ambassadors and other diplomatic agents of 
 foreign states who had been accredited as the representatives 
 of their governments in England, and (2) the children born of 
 alien enemies within and during a hostile occupation of a part 
 •of English territory, such children being excluded because they 
 were not born within the allegiance, protection, power or juris- 
 diction of the British crown; and (3) the qualifying words 
 were also intended to exclude from citizenship by birth the 
 children of the members of the Indian tribes, who are alien, de- 
 pendent political communities, standing in a peculiar relation 
 
 S. 649, 732.(42:890), citing Ex. Postnati, 63; 1 Hale, P. C. 62; 4 
 
 Doc. H. R. No. 10, 1st sess. 32nd Black. Com. 74, 92. 
 
 Congress, p. 4; 6 Webster's Works, 12 United States v. Wong Kim 
 
 526; Carlisle v. United States, 16 Ark, 169 U. S. 649, 732 (42:890); 
 
 Wall. 147, 155 (21:426); Calvin's Slaughter^House Cases, 16 Wall. 
 
 Case, 7 Coke Ga; Ellesmere on 36, 73 (21:394). 
 
202 FEDERAL PROCEDURE AT LAW. § 223- 
 
 to the national government, unknown to the common law, and! 
 to which Indian tribes their respective members owe immediate- 
 allegiance, and are not, within the meaning of the amendment,, 
 "subject to the jurisdiction" of the United States. ^^ 
 
 It is said that : ' ' The real object of the fourteenth amendment,, 
 in qualifying the words, 'all persons born in the United States, ' 
 by the addition, 'and subject to the jurisdiction thereof,' would, 
 appear to have been to exclude, by the fewest and fittest words, 
 (besides children of members of the Indian tribes, standing in 
 a peculiar relation to the national government, unknown to the- 
 common law), the two classes of cases — children born of alien 
 enemies in hostile occupation, and children of diplomatic repre- 
 sentatives of a foreign state — ^both of which, as has already been 
 shown by the law of England, and by our own law, from the- 
 time of the first settlement of the English colonies in America, 
 had been recognized exceptions to the fundamental rule of citi- 
 zenship by birth within the country." And it is further said 
 that the qualifying words are used in the amendment as "the 
 equivalent of the words 'within the limits and under the juris- 
 diction of the United States,' and the converse of the words,, 
 'out of the limits and jurisdiction of the United States,' as ha- 
 bitually used in the naturalization acts." ^* 
 
 § 223. The principle upon which foreign minsters are exempt 
 from local jurisdiction and their children excluded from citi- 
 zenship by birth. — The immunity of foreign ministers, ambas- 
 sadors and other diplomatic agents from the jurisdiction of the 
 governments to which they are accredited, and the exclusion of 
 their children from the common law rule of citizenship by birth,. 
 are founded, not upon any supposed lack or diminution of the 
 absolute and exclusive sovereignty and jurisdiction of the gov- 
 ernment in which they are resident over all persons and things 
 within their territorial limits, but upon the consent of such 
 government, based upon a principle of international law and 
 comity, which has been recognized and continuously acted on 
 in practice by all the civilized nations of the world for eentu- 
 
 13 United States v. Wong Kim i* United States v. Wong Kinl 
 
 Ark, 169 U. S. 649, 732 (42:890); Ark, 169 U. S. 649, 732 (42:890). 
 Elk V. Wilkins, 112 U. S. 94 (2'8: 
 643). 
 
§ 223 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 203 
 
 ries. This principle of international law and comity is : That the 
 world is composed of distinct sovereign nations, among whom 
 there is perfect equality and absolute independence, neither be- 
 ing in any respect amenable to another, and each vested with 
 absolute sovereignty and jurisdiction within its own territorial 
 limits, which cannot be restricted without its own consent, and 
 each bound by obligations of the highest character not to de- 
 grade its own national dignity by placing its' sovereign rights 
 within the jurisdiction of another; but the mutual benefit of the 
 nations is promoted by intercourse with each other, and by an 
 interchange of those good offices which humanity dictates and 
 its wants require, which, however, cannot be effectively main- 
 tained and secured without reciprocally appointing and main- 
 taining permanent resident ambassadors, public ministers, or 
 other diplomatic agents, with power and authority to represent 
 their respective principals in relation to such international in- 
 tercourse and interchange of good offices. Exemption of a pub- 
 lic minister from the local jurisdiction of the country to which 
 he is accredited and in which he is resident, is essential to the 
 dignity of his sovereign principal, and the performance of his 
 duties, and the accomplishment of the objects of his mission, 
 and all sovereign nations have consented to a relaxation, in 
 practice, in such cases, of that absolute and complete jurisdic- 
 tion within their respective territories which sovereignty con- 
 fers: and a sovereign nation, in committing its interest with a 
 foreign power to the care of a public minister, selected by it for 
 that purpose, cannot intend, and does not intend, to subject him 
 in any degree to that power; and, therefore, the consent of the 
 governing power of the country to which such minister is ac- 
 credited, implies a consent that he shall possess those privi- 
 leges and immunities which his sovereign principal intended he 
 should retain, and that he shall be exempt from the local juris- 
 diction of that country.^'^ 
 
 15 Exchange v. McFadden, 7 which it is founded, are lucidly 
 Cranch, 116, 147 (3:293); United set forth by Chief Justice Marsh- 
 States V. Wong Kim Ark, 169 U. all in the opinion of the court. 
 S. 647, 732 (42:890). In the case In that case, which involved the 
 here first cited, the great princi- question, whether an American cit- 
 ple of international law outlined izen can assert, in an American 
 in the text, and the reason upon court, a title to an armed na- 
 
'204 
 
 FEDEEAL PROCEDURE AT LAW. 
 
 224 
 
 § 224. Same— Same — The doctrine of Chief Justice Marshall 
 re-aiHrmed by recent decision. — The doctrine in regard to the 
 exemption and immunity of foreign ministers from the local 
 jurisdiction in which they are resident, as stated by Chief Jus- 
 tice Marshall in the case of The Exchange/^ was re-af&rmed in 
 
 tional vessel, belonging to a for- 
 eign friendly nation, the great 
 ■Chief Justice, expounding the 
 principle of exemption from na- 
 tional jurisdiction in certain 
 cases, said: 
 
 "In exploring an unbeaten path, 
 with few, if any, aids from preced- 
 ents, or written law, the court has 
 found it necessary to rely much 
 on general principles, and on a 
 train of reasoning founded on 
 cases in some degree analogous 
 to this. The jurisdiction of 
 courts is a branch of that which 
 is possessed by the nation as an 
 independent sovereign power. The 
 jurisdiction of the nation within 
 its own territory is necessarily 
 exclusive and absolute. It is sus- 
 ceptible of no limitation not im- 
 posed by itself. Any restriction 
 upon it, deriving validity from an 
 external source, would imply a 
 diminution of its sovereignty 
 to the extent of the restriction, 
 and an investment of that sover- 
 eignty to the same extent in that 
 power which could impose such 
 restriction. All exceptions, there- 
 fore, to the full and complete 
 power of a nation within its own 
 territories, must be traced up to 
 the consent of the nation itself. 
 They can flow from no other legit- 
 imate source. This consent may 
 be either express or implied. In 
 the latter case, it is less determi- 
 
 nate, exposed more to the uncer- 
 tainties of construction; but, if 
 understood, not less obligatory. 
 
 "The world being composed of 
 distinct sovereignities, possessing 
 equal rights and equal independ- 
 ence, whose mutual benefit is pro- 
 moted by intercourse with each 
 other, and by an interchange of 
 those good offices which humanity 
 dictates and its wants require, all 
 sovereigns have consented to a 
 relaxation in practice, in cases un- 
 der certain peculiar circumstan- 
 ces, of that absolute and complete 
 jurisdiction within their respect- 
 ive territories, which sovereignty 
 confers. This consent may. In 
 some instances, be tested by 
 common usage, and by common 
 opinion, growirtg out of that 
 usage. A nation would justly be 
 considered as violating its faith, 
 although that faith might not be 
 expressly plighted, which should 
 suddenly and without previous no- 
 tice, exercise its territorial pow- 
 ers in a manner not consonant to 
 the usages and received obliga- 
 tions of the civilized world. 
 
 "This full and absolute full ter- 
 ritorial jurisdiction being alike 
 the attribute of every sovereign, 
 and being incapable of conferring 
 extraterritorial power, would, not 
 seem to contemplate foreign sov- 
 ereigns nor their sovereign rights 
 as its objects. One sovereign be- 
 
 10 Exchange v. M'Faddon, 7 Cranch, 116 (3:287). 
 
§ 224 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 205- 
 
 a recent case in the supreme court of the United States, involv- 
 ing the citizenship of a person born in the United States, in the 
 course of the opinion in which it was substantially said that: 
 In the great case of The Exchange, the grounds upon which 
 foreign ministers are, and other aliens are not, exempt from the 
 
 ing in no respect amenable to 
 another; and being bound by obli- 
 gations of the highest character 
 not to degrade the dignity of his 
 nation, by placing himself or its 
 sovereign rights within the juris- 
 diction of another, can be sup- 
 posed to enter a foreign territory 
 only under an express license, or 
 in the confidence that the immuni- 
 ties belonging to his independent 
 sovereign station, though not ex- 
 pressly stipulated, are reserved by 
 implication, and will be extended 
 to him. 
 
 "This perfect equality and ab- 
 solute independence of sovereigns, 
 and this common interest impel- 
 ling them to mutual intercourse, 
 and an interchange of good offices 
 with, each other, have given rise 
 to a class of cases in which every 
 sovereign is understood to waive 
 the exercise of a part of that com- 
 plete exclusive territorial jurisdic- 
 tion, which has been stated to be 
 the attribute of every nation. 
 
 "1st. One of these is admitted, 
 to be the exemption of the person > 
 of the sovereign from arrest or 
 detention within a foreign terri- 
 tory. If he enters that territory 
 with the knowledge and license 
 of its sovereign, that license, al- 
 though containing no stipulation 
 exempting his person from arrest, 
 is universally understood to imply 
 such stipulation. 
 
 "Why has the whole civilized 
 world concurred in this construc- 
 
 tion? The answer cannot be mis- 
 taken. A foreign sovereign is not 
 uderstood as intending to subject 
 himself to a jurisdiction incom- 
 patible with his dignltVj and the 
 dignity of his nation, and it is to 
 avoid this subjection that the 
 license has been obtained. The 
 character to whom it is given, and 
 the object for which it is granted, 
 equally require that it should 
 be construed to impart fully se- 
 curity to the person who has ob- 
 tained it. This security, however, 
 need not be expressed; it is im- 
 plied from the circumstances of 
 the case. Should one sovereign 
 enter the territory of another, 
 without the consent of that other, 
 expressed or implied, it would 
 present a question which does not 
 appear to be perfectly settled, a 
 decision of which is not neces- 
 sary to any conclusion to which 
 the court may come in th.e case 
 under consideration. If he did 
 not thereby expose himself to the 
 territorial jurisdiction of the sov- 
 ereign, whose dominions he had 
 entered, it would seem to be be- 
 cause all sovereigns impliedly en- 
 gage not to avail themselves of a 
 power over their equals, which a 
 romantic confidence in their mag- 
 nanimity has placed in their 
 hands. 
 
 "2d. A second case, standing on 
 the same principles with the first, 
 is the immunity which all civil- 
 ized nations allow to foreign min- 
 
206 
 
 FEDERAL PEOCEDUEE AT LxVW. 
 
 § 224 
 
 jurisdiction of this country, were set forth by Chief Justice 
 ^larshall iu a clear and powerful train of reasoning. The opin- 
 ion did not touch upon the anomalous case of the Indian tribes, 
 the true relation of which to the United States was not directly 
 brought before the court until some years afterwards, nor upon 
 the case of a suspension of the sovereignty of the United States 
 
 isters. Whatever may be the 
 principle on which this immunity 
 is established, whether we con- 
 sider' him in the place of the 
 sovereign he represents, or by a 
 political fiction suppose him to be 
 extraterritorial, and, therefore, in 
 point of law, not within the juris- 
 diction of the sovereign at whose 
 court he resides; still the Immu- 
 nity itself is granted by the govern- 
 ing power of the nation to which 
 the minister is deputed. This fic- 
 tion of extraterritoriality could not 
 be erected and supported against 
 the will of the sovereign of the 
 territory. He is supposed to 
 assent to it. This consent is not 
 expressed. It is true that in some 
 countries, and in this among 
 others, a special law is enacted for 
 the case. But the law obviously 
 proceeds upon the idea of pre- 
 scribing the punishment of an 
 act previously unlawful, not of 
 granting to a foreign minister a 
 privilege which he would not oth- 
 erwise possess. 
 
 ''The assent of the sovereign to 
 the very important and extensive 
 exemptions from territorial juris- 
 diction which are admitted to at- 
 tach to foreign ministers, is im- 
 plied from the considerations that, 
 without such exemption, every 
 sovereign would hazard his o*n 
 dignity by employing a public 
 minister abroad. His minister 
 would owe temporary and local 
 
 allegiance to a fioreign prince, 
 and would be > less competent to 
 the objects of his mission. 
 
 A sovereign committing the in- 
 terests of his nation with a for- 
 eign power, to the care of a person 
 whom he has selected for that pur- 
 pose, cannot I'ntend to subject his 
 minister in any degree to that 
 power; and, therefore, a consent to 
 receive him, implies a consent 
 that he shall possess those privi- 
 leges which his principal intended 
 he should retain — privileges which 
 are essential to the dignity of his 
 sovereign, and to the duties hie is 
 bound to perform. 
 
 "In what cases a minister, by 
 infracting the laws of the country 
 in which he resides, may subject 
 himself to other punishment than 
 will be inflicted by his own sover- 
 eign. Is an enquiry foreign to the 
 present purpose. If his crimes 
 be such as to render him amena- 
 ble to the local jurisdiction, it 
 must be because they forfeit the 
 privileges annexed to his char- 
 acter; and the minister, by violat- 
 ing the conditions under which he 
 was received as the representative 
 of a foreign sovereign, has surren- 
 dered the immunities granted on 
 those conditions; or, according to 
 the true meaning of the original 
 assent, has ceased to be entitled 
 to them." Exchange v. M'Faddon, 
 supra. 
 
§ 225 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 207 
 
 over part of their territory by reason of a hostile occupation. 
 But in all other respects it covers the whole question of what 
 persons within the territory of the United States are subject 
 to the jurisdiction thereof. And it was held that the opinion 
 of Chief Justice Marshall established, as incontrovertible prin- 
 ciples, that the jurisdiction of every nation within its own ter- * 
 ritory is exclusive and absolute, and is susceptible of no limita- 
 tion not imposed by the nation itself; and that all exceptions 
 to its full and absolute territorial jurisdiction must be traced 
 up to its own consent, express or implied; and that upon its 
 consent to cede or to waive the exercise of a part of its ter- 
 ritorial jurisdiction, rest the exemptions from that jurisdiction 
 ■of foreign sovereigns or their armies entering its territory with 
 its permission, and of their foreign ministers and public ships 
 of war; and that the implied license under which private in- 
 dividuals of another nation enter the territory and mingle in- 
 discriminately with its inhabitants, for purposes of business or 
 pleasure, can never be construed to grant to them an exemption 
 from the jurisdiction of the country in which they are found.^^ 
 § 225. Same — Same^-Gonsuls and their children not within 
 the j>rinciple. — Consuls, as such, are not within the principle 
 and reason by which foreign ministers are exempt from the 
 jurisdiction of the nations to which they are accredited, and 
 their children excluded from the common law rule of citizen- 
 ship by birth; and it therefore follows, logically, that the chil- 
 dren born of foreign consuls in this country are citizens of the 
 United States and of the states wherein they are born. For it 
 is the well-settled law that consuls, as such, and unless ex- 
 pressly invested with a diplomatic character in addition to 
 their ordinary powers, are not considered as intrusted with 
 authority to represent their sovereign in his intercourse with 
 foreign states or to vindicate his prerogatives, or entitled b.y 
 the law of nations to the privileges and immunities of ambassa- 
 dors or public ministers, but are subject to the jurisdiction, 
 .civil and criminal, of the country in which they reside.^* 
 
 17 United States v. Wong Kim Anne, 3 Wheat. 435, 446 (4:428); 
 Ark, 169 U. S. 649, 732 (42:890). , 1 Kent, Cora. 44; Story, Confl. 
 
 18 Re Baiz, 135 TJ. S. 403, 424 Laws, § 249; Wheaton, Interna- 
 (34:222); Gittings v. Crawford, tional Law, (8th Ed.) §249; Red- 
 
 •Taney, 1, 10 Fed. Cas. — ; The mond v. Smith, 22 Tex. Civ. App. 
 
208 FEDERAL PEOCEDURE AT LAW. § 22& 
 
 A consul, though a public agent, is supposed to be clothed 
 with authority only for commercial purposes. He has an un- 
 doubted right to interpose claims for the restitution of prop- 
 erty belonging to the subjects of his own country; but he is 
 not considered as a minister, or diplomatic agent of his sover- 
 ■ eign, intrusted, by virtue of his office, with authority to repre- 
 sent him in his negotiations with foreign states, or to vindicate- 
 his prerogatives. There is no doubt that his sovereign may 
 specially intrust him Avith such authority; but in such case 
 his diplomatic character is superadded to his ordinary powers, 
 and ought to be recognized by the government within whose 
 dominions he assumes to exercise it.^° 
 
 When a consul is appointed charge d'affaires, he has a double 
 political capacity; but though invested with full diplomatic 
 privileges, he becomes so invested as charge d'affaires and not 
 as consul, and though authorized as consul to communicate 
 directly with the government in which he resides, he does not 
 thereby obtain the diplomatic privileges of a minister.^" 
 
 § 226. Principle upon which children born in hostile occupa- 
 tion are excluded from citizenship. — The principle upon which 
 children born of alien parents within and during a hostile occu- 
 pation of a part of the territory of the country in which they 
 are born are excluded from citizenship by the rules of the com- 
 mon law is, that, by the conquest and military occupation of 
 the territory, the invading enemy acquires that Arm possession 
 which enables him to exercise the fullest rights of sovereignty 
 over the place; the sovereignty of the rightful ruler, or govern- 
 ment, is suspended, and his laws or its laws cannot, during such 
 hostile occupation, be rightfully enforced there, or be obligatory 
 upon the inhabitants who remain and submit to the conquerors. 
 By a surrender of the territory by the rightful owner, the in- 
 habitants pass under a temporary allegiance to the invading 
 sovereign, and are bound by such laws, and such only, as he 
 chooses to recognize and enforce. From the nature of the 
 case, no other laws could be obligatory upon the inhabitants of 
 the territory subject to hostile occupation, for where there is 
 no protection or allegiance or sovereignty, there can be no- 
 
 322, and authorities cited in opin- is Mr. Justice Story in The Anne, 
 
 ion by Neill, Justice; Pooley v. 3 Wheat. 435 (4:428). 
 
 Luco, 76 Fed. 148; In Re lasigi, 79 20 Chief Justice Fuller in Re 
 
 Fed. 752. Baiz, 135 U. S. 403 (34:222). 
 
§ 228 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 209 
 
 claim to obedience, and children born of alien parents within 
 and during such hostile occupation, are not born wthin the 
 allegiance, protection, power and jurisdiction of the rightful 
 sovereign owner of the territory, and are, therefore, excluded 
 from the common law rule of citizenship within the territory .^^ 
 
 § 227. Same — Persons born within the seceded states. — It 
 would seem from the decisions of the supreme court of the 
 United States, upon the status of the seceded and confederate? 
 states during the war between the states, that the principle 
 which excludes from citizenship children bom of alien parent- 
 age within and during hostile occupation of a part of the terri- 
 tory of the country, could not be applied to children born 
 within any of those states during that period. The settled 
 doctrine of the court, as to the status of those states during 
 that period is, that the ordinances of secession adopted by their 
 conventions and ratified by a majority of their citizens, re- 
 ' speetively, and all the acts of their respective legislatures in- 
 tended to give effect to those ordinances, were, under the con- 
 stitution of the United States, utterly without operation in law, 
 and absolutely null and void, and those states did not cease 
 to be members of the American union, nor did they cease to be 
 states, nor did the citizens of those states cease to be citizens 
 of the United States. Those states did not become foreign, 
 nor did their citizens become aliens, and their occupation, 
 though hostile, was not an alien oceupation.^^ 
 
 § 228. Resume as to the qualifying words in the citizenship 
 clause of the fourteenth amendment. — It cannot be doubted 
 that the framers of the fourteenth amendment to the federal 
 constitution, when they inserted in the citizenship clause 
 thereof the qualifying words, "and subject to the jurisdiction 
 thereof," had in mind the common law rule of citizenship by 
 birth, and the established exceptions to that rule, and also the 
 peculiar relation of the Indian tribes to the general govern- 
 ment, and intended to preserve those exceptions in our law of 
 
 21 United States v. Wong Kim 96 U. S. 176 (24:716); Keith v. 
 Ark, 169 U. S. 649, 732 (42:890); Clark, 97 U. S. 454 (24:1071); 
 United States v. Rice, 4 Wheat. White v. Cannon, 6 Wall. 443 
 246 (4:562). (18:923); Spratt v. United States, 
 
 22 Texas V. White, 7 Wall. 700 20 Wall. 459 (22:371); Dewing v. 
 (19:227); White v. Hart, 13 Wall. Perdic^ries, 96 U. S. 193 (24:654). 
 646 (20:685); Williams v. Bruffy, 
 
 14 
 
210 FEDERAL PROCEDURE AT LAW. § 230 
 
 nationality; and that to be "born * * * in the United 
 States, and subject to the jurisdiction thereof," means to be 
 born within the territorial limits of the United States, and of 
 parents who are not ambassadors or foreign ministers, nor 
 aliens in hostile occupation of a part of our territory, nor mem- 
 bers of any of the Indian tribes. The qualifying words must 
 be read in the light of the common law, and also in the light of 
 the former adjudications of the supreme court upon the poli- 
 tical status of the Indian, and the legislation of congress con- 
 cerning them, and treaties made by the general government 
 with them.^' 
 
 § 229. Citizenship by naturalization. — The second source of 
 citizenship is by naturalization. By the constitution of the 
 United States, congress was granted power "to establish an 
 uniform rule of naturalization, ' ' ^* and, pursuant to this power, 
 congress has, by successive acts, beginning with the act en- 
 titled "An Act to Establish an Uniform Rule of Naturaliza- 
 tion, "passed at the second session of the first congress under 
 the constitution, made provision for the admission to citizen- 
 ship of four principal classes of persons: (1) Aliens who have 
 resided for a certain time within the limits and under the juris- 
 diction of the United States, and naturalized individually by 
 proceedings in a court of record; (2) children of persons so 
 naturalized, dwelling within the United States, and being un- 
 der the age of twenty-one years at the time of such naturaliza- 
 tion; (3) all children bom out of the limits and jurisdiction 
 of the United States, whose fathers were or may be at the time 
 of their birth citizens thereof, such fathers having resided in 
 the United States; ^' and (4) women married to citizens of the 
 United States, and who might themselves be lawfully natural- 
 ized.2° 
 
 § 230. Same — Citizenship of married woman follows that of 
 her husband. — ^The object of the second section of the act of 
 
 23 Ante, sections 196-207, and §§ 1993, 2165, 2172; United States 
 authorities cited. v. Wong Kim Arli, 169 U. S. 649, 
 
 24 U. S. Const. Art.I, sec. 8, cl. 4. 732 (42:890). 
 
 25 1 U. S. Stat, at L. p. 103, chap. 26 lo u. S. Stat, at L. 64, chap. 71, 
 
 3, p. 414, chap. 20, p. 566, chap. 5; sec. 2; TJ. S. Rev. Stat. § 1994; 
 
 2 U. S. Stat, at L. p. 153, chap. 28, Kelly v. Owen, 7 Wall. 496, 499 
 
 p. 292, chap. 47; 10 U. S. Stat, at (19:283). 
 L. p. 604, chap. 71; U. S. Rev. Stat. 
 
§ 232 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 211 
 
 congress of Feb. 10, 1855, was to allow the citizenship of mar- 
 ried women to follow that of their husbands. ^^ 
 
 § 321. "Collective naturalization" by the admission of new 
 states into the union. — The constitution provides that, "new 
 ■states may be admitted by congress into the union ; " ^^ and 
 congress having the power to deal with the people of the 
 territories in view of the future states to be formed from them, 
 there can be no doubt that in the admission of a state into the 
 union a collective naturjdization may be effected in accord- 
 ance with the intention of congress and the people applying 
 for admission. An admission on an equal footing with the 
 original states, in all respects whatever, involves equality of 
 constitutional right and power, which cannot thereafterwards 
 be controlled, and also involves the adoption as citizens of the 
 United States of those whom congress makes members of the 
 political community, and who are recognized as such in the 
 formation of the new state with the consent of congress. ^^ 
 
 § 232. — Same — Texas admitted into the union with her pop- 
 ulation as it stood.— ^By the annexation of Texas, under a joint 
 resolution of congress, and its admission into the union on an 
 equal footing with the original states, all the citizens of the 
 former republic became, without any express declaration, 
 citizens of the United States.'" Texas, prior to her annexation, 
 occupied towards the United States the position of an independ- 
 ■ent sovereignty. Her citizens were determined by her own 
 laws, and those laws prescribed the manner in which aliens 
 might become citizens. The United States admitted Texas as 
 
 27 10 U. S. Stat, at L. 604, chap. 96 Cal. 562, 31 Pac. 917, 19 L,. R. 
 
 71, sec. 2; V. S. Rev. Stat. § 1194; A. 42; 84 Am. Dec. 212, note. 
 
 Kelly V. Owen, 7 Wall. 496, 499 28 u. S. Const. Art. IV, sec. 3, 
 
 (19:283) ; "Ware v. "Wlsner, 50 Fed. cl 1. 
 
 312; United States v. Kellar, 13 29 Boyd v. State of Nebraska, 
 
 Fed. 83; Leonard v. Grant, 5 Fed. 143 U. S. 135. 186 (36:103). 
 
 14, 17; Broadls v. Bjoadls, 86 Fed. so 5 u. S. Stat, at L. 798; 9 U. S. 
 
 955; Headman v. Rose, 63 Georgia, Stat, at L. 108; McKinney t. Sav- 
 
 465; Kreitz v. Behrensmeyer, 125 iego, 18 How. 235 (15:365); Cryer 
 
 111. 197, 8 Am. St. Rep. 376, x7 N. v. Andrews, 11 Tex. 170; Barrett 
 
 E. 254; Dorsey V. Brigham, 177 111. v. Kelly, 31 Tex. 476; Carter v. 
 
 256, 69 Am. St. Rep. 232, 52 N. E. Territory, 1 N. M. 317; Boyd v. 
 
 304, 42 L. R. A. 810; Luhrs v. El- State of Nebraska, 143 U. S. 135 
 
 mer, 80 N. Y. 177; Pequiquot v. De- 186 (36:103). 
 troit, 16 Fed. 215; Blythe v. Ayres, 
 
212 FEDERAL PEOCEDUEE AT LAW. § 233 
 
 one of the states of the union with her population as it stood 
 under her laws. Those who were citizens of the state became 
 citizens of the United States, while aliens were relegated for 
 naturalization to the laws of the United States on that sub- 
 ject.'^ An alien minor who did not reside in Texas on the 
 day of the Declaration of Independence, but who emigrated to 
 Texas within less than six months before it was admitted 
 into the union, and remained there until its admission in the 
 union, and who was not naturalized and had not taken the oath 
 of allegiance to Texas, was not a citizen of Texas at the time of 
 its admission, and did not become a citizen of the United 
 States.^^ 
 
 § 233. "Collective naturalization" by treaty or statute. — It 
 is well settled that citizenship may spring from collective nat- 
 uralization by treaty or statute.''^ By the second article of 
 Joy's Treaty,^* British subjects who resided at Detroit and at 
 the time of the evacuation of the territorj^ of Michigan, and 
 who continued to reside there afterwards without at any time 
 prior to the expiration of one year from such evacuation de- 
 claring their intention of becoming British subjects became 
 ipso facto to all intents and purposes American citizens.^' And 
 by article three of the Treaty of Paris of 1803,^' it was pro- 
 vided that "the inhabitants of the ceded territory shall be 
 incorporated in the union of the United States, and admitted 
 as soon as possible, according to the principles of the federal 
 constitution, to the enjoyment of all the rights, advantages 
 and immunities of citizens of the United States; and in the 
 meantime they shall be maintained and protected in the free 
 enjoyment of their liberty, property, and the religion which 
 they profess." Under this provision it was held that a person 
 
 31 Contez V. United States, 179 Mich. 545, 563, 7 L. R. A. 99 ; Am- 
 U. S. 191 (45:148). erican Ins. Co. v. Canter, 1 Pet. 
 
 32 Contez V. United States, 179 511, 542 (7:242); Elk v. Wilkins, 
 U. S. 191 (45:148). 112 U. S. 94 (28:643); 7 U. S. 
 
 33 Contez V. United States, 171 Stat, at L. 335, 493; 5 U. S. Stat. 
 U. S. 191 (45:148); Boyd v. State at L. 349, 351; 24 U. S. Stat, at L. 
 of Nebraska, 143 U. S. 135 (36: 388; 8 U. S. Stat, at L. 200, 202 r 
 103) ; Crane v. Reeder, 25 Mich. 8 U. S. Stat, at L. 116, 117. 
 
 303; Desbois' Case, 2 Mart. 185; sis U. S. Stat, at L. 116, 117. 
 
 United States v. Loverty, 3 Mart. 35 Crane v. Reeder, 25 Mich. 303. 
 
 733; Atty. Gen. v. Detroit, 78 30 8 U. S. Stat, at L. 200, 202. 
 
§ 234 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 213 
 
 of French birth who moved into the territory after the treatj' 
 and before the state of Louisiana was formed out of it, became 
 a citizen of the state upon its admission into the union.'^ The 
 sixth article of the Treaty of 1819 with Spain ^' contained a 
 provision to the same effect as the Treaty of Paris, and in con- 
 struing it Chief Justice Marshall said: "This treaty is the law 
 of the land, and it admits the inhabitants of Florida to the en- 
 joyment of the privileges, rights and immunities of the citizens 
 of the United States." =» 
 
 § 234. Dual citizenship. — The constitution of the United 
 States, as originally adopted, recognized a dual citizenship, 
 viz. : (1) Citizens of the United States, and (2) citizens of the 
 states, each respectively;*" and this distinction is clearly recog- 
 nized and established in the fourteenth amendment to the con- 
 stitution, in the declaration that "all persons born or natural- 
 ized in the United States, and subject to the jurisdiction 
 thereof, are citizens of the United States and of the states 
 wherein they reside." There is a citizenship of the United 
 States and a citizenship of a state, which are distinct from each 
 other and which depend upon different characteristics or cir- 
 cumstances in the individual. A man may be a citizen of the 
 United States without being a citizen of a state; all that is 
 necessary to make him a citizen of the United States is that he 
 should be born or naturalized therein and within the jurisdic- 
 tion thereof, but to become a citizen of a state he must reside 
 in it, and in that event he is invested with the dual citizenship 
 established by the amendment, being a citizen of both the 
 United States and the state. This dual citizenship arises, log- 
 ically, out of our dual or complex government. We have in 
 our political system a government of the United States and a 
 government of each of the several states. Each one of these 
 governments is distinct from the other, and each has citizens 
 of its own who owe it allegiance, and whose rights, within its 
 jurisdiction, it must protect. The same person may be at the 
 same time a citizen of the United States and a citizen of a 
 
 37 Desbois' Case, 2 Mart. 185; so 'American Ins. Co. v. Canter, 
 United States v. Loverty, 3 Mart. 1 Pet. 511, 542 (7:242). 
 
 733. 40 Minor v. Happersett, 21 Wall. 
 
 38 8 U. S. Stat, at L. 256. 162, 178 (22:627). 
 
214 FEDERAL PROCEDURE AT LAW. § 237 
 
 state, but his rights of citizenship under one of these govern- 
 ments will be different from those he has under the other.*^ 
 
 § 235. The fourteenth amendment added nothing to the 
 rights of citizenship. — The fourteenth amendment did not add 
 to the rights, privileges and immunities of citizens of the 
 United States; it simply furnished an additional guaranty for 
 the protection of such rights, privileges and immunities as the 
 citizen of the union already had and possessed.*^ 
 
 § 236. Expatriation — Eight of declared by federal statute. — 
 An act of congress declares : 
 
 "Whereas the right of expatriation is a natural and in- 
 herent right of all people, indispensable to the enjoyment of 
 the rights of life, liberty and the pursuit of happiness; and 
 whereas in the recognition of this principle this government 
 has freely received emigrants from all nations, and invested 
 them with the rights of citizenship ; and whereas .it is claimed 
 that such American citizens, with their descendants, are sub- 
 jects of foreign states, owing allegiance to the governments 
 thereof; and whereas it is necessary to the maintenance of 
 public peace that this claim of foreign allegiance should be 
 promptly and finally disavowed; therefore, any declaration, 
 instruction, opinion, order, or decision of any officer of the 
 United States which denies, restricts, impairs or questions the 
 right of expatriation, is declared inconsistent with the funda- 
 mental principles of the republic." ^^ 
 
 § 237. Same — Not accomplished by mere declaration of in- 
 tention. — A mere declaration of an intention to expatriate 
 one's self is not, of itself, sufficient to effect a change of citizen- 
 ship; and it has, accordingly, been held that a citizen of the 
 United States who has renounced his allegiance to this govern- 
 ment, or declared an intention of expatriation, but who has not 
 emigrated to and become a subject or citizen of a foreign king- 
 dom or republic, and who remains domiciliated within the 
 United States, is still a citizen of the United States.** 
 
 ■"Slaughter-House Cases, 16 162, 178 (22:627); Slaughter- 
 
 Wiall. 74 (21:408); United States House Cases, 16 Wall. 36 (21: 
 
 V. Cruikshank, 92 U. S. 542, 5G9 394); Maxwell v. Dow, 176 U. S. 
 
 (23:588); Minor v. Happersett, 21 581, 617 (44:597). 
 
 Wall. 162, 178 (22:627). « TJ. S. Rev. Stat. sec. 1999. 
 
 *2 Minor v. Happersett, 21 Wall. •" Talbot v. Jansen, 3 Dall. 152. 
 
§ 238 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 215 
 
 {d) The Privileges and Immunities of the Citizens of the 
 Several States. 
 
 § 238. Complex nature of those rights denominated "privi- 
 leges and immunities of citizens." — ^An analysis of the decis- 
 ions of the supreme court of the United States bearing on the 
 subject, will show that the ascertainment, application and en- 
 forcement of those rights which are denominated in the con- 
 stitution as "the privileges and immunities of citizens," and 
 the distinction between "the privileges and immunities of 
 citizens of the United States," and the "privileges and immu- 
 nities of citizens in the several states" are bottomed and pro- 
 ceed upon the following principles, which are shown by a long 
 and unbroken line , of decisions, to be political axioms in our 
 system of government, namely: 
 
 1. "We have in our political system two governments, each 
 distinct from the other, namely: (1) the government of the 
 United States in which is vested the national sovereignty, and 
 (2) a government of each of the several states in which is 
 vested the municipal sovereignty; and these governments are, 
 each, respectively, supreme in the sphere of action assigned to 
 it by the constitution, with the right of final decision in the 
 government of the United States in all cases of conflict of 
 authority between the two governments; and the constitution, 
 laws and treaties of the United States are the supreme law of 
 the land. 2. The citizens of this country are invested with a 
 dual citizenship, namely: (1) They are citizens of the United 
 States and owe them allegiance and are entitled to their pro- 
 tection, and (2) they are citizens of the state in which they 
 reside and owe it allegiance and are entitled to its protection. 
 3. Every citizen is invested (1) with certain rights, denomin- 
 ated in the constitution as the privileges and immunities of 
 citizens of the United States, and (2) certain rights, denomi- 
 nated in the same instrument, as "all the privileges and im- 
 munities of citizens of the several states." 4. The privileges 
 and immunities of citizens of the United States, as distin- 
 guished from the privileges and immunities of citizens of the 
 state, rest alone upon their character and quality as citizens 
 of the national government, and arise out of the nature and 
 essential character of the national government, and are granted 
 or secured by the constitution of the United States. 5. The 
 
216 
 
 FEDERAL PEOCEDUEE AT LAW. 
 
 § 238 
 
 privileges and immunities of citizens of the state, as distin- 
 guished from the privileges -and immunities of citizens of the 
 United States, rest alone upon their character and quality as 
 citizens of the state, and arise out of the nature and essential 
 character of the state government; but the right of "the citi- 
 zens of each state" to enjoy "all privileges and immunities of 
 citizens of the several states" is protected by the constitution 
 of the United States.*' 
 
 153 (1:549); Tlie Santissima Trin- 
 idad, 7 "Wlieat. 283 (5:454). See, 
 also. Comities v. Parkinson, 56 
 Fed. 556, 560; Ware v. Wlsner, 50 
 Fed. 312. 
 
 *5 U. S. Const. Art. IV, sec. 2, cl. 
 1, and XIV, Art. of Amendment, 
 sec. 1; Slaughter-House Cases, 16 
 Wiall. 33, 77 (21:394); Maxwell v. 
 Dow, 176 U. S. 581, 617 (44:597); 
 United States v. Cruikshank, 92 
 V. S. 542, 569 (23:588); Minor v. 
 kappersett, 21 Wall. 162 (22: 
 627) ; Re Kemmler, 136 U. S. 436 
 (34:519); Walker v. Sauvinet, 92 
 U. S. 90 (23:678); Paul v. Vir- 
 ginia, 8 Wall. 180 (19:360); Ward 
 V. Maryland, 12 Wall. 430 (20:453) ; 
 Bradwell v. Illinois, 16 Wall. 130 
 (21:442); Cole v. Cunningham, 
 133 U. S. 107 (33:538); Blake v. 
 McClung, 172 U. S. 239 (43:432); 
 Conner v. Elliott, 15 How. 591 
 (15:497); Corfleld v. Coryell, 4 
 Wash. 371, Fed. Cas. 3,230. "The 
 fourteenth amendment did not 
 radically change the whole the- 
 ory of the relations of the state 
 and federal governments to each 
 other, and of both governments 
 to the people. The same person 
 may be at the same time a citizen 
 of the United States and a citizen 
 of a state. Protection of life, lib- 
 erty, and property rests primar- 
 ily with the states, and the amend- 
 ment furnishes an additional 
 guaranty against any encroachment 
 
 by the states upon those funda- 
 mental rights which belong to cit- 
 zenship, and which the state 
 governments were created to se- 
 cure. The privileges and immuni- 
 ties of citizens of the Unrted 
 States, as distinguished from the 
 privileges and immunities of citi- 
 zens of the states, are indeed pro- 
 tected by it; but those are privi- 
 leges and immunities arising out 
 of the nature and essential char- 
 acter of the national government, 
 and are granted or secured by the 
 constitution of the United States." 
 Chief Justice Fuller in Re Kemm- 
 ler, 136 U. S. 436, 448 (34:519). 
 
 "We have in our political sys- 
 tem a government of the United 
 States and a government of each 
 of the several states. Bach one 
 of these governments is distinct 
 from the others, and each has citi- 
 zens of its own who owe It al- 
 legiance, and whose rights, within 
 its jurisdiction, it must protect. 
 The same person may be at the 
 same time a citizen of the United 
 States and a citizen of a state, but 
 his rights of citizenship under one 
 of these governments will be dif- 
 ferent from those he has under 
 the other. 
 
 "Citizens are members of the 
 political community to which 
 they belong. They are the peo- 
 ple who compose the community, 
 and who, in their associated cap- 
 
§ 239 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 217 
 
 § 239. Privileges and Immunities of citizens not defined in 
 the constitution. — The constitution does not define the privi- 
 leges and immunities of citizens of the United States, nor those 
 
 acity, have established or submit- 
 ted themselves to the dominion of 
 a government for the promotion 
 of their general welfare and the 
 protection of their individual as 
 well as their collective rights. In 
 the formation of a government, 
 the people may confer upon it 
 such powers as they choose. The 
 government, when so formed, may, 
 and when called upon should, ex- 
 ercise all the powers it has for 
 the protection of the rights of its 
 citizens and the people within Its 
 jurisdiction; but it can exercise 
 no other. The duty of a govern- 
 ment to afford protection is lim- 
 ited always by the power it pos- 
 sesses for that purpose. 
 
 "Experience made the fact 
 known to the people of the United 
 States, that they required a na- 
 tional government for national 
 purposest The separate govern- 
 ments of the separate states, bound 
 together by the articles of con- 
 federation alone, were not suffi- 
 cient for the promotion of the 
 general welfare of the people in 
 respect to foreign nations, or for 
 their complete protection as citi- 
 zens of the confederated states. 
 For this reason, the people of the 
 United States, 'in order to form 
 a more perfect union, establish 
 justice, insure domestic tranquil- 
 ity, provide for the common de- 
 fense, promote the general wel- 
 fare and secure the blessings of 
 liberty' to themselves and their 
 posterity, ordained and estab- 
 lished the government of the 
 United States, and defined Its 
 powers by a constitution, which, 
 
 they adopted as its fundamental 
 law, and made its rule of action. 
 
 "The government thus estab- 
 lished and defined is to some ex- 
 tent a government of the states 
 in their political capacity. It is, 
 also, for certain purposes, a gov- 
 ernment of the people. Its powers 
 are limited in number, but not in 
 degree. Within the scope of its 
 powers, as enumerated and de- 
 fined, it is supreme and above 
 the states; but beyond, it has no 
 existence. It was erected for spec- 
 ial purposes, and endowed with 
 all the powers necessary for its 
 own preservation and the accom- 
 plishment of the ends its people 
 Tiad in view. It can neither grant 
 nor secure to its citizens any right 
 or privilege not expressly or by 
 implication placed under its ju- 
 risdiction. J 
 
 "The people of the United States 
 resident within any state are sub- 
 ject to two governments: one state 
 and the other national; but there 
 need be no conflict between the 
 two. The powers which one pos- 
 sesses, the other does not. They 
 are established for different pur- 
 poses, and have separate jurisdic- 
 tions. Togeth,er they make one 
 whole, and furnish the people of 
 the United States with a com- 
 plete government, ample for the 
 protection of all their rights at 
 home and abroad * * * . 
 
 "The government of the United 
 States is one of delegated powers 
 alone. Its authority is defined 
 and limited by the constitution. 
 All powers not granted to it by 
 that instrument are reserved to 
 
218 FEDERAL PROCEDURE AT LAW. § 241 
 
 of the citizens of the states; and for such definition resort 
 must be had to other sources.*" 
 
 § 240. Privileges and immunities of citizens defined by judi- 
 cial inclusion and exclusion only. — The supreme court has 
 never undertaken to give any exact or comprehensive defini- 
 tion of the words "privileges and immunities of citizens," as 
 used in the original constitution, and in the fourteenth amend- 
 ment, but has, by the "gradual process of judicial inclusion, 
 and exclusion," determined, in each case as it has been pre- 
 sented, whether the particular right therein asserted and de- 
 nied is protected by the constitution as a privilege or immunity 
 of state or national citizenship.*^ In one case arising under- 
 the second section of the fourth article of the constitution, 
 the court said: "We do not deem it needful to attempt to de- 
 fine the meaning of the word 'privileges,' in this clause of the 
 constitution. It is safer, and more in accordance with the duty 
 of a judicial tribunal, to leave its meaning to be determined, in 
 each case, upon a view of the particular rights asserted and 
 denied therein. And especially is this true when we are deal- 
 ing with so broad a provision, involving matters, not only of 
 great delicacy and importance, but which are of such a char- 
 acter that any merel}^ abstract definition could scarcely be cor- 
 rect; and a failure to make it so would certainly produce mis- 
 chief."*^ 
 
 § 241. History of the words "privileges and immunities of 
 citizens" — Colonial charters. — In all the colonial charters 
 granted by the British crown to the American colonists, except,, 
 perhaps, that of Pennsylvania, it was provided that all persons 
 being English subjects and inhabiting the colonies and their 
 children born therein, or on the seas going or returning, should 
 have, possess and enjoy "all liberties, franchises and immuni- 
 
 the states or the people. No rights ^o Minor v. Happersett, 21 Wall- 
 can be acquired under the con- 162, 178 (22:627); 
 stitution or laws of the United -t? Conner v. Elliott, 18 How. 591 
 States, except such as the govern- (15:497); Ward v. Maryland, 12' 
 ment of the United States has the Wall. 430 (20:453); Minor v. Hap- 
 authority to grant or secure. All persett, 21 Wall. 167, 178 (22:627); 
 that cannot be so granted or se- Blake v. McClung, 172 U. S. 239 
 cured are left under the protection (43:432). 
 
 of the States." Chief Justice Waite *8 Connor v. Elliott, 18 How. 591 
 
 in United States v. Cruikshank, (15:497). 
 92 U. S. 542, 569 (23:588). 
 
§ 243 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 219' 
 
 ties," or "liberties and immunities" or "rights, immunities and 
 privileges" or "privileges and immunities" of free and nat- 
 ural-born subjects of England, as if they vi^ere born within the' 
 realm of England/^ 
 
 § 242. Same— Declaration of rights of 1774.— In the declara- 
 tion of ri[;;hts of 1774, promulgated by the continental congress. 
 on behalf of the colonies they declare: "That our ancestors, 
 who first settled these colonies, were, at the time of their emi- 
 gration from the mother country, entitled to all the rights, 
 liberties, and immunities, of free and natural-born subjects, 
 within the realm of England;" and that by such emigration 
 they by no means forfeited, surrendered, or lost any of those 
 rights, biit that they were, and their descendants now are, en- 
 titled to the exercise and enjoyment of all such of them, as their 
 local and other circumstances enable them to exercise and en- 
 joy. And after declaring their right to representation in leg- 
 islation affecting them "in all cases of taxation and internal 
 polity," and their right to the common law of England and 
 such English statutes, existing at the time of colonization, as; 
 Avere suited to their local circumstances, they further declared 
 that they were "likewise entitled to all the immunities and 
 privileges granted and confirmed to them by royal charters, 
 or secured by their several codes of provincial laws. ' ' ^^ 
 
 § 243. Same — Provision of the articles of confederation. — 
 The first section of the fourth article of the articles of con- 
 federation declared that: "The better to secure and perpetuate- 
 mutual friendship and intercourse among the people of the 
 difl'erent states in this union, the free inhabitants of each of 
 these states, paupers, vagabonds, and fugitives from justice 
 excepted, shall be entitled to all privileges and immunities 
 of free citizens in the several states; and the people of each 
 state shall have free ingress and regress to and from any other 
 state, and shall enjoy therein all the privileges of trade and 
 commerce, subject to the same duties, imposts and restrictions,, 
 as the inhabitants thereof respectively; provided that such re- 
 
 49 Story, Comm. Const. §§ 42, 63, be denizens of England, and enti- 
 
 71, 87, 122, 129, 143. tied to all the privileges and im^ 
 
 The colonial charter of North munities of British born sub- 
 
 and South Carolina declared that jects." (Story, Comm. Const. §:• 
 
 "the inhabitants and their chil- 129). 
 
 dren, born in the province, should so pitk. Hist. 235-344. 
 
220 FEDERAL PROCEDURE AT LAW. § 245 
 
 strietions shall not extend so far as to prevent the removal of 
 property imported into any state, to any other state, of which 
 the owner is an inhabitant; provided also, that no imposition, 
 duties or restriction, shall be laid by any state on the prop- 
 erty of the United States, or either of them. ' ' °^ 
 
 § 244. Privileges and immunities of the citizens of the sev- 
 eral states under the constitution. — The constitution as origi- 
 nally adopted declares that : ' ' The citizens of each state shall be 
 entitled to all the privileges and immunities of citizens in the 
 several states. ' ' ^^ This provision secures valuable rights to 
 the citizens of the several states, and is in effect, a limitation 
 upon the states ; it inhibits each state from denying to the citi- 
 zens of the several other states the privileges and immunities 
 possessed and enjoyed by its own citizens.^^ 
 
 § 245. Same — Defined by Justice Washington. — This provis- 
 ion of the constitution was first brought under judicial con- 
 struction in a case in the circuit court in which Mr. Justice 
 "Washington, answering the question, what are the privileges 
 and immunities of the citizens of the several states, said : 
 
 ""We feel no hesitation in confining these expressions to 
 those privileges and immunities which are in their nature fun- 
 damental; which belong of right to the citizens of all free 
 governments, and which have at all times been enjoyed by the 
 citizens of the several states which compose this union from 
 the time of their becoming free, independent and sovereign. 
 What these fundamental principles are, it would perhaps be 
 more tedious than difficult to enumerate. They may, however, 
 be comprehended under the following general heads: Protec- 
 tion by the government; the enjoyment of life and liberty, with 
 the right to acquire and possess property of every kind, and 
 to pursue and obtain happiness and safety; subject, neverthe- 
 less, to such restraints as the government may justly pre- 
 scribe for the general good of the whole. The right of a citi- 
 zen of one state to pass through or to reside in any other state 
 for the purposes of trade, agriculture, professional pursuits, or 
 otherwise; to claim the benefit of the writ of habeas corpus; 
 
 "1 U. S. Stat, at L. 4. Cases, 16 Wall. 36, 130 (21:394); 
 
 52 U. S. Const. Art. IV, sec. 2, Blake v. McClung, 172, 230, 264 
 
 cl. 1. (43:432); Ward v. Maryland, 12 
 
 ■ ■->3Paul V. Virginia, 8 Wall. 168, Wall. 418, 433 (20:449). 
 180 (19:357); Slaughter-House 
 
§ 246 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 221 
 
 to institute and maintain actions of any kind in the courts of 
 the state; to take, hold and dispose of property, either real or 
 personal; and an exemption from higher taxes or impositions 
 than are paid by tlie other citizens of the state, may be men- 
 tioned as some of the particular privileges and immunities of 
 citizens, which are clearly embraced by the general description 
 of privileges deemed to be fundamental ; to which may be added 
 the elective franchise as regulated' and established by the laws 
 or constitution of the state in which it is to be exercised. 
 These and many others which might be mentioned, are, strictly 
 speaking, privileges and immunities, and the enjoyment of 
 them by the citizens of each state in every other state was 
 manifestly calculated (to use the expression of the preamble to 
 the corresponding provision in the old articles of confedera- 
 tion,) the better to secure and perpetuate mutual friendship 
 and intercourse among the people of the different states of the 
 union."" 
 
 § 246. Same — Defined by Justice Field.— Mr. Justice Field, 
 construing this constitutional provision, said: 
 
 "It was undoubtedly the ob,iect of the clause in question to 
 place the citizens of each state upon the same footing with citi- 
 zens of other states, so far as the advantages resulting from 
 citizenship in those states is concerned. It relieves them from 
 the disabilities of alienage in other states; it inhibits dis- 
 criminating legislation against them by other states; it gives 
 them the right of free ingress into other states and egress 
 from them; it insures to them in other states the same free- 
 dom possessed by the citizens of those states in the acquir 
 sition and enjoyment of property and in the pursuit of hap- 
 piness; and it secures to them in the other states the equal 
 protection of the laws. It has been justly said that no pro- 
 vision in the constitution has tended so strongly to constitute 
 the citizens of the United States one people as this. In- 
 deed, without some such provision of the kind removing from 
 the citizens of each state the disabilities of alienage in the 
 other states, and giving them equality of privilege with citi- 
 zens of those states, the republic would have constituted little 
 more than a league of states; it would not have constituted 
 the union which now exists. ' ' °' 
 
 54 Corfield v. Coryell, 4 Wash. 5= Paul v. Virginia, 8 Wall. 168, 
 
 (C. C.) 371, Fed. Cas. No. 3,230. 180 (19:357). 
 
222 PEDEEAL PEOCEDUKE AT LAW. § 248 
 
 § 247. Same— Defined by Justice Miller.— Mr. Justice Miller, 
 after quoting with approval the definition of Mr. Justice Wash- 
 ington, said: "The description, when taken to include others 
 not named, but which are of the same general character, em- 
 braces nearly every civil right for the establishment and pro^ 
 tection of which organized government is instituted. * * * 
 The constitutional provision there alluded to did not create 
 those rights, which it called privileges and immunities of citi- 
 zens of the states. It threw around them in that clause no 
 security for the citizen of the state in which they were claimed 
 or exercised. Nor did it profess to control the power of the 
 state governments over the rights of its own citizens. Its sole 
 purpose was to declare to the several states, that whatever 
 those rights, as you grant or establish them to your own citi- 
 zens, or as you limit or qualify, or impose restriction on their 
 exercise, the same, neither more nor less, shall be the measure 
 of the rights of citizens of other states within your jurisdic- 
 tion." =>» 
 
 § 248. Same — Commercial equality. — One of the objects of 
 the constitution was to secure commercial equality in each of 
 the states among the citizens of the several states, and, compre- 
 hensive as the power of the states is to levy and collect taxes, 
 yet that power cannot be exercised to any extent in a manner 
 forbidden by the constitution; and, inasmuch as the constitu- 
 tion provides that citizens of each state shall be entitled to all 
 privileges and immunities of citizens in the several states, it 
 follows that the citizens of each state may lawfully sell and 
 expose for sale in the several other states any goods which the 
 citizens thereof, respectively, could sell and expose for sale in 
 their respective states without being subjected to any higher 
 tax than that exacted by law of the citizens of the several other 
 states, respectively. And a state statute which prohibits per- 
 sons not permanent residents in the state from selling, offering 
 for sale, or exposing for sale, within a certain specified district 
 within the state, any goods whatever, other than agricultural 
 products and articles manufactured in the state, without first 
 obtaining from the state and paying therefor a license so to 
 do, is in conflict with the first clause of the second section of 
 the fourth article of the constitution, and, therefore, null and 
 void.^' 
 
 66 Slaughter-House Cases, 16 »' Ward v. Maryland, 12 Wall. 
 
 Wall. 36, 130 (21:395). 418, 433 (20:449). 
 
J-JXJ.Tiiiil.J.XV/-l-^0 ±J.»XA VU-i^l-' ■" i 
 
 „„ee.Uj constitution. 223 
 
 § 249. Same — Equality of right in assets of insolvent debtor. 
 
 — When the general property and assets of insolvent individ- 
 uals, or of a private corporation lawfully doing business in a 
 state, are in course of administration by the courts of such state, 
 creditors vrho are citizens of other states are entitled, under the 
 <;onstitution of the United States, to stand upon the same plane 
 ■with creditors of like class who are citizens of such state, and 
 ■cannot be denied equality of right simply because they do 
 not reside in that state, but are citizens residing in other states 
 ■of the union ; and a state statute denying such equality of right 
 to citizens of other states is in conflict with the first clause 
 of the second section of the fourth article of the constitution, 
 and is, therefore, null and void."' 
 
 § 250. Same — Protection of personal liberty. — Protection of 
 personal liberty by the state government, is one of the privi- 
 leges and immunities, of state citizenship, which is secured by 
 the constitution to the citizens of each state in the states in 
 which they reside and also in the several other states; and lib- 
 erty, in its broadest sense, as understood in this country, means 
 the right not only of freedom from servitude, imprisonmenc, or 
 restraint, but the right of one to use his faculties in all lawful 
 ways, to live and work where he will, to earn his livelihood in 
 any lawful calling, and to pursue any lawful trade or avoca- 
 tion, sub.iect only to such restraints as the government may 
 justly prescribe for the general good of the whole political 
 community. There can be no liberty, protected by govern- 
 ment, that is not regulated by such laws as will preserve the 
 right of each citizen to pursue his own advancement and hap- 
 piness in his own way, subject only to the restraints necessary 
 to secure the same rights to all others. The fundamental prin- 
 ciple upon which liberty is based, in free and enlightened gov- 
 ernment, is liberty under the law of the land. It has accord- 
 ingly been everywhere held that liberty, as that term is used 
 
 58 Blake v. McClung, 172 U. S. administered as a trust fund for 
 
 239, 269 (43:432); Sully v. Ameri- the benefit of its stockholders and 
 
 can National Bank, 178 TJ. S. 289, creditors— not simply of stock- 
 
 304 (44:1072). holders and creditors residing in 
 
 "It is an established rule in a particular state, but all stock- 
 equity that when a corporation holders and creditors of whatever 
 becomes insolvent it is so far civ- state they may be citizens." Blake 
 illy dead that its property may ba v. McClung, supra. 
 
224 
 
 FEDERAL PEOCEDURE AT LAW. 
 
 § 251 
 
 in the federal and state constitutions, means not only freedom 
 of the citizen from servitude and restraint, but is deemed to 
 embrace the right of every man to be free in the use of his 
 powers and faculties, and to adopt and pursue such avocation 
 or calling as he may choose, subject only to the restraints nec- 
 essary to secure the common vi^elJare.^" 
 
 § 251. Same — Same — Liberty of contract. — The liberty se- 
 cured to the citizen by the fourteenth amendment embraces 
 the right to make and enter into all lawful contracts which may 
 be proper or necessary or essential to enable him to pursue any 
 lawful trade or calling, and to acquire, hold and sell property; 
 but this right to make and enter into contracts is, like all other 
 rights and liberties, restrained and regulated by law, and must 
 be exercised in subordination to the valid laws and rules estab- 
 lished by society for the general welfare. While it may be 
 laid down as a general proposition, that the liberty of contract 
 is an inalienable right of the citizen, yet such right is not ab- 
 solute, but it is within the undoubted power of both the state 
 
 69 Corfield v. Coryell, 4 Wash. 
 371, Fed. Cas. 3,230; Paul v. Vir- 
 ginia, 8 Wall. 168, 180 (19:357); 
 Froer v. People, 141 111. 171; 
 Commonwealth v. Perry, 155 Mass. 
 117, 31 Am. 'St. Rep. 533; People 
 v. Gillson, 109 N. Y. 389, 4 Am. St. 
 Rep. 465; Goodcharles v. Wige- 
 man, 113 Pa. St. 431; State v. 
 Goodwill, 34 West Va. 179, 25 Am. 
 St. Hep. 863; Braceville Coal Co. 
 V. People, 147 111. 66, 37 Am. St. 
 Rep. 206; Matter of Jacobs, 98 N. 
 Y. 98, 50 Am. Rep. 636; Bertholf 
 V. O'Reilly, 74 N. Y. 509, 30 Am. 
 Rep. 232; People v. Max, 99 N. Y. 
 377, 52 Am. Rep. 34; Atkln v. 
 Kansas, 191 U. S. 207, 224 (48: 
 148); Allgeyer v. Louisiana, 165 
 U. S. 578 (41:832); Williams v. 
 Fears, 179 U. S. 270 (45:186); 
 Cargill Co. v. Minnesota ex rel 
 Railroad & W. Com., 180 U. S. 452, 
 470 (45:619); United States v. 
 Joint Traific Association, 171 U. S. 
 50.5, 578 (43:288); Hopkins v. 
 
 United States, 171 U. S. 578, 604 
 (43:290); Hooper v. State of Cali- 
 fornia, 155 U. S. 648, 664 (39: 
 297); Frisbee v. United States, 
 160, 168 (39:657). 
 
 "The liberty mentioned in that 
 amendment" (14th) "means, not 
 only the right of the citizen to be 
 free from the mere physical re- 
 straint of his person, as by incar- 
 ceration, but the term is deemed 
 to embrace the right of the citi- 
 zen to be free in the enjoyment 
 of all his faculties; to be free to 
 use them in all lawful ways; to 
 live and work where he will; to 
 earn his livelihood by any lawful 
 calling; to pursue any livelihood 
 or avocation, and for that purpose 
 to enter into all contracts which 
 may be proper, necessary, and es- 
 sential to his carrying out to a 
 successful conclusion the purposes 
 above mentioned." Mr. Justice 
 Peckham in Allgeyer v. Louisiana, 
 supra. 
 
§ 251 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 225 
 
 and federal governments, each acting within its sphere, to 
 regulate and restrain such right. Liberty of contract does not. 
 imply liberty in corporations or individuals to defy the na- 
 tional will when legally expressed; it does not imply liberty in. 
 corporations and individuals to defy the will of the state, when 
 legally expressed in the exercise of its reserved powers of 
 municipal soverignty.^" 
 
 60 Hing V. Crowley, 113 U. S. 
 703, 711 (28:1145); Hooper v. 
 State of California, 155 U. S. 648; 
 664 (39:297); Frisbee v. United 
 States, 157 U. S. 160, 168 (39:657); 
 United States v; Joint-Traffic As- 
 sociation, 171 XJ. S. 505, 578 
 (43:259); Hopkins v. United 
 States, 171 U. S. 578, 604 (43:290); 
 Atkins V. Kansas, 191 U. S. 207, 
 224 (48:148); Allgeyer v. Lousi- 
 ana, 165 U. S. 578 (41:832); Wil- 
 liams V. Fears, 179 U. S. 270 
 (45:186); Corglll Co. v. Minne- 
 sota ex rel. Railroad & W. Com., 
 180 U. S. 452, 470 (45:619); Hoo- 
 per V. State of California, 185 U. 
 S. 648, 664 (39:279); Northern Se- 
 curities Co. V. United States, 197, 
 406 (48:679); Addyston Pipe & 
 Steel Co. V. United States, 175 
 U. S. 211, 248 (44:136). 
 
 "However broad the right of 
 everyone to follow such calling 
 and employ his time as he may 
 • judge most conducive to his In- 
 terests, it must be subject to such 
 general rules as are adopted by 
 society for the common welfare. 
 All sorts of restrictions are im- 
 posed upon the actions of men, 
 notwithstanding the liberty which 
 is guarantied to each. It Is lib- 
 erty regulated by just and impar- 
 tial laws. Parties, for example, 
 are free to make any contracts 
 they choose for a lawful purpose, 
 but society says what contracts 
 shall be In writing and what may 
 15 
 
 be verbally made, and on what 
 days they may be executed, and 
 how long they may be enforced if 
 their terms are not complied with. 
 So, too, with the hours of labor. 
 On few subjects has there been 
 more regulation. How many hours 
 shall constitute a day's work in 
 the absence of a contract, at what 
 time shops in our cities shall close 
 at night, are constant subjects of 
 legislation. Laws setting aside 
 Sunday as a day of rest are up- 
 held, not from any right of the 
 government to legislate for the 
 promotion of religious observ- 
 ances, but from its right to pro- 
 tect all persons from the physical 
 and moral debasement which 
 comes from uninterrupted labor. 
 Such laws have always been 
 deemed beneficent and merciful 
 laws, especially to the poor and 
 dependent, to the laborers in our 
 factories and workshops and In 
 the heated rooms of our cities: 
 and their validity has been sus- 
 tained by the highest courts of 
 the states." Mr. Justice Field In 
 Hlng v. Crowley, supra. 
 
 "While It may be conceded that, 
 generally speaking, among the in- 
 alienable rights of the citizen is 
 that of the liberty of contract, yet 
 such liberty is not absolute and 
 universal. It is within the un- 
 doubted power of government to 
 restrain some individuals from all 
 contracts, as well as all Individ- 
 
226 FEDERAL PROCEDURE AT LAW. § 252 
 
 § 252. Same — Corporations not citizens within the meaning 
 of this constitutional provision. — It has long been settled that, 
 for the purposes of suit by or against it in the courts of the 
 United States, the members of a corporation are to be con- 
 clusively presumed to be citizens of the state creating such 
 corporation, and that therefore the corporation is to be deemed, 
 for such purposes, a citizen of the state under whose laws it 
 was created and organized. But it is equally well settled, that 
 a corporation is not a citizen within the meaning of the con- 
 stitutional provision that "the citizens of each state shall be 
 entitled to all privileges and immunities of citizens in the sev- 
 eral states. " *^ A state may lawfully prohibit a corporation 
 of another state from participating upon terms of equality, 
 with local creditors in the distribution of the assets of an in- 
 solvent individual or corporation in the hands and custody of 
 its courts ; °^ and it may require an insurance company incor- 
 porated in another state to take out a license before doing 
 business within its jurisdiction, and also to make a deposit for 
 the security of its policy-holders. °^ In the case last cited, 
 Field, Justice, delivering the opinion of the court, said: "But 
 in no case which has come under our observation, either in the 
 state or federal courts has a corporation been considered a 
 citizen within the meaning of that provision of the constitu- 
 tion which declares that the citizens of each state shall be en- 
 titled to all the privileges and immunities of citizens of the sev- 
 
 uals from some contracts. It may price of his labor, services or 
 
 deny to all the right to contract for property." Mr. Justice Brewer In 
 
 the purchase or sale of lottery tick- Prisbie v. United States, supra, 
 
 ets; to the minor the right to as- ei Blake v. McClung, 172 U. S. 
 
 sume any obligations, except for 239, 269 (43:432); Paul v. Vlr- 
 
 the necessaries of existence; to the ginia, 8 Wall. 168, 178 (19:357); 
 
 common carrier the power to make Ducat v. Chicago, 10 Wall. 410 
 
 any contract releasing himself (19:972); Liverpool Ins. Co. v. 
 
 from negligence, and. Indeed, may Massachusetts, 10 Wall. 566 
 
 restrain all engaged in any employ- (19:1029); Perubina Con. Silver 
 
 ment from any contract in the Mining Co. v. Pennsylvania, 123 
 
 course of that employment which U. S. 181, 190 (31:650); R. Co. v. 
 
 is against public policy. The pos- Pennsylvania, 136 U. S. 114 
 
 session of this power by the gov- (34:394). 
 
 ernment in no manner conflicts «^ Blake v. McClung, 172 U. S. 
 
 with the proposition that, gen- 239, 269 (43:432). 
 
 erally speaking, every citizen has os Paul v. Virginia, 8 Wall. 168, 
 
 a right freely to contract for thie 178 (19:357). 
 
^ 253 LIMITATIOKS IMPOSED BY FEDERAL CONSTITUTION. 227 
 
 eral states." And, after defining "privileges and immuni- 
 ties," he continued, saying: "But the privileges and immuni- 
 ties secured to citizens of each state in the several states, by 
 the provision in question, are those privileges and immunities 
 which are common to the citizens in the latter staites under 
 their eonstitvition and laws by virtue of their being citizens. 
 Special privileges enjoyed by citizens in their own states are 
 not secured in other states by this provision. It was not in- 
 tended by the provision to give to the laws of one state any 
 operation in other states. They can have' no such operation, 
 except by the permission, express or implied, of those states. 
 The special privileges which they confer must, therefore, be en- 
 joyed at home, unless the assent of other states to their enjoy- 
 ment therein be given. Now, a grant of corporate existence is 
 a grant of special privileges to the corporators enabling them 
 to act for certain designated purposes as a single individual, 
 and exempting them (unless otherwise specially provided) 
 from individual liability. The corporation being the mere 
 creation of local law, can have no legal existence beyond the 
 limits of the sovereignty where created." 
 
 And it is also held in a recent case, by the supreme court of ■ 
 the United States, that a corporation is not a citizen within 
 the provision of the fourteenth amendment, which declares 
 that, "No state shall make or enforce any law which shall 
 abridge the privileges or immunities of citizens of the United 
 States.""* 
 
 § 253. Same — Common property of the state — Fisheries. — 
 Each state owns the beds of all tide-waters within its jurisdic- 
 tion, unless they have been granted away, and in like manner 
 owns the tide-waters themselves, and the fish in them, so far as 
 they are capable of ownership as they run; and for this pur- 
 pose, and in this dominion over the tide-beds and tide-waters 
 and fisheries, the state represents its people, and the ownership 
 is that of the people in their united sovereignty. The right to 
 plant, cultivate and take oysters in the tide-waters and tide- 
 beds is in the exclusive control of the state, which has the right 
 in its discretion to appropriate its tide-waters and tide-beds 
 -to be used by its people as a common for planting, cultivating 
 and taking oysters, so far as it may be done without obstruct- 
 
 61 Western Turf Asso. v. Greenberg, 204 TJ. S. 359-364 (51:520). 
 
228 FEDERAL PKOCEDUEE AT LAW. § 254 
 
 ing navigation, and such appropriation is, in effect, nothing 
 more than a regulation of the use by the people of their com- 
 mon property; and the right which the people of the state ac- 
 (juire by such appropriation comes not from their citizenship 
 alone, but from their citizenship and property combined, and 
 is in fact a property right, and not a mere privilege or im- 
 munity of citizenship, and, for this reason, and upon this prin- 
 ciple, the citizens of one state are not vested with the right by 
 the constitution to plant, cultivate and take oysters in the 
 tide-waters and tide-beds of another state. °^ 
 
 § 254. Same — Marital rights. — ^According to the express, 
 words and clear meaning of the first clause of the second sec- 
 tion of the fourth article of the constitution, no privileges are 
 secured by it, except those which belong to citizenship, and 
 rights attached by law to marital contracts by reason of the 
 place where such contracts are made or executed, wholly ir- 
 respective of the citizenship of the parties to those contracts, 
 cannot be deemed privileges of a citizen within the meaning of 
 the constitution; and a widow, who was married to her de- 
 ceased husband in the state of Mississippi, and who resided 
 there with him during the continuance of their marital rela- 
 tion, is not invested by this clause of the constitution with 
 those marital rights, in a plantation acquired by her husband, 
 during the continuance of the marriage, in the state of Louis- 
 iana, given by the laws of that state to a married woman whose 
 marriage with her husband was contracted there, or who re- 
 sided there with her husband in the marital relation after it 
 was created. °° 
 
 8» McCready v. Virginia, 94 U. S. reason why it may not do the same 
 
 391 (24:248); State v. Towler, 84 thing in respect to such as are- 
 
 Me. 445, 24 Atl. 899. covered with water. And as all 
 
 "The planting of oysters in the concede that a state may grant tO' 
 soil covered by water owned in one of its citizens the exclusive 
 common by the people of the state use of a part of the common prop- 
 is not different in principle from erty, the conclusion would seem to 
 that of planting corn on dry land follow, that it might by appropri- 
 held in the same way. Both are ate legislation confine the use of 
 for the purposes of cultivation and the whole to its own people alone." 
 profit; and if the state, in the reg- Chief Justice Waite in McCready 
 ulation of its public domain, can v. Virginia, supra, 
 grant its own citizens the exclu- 66 Conner v. Elliott, 18 How. 591, 
 sive use of dry lands, we see no 594 (15:497). 
 
§ 258 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 229 
 
 § 255. Same — Statute of limitation not running in favor of 
 party out of the state. — ^A state statute of limitations contain- 
 ing a provision that when the defendant is out of the state, the 
 limitation shall not run against the plaintiff if he resides in 
 the state, but shall if he resides out of the state, does not deny- 
 to the non-resident plaintiff in such a case any privilege or im- 
 munity of a citizen secured by the constitutional provision de- 
 claring that "the citizens of each state shall be entitled to all 
 privileges and immunities of citizens in the several states. ' ' " 
 
 § 256. Same — Intention of the constitutional provision. — The 
 intention of the first clause of the second section of the fourth 
 article of the constitution was to confer on the citizens of the 
 several states a general citizenship, and to communicate all 
 the privileges and immunities which the citizens of the same 
 state would be entitled to under the like circumstances.^' 
 
 (e) The Privileges and Immunities of Citizens of the United 
 States Not to be Abridged. 
 
 § 257. Privileges and immunities of citizens of the United 
 States protected by the fourteenth amendment. — Limitation 
 upon the states. — In the first section of the fourteenth amend- 
 ment to the constitution of the United States, 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." This provision is, of course, a limitation upon the 
 states; it is directed against state action. It was not intended 
 to protect individual right against individual invasion. It re- 
 strains and annuls all state legislation and state action of every 
 kind which abridges the privileges or immunities of citizens of 
 the United States."^ Corporations are not citizens within the 
 meaning of this provision, and cannot claim its benefit.'" 
 
 § 258. Privileges and immunities of citizens of the United 
 States partially enumerated by the supreme court. — The su- 
 
 87 Chemung Canal Bank V. Low- 338 (25:667); Slaughter-House 
 
 ry, 93 U. S. 72, 78 (23:806). Cases, 16 Wall. 36 (21:394); 
 
 68 Cole V. Cunningham, 133 U. S. United States v. Cruikshank, 92 
 107, 138 (33:538). U. S. 542 (23:588). 
 
 69 Civil Rights CaSes, 109 TJ. S. ■"> Western Turf Asso. v. Green- 
 3, 62 (27:836); Ex parte Common- berg, 204 U. S. 359-364 (51:520). 
 wealth of Virginia, 100 U. S. 313, 
 
230 FEDERAL PROCEDURE AT LAW. § 258 
 
 preme court of the United States, without attempting to give a 
 comprehensive definition of the privileges and immunities of 
 citizens of the United States, and without assuming to state 
 them all, has made a partial enumeration of them, which is 
 sufficient to indicate the character of those rights which are 
 protected by the constitutional inhibition under consideration. 
 The court, in its decisions has mentioned the following : A citi- 
 zen of the United States, as such, has the right to come to the 
 seat of the government to assert claims or transact business, 
 to seek the protection of the government or share its offices; he 
 has the right of free access to its seaports, its various offices 
 throughout the country, and to the courts of justice in the sev- 
 eral states; to demand the care and protection of the general 
 government over his life, liberty and property when on the high 
 seas or within the jurisdiction of a foreign government; the 
 right, with others, to peaceably assemble and petition for a re- 
 dress of grievances; the right to the writ of habeas corpus; 
 to use the navigable waters of the United States, however 
 they may penetrate the territory of the several states ; also all 
 rights secured to our citizens by treaties with foreign nations ; 
 the right to become citizens of any state in the union by a bona 
 fide residence therein, with the same rights as other citizens of 
 that state ; and the rights secured to him by the thirteenth and 
 fifteenth amendments to the constitution.'^ 
 
 '1 Slaughter-House Cases, 16 constitution of the United States 
 
 Wall. 36 (21:394); Maxwell v. — such for example, as the right 
 
 Dow, 176 U. S. 581, 617 (44:597); to sue in a federal court sitting in 
 
 Crandall v. Nevada, , 6 Wall. 36 another state, the * * * equal 
 
 (18:745). ' privileges and immunities secured 
 
 "Living as we do under a com- to citizens of other states, and the 
 mon government, charged with provisions that vessels bound to 
 the great concerns of the whole or from one state to another shall 
 union, every citizen of the United not be obliged to enter and clear 
 States, from the remotest states or pay duties — all prove that it in- 
 or territories, is entitled to free tended to secure the freest inter- 
 access, not only to the principal course between the citizens of the 
 departments established at Wash- diffrent states. For all the great 
 ington, but also its judicial tribu- purposes for which the 'federal 
 nals and public offices in every government was formed, we are 
 state and territory of the Union, one people, with one common coun- 
 And the various provisions of the try. We are all citizens of the 
 
§ 261 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 231 
 
 § 259. What are not privileges and immunities of citizens of 
 the United States — Right to vote. — The right to vote is not a 
 privilege or an immiinity of national citizenship; the con- 
 stitution of the United States has not conferred the right of 
 suffrage upon any one ; the right of suffrage is not a necessary 
 attribute of national citizenship.^^ 
 
 § 260. Same — Right to practice law in state courts. — The 
 right to practice law in the state courts is not a privilege or 
 an immunity of a citizen of the United States; the right to 
 control and regulate the granting of license to practice law in 
 the courts of the state is one of those powers that was not trans- 
 ferred for its protection to the federal government, and its ex- 
 ercise is in no manner governed or controlled by reason of the 
 fact that the party seeking such license is a citizein of the 
 United States." 
 
 § 261. Same — ^Right to sell intoxicating liquors. — The privi- 
 leges and immunities of citizens of the United States are privi- 
 leges and immunities arising out of the nature and essential 
 character of the national government, and granted or secured 
 by the constitution of the United States, and the right to sell 
 intoxicating liquors is not one of the rights growing out of 
 such citizenship. ''* The fourteenth amendment does not take 
 
 United States; and, as members Crandall v. Nevada, 6 Wall. 36 
 
 of the same community, must have (18:745), and also In Slaughter- 
 
 the right to pass and repass House Cases, 16 Wall. 36 (21:394). 
 
 through every part of it without "2 Minor v. Happersett, 21 Wall, 
 
 interruption, as freely as in our 178 (22:631); United States v. 
 
 own states. And a tax imposed hy Cruikshank, 92 U. S. 542, 569 
 
 a state for entering its territories (23:588); United States v. Reese, 
 
 or harbors is inconsistent with the 92 U. S. 214, 256 (23:563); Pope 
 
 rights which belong to the citi- v. Williams, 193 U. S. 621, 634 (48: 
 
 7ens of other states as members 817). 
 
 of the union, and with the objects f 3 Browell v. Illinois, 16 Wall, 
 which that union was intended to 130 (21:442); Ebc parte Lockwood, 
 attain. Such a power in the states 154 U. S. 116, 118 (38:926); Phil- 
 would produce nothing but diS: brook v. Newman, 85 Fed. 142. 
 cord and mutual irritation, and " Qiozza v. Tiernan, 148 U. S. 
 they very clearly do not possess 657, 662 (37:599); Bartemeyer v. 
 it." Chief Justice Taney, dissent- Iowa, 18 Wall. 129 (21:929) ; Mug- 
 ing opinion in Passenger Cases, 7 ler v. Kansas, 123 U. S. 623, 678 
 How. 492 (12:790), cited with ap- (31:205). 
 proval by Mr. Justice Miller in 
 
232 FEDERAL, PKOCEDUEE AT LAW. § 264 
 
 from the states those powers of police which were reserved 
 at the time the original constitution was adopted. Undoubt- 
 edly it forbids anj' arbitrary deprivation of life, liberty, or 
 property, and secures equal protection to all under like cir- 
 cumstances in the enjoyment of their rights; but it was not 
 designed to interfere with the power of the state to protect the 
 lives, liberty and property of its citizens, and to promote their 
 health, morals, education and good order/^ 
 
 § 262. Same — State statute prohibiting the carrying of dan- 
 gerous weapons. — A state statute prohibiting persons from 
 carrying dangerous weapons on the person does not abridge 
 the privileges or immunities of citizens of the United States.^" 
 
 § 263. Same — State laws requiring separation of the races 
 on railway trains. — ^A state statute which requires all railway 
 companies carrying passengers in their coaches in that state to 
 . provide equal but separate accommodations for the white and 
 colored races, by providing two or more passenger coaches for 
 each train, or by dividing the passenger coaches by partition 
 so as to secure separate accommodations, and providing that 
 no person or persons shall be permitted to occupy seats in 
 coaches other than the ones assigned to them on account of the 
 race to which they belong, and giving to the officers in charge 
 of such passenger trains the power, and requiring them to as- 
 sign each passenger to the coach or compartment used for the 
 race to which he belongs, and enforcing the provisions of the 
 act by penal sanction, does not deprive persons of the African 
 race of the privileges and immunities of citizens of the United 
 States." 
 
 § 264. Same — State statute regulating the slaughter of ani- 
 mals. — A state statute, establishing regulations for the landing, 
 yarding, inspection and slaughter of all animals shipped into a 
 
 '5 Barbier v. Connolly, 113 U. S. solute equality of the two races be- 
 
 27, 31 (28:923); Re Kemmler, 136 fore the law, but in the nature of 
 
 XJ. S. 436 (34:519); Giozza v. things it could not have been in- 
 
 Tiernan, 148 U. S. 657, 662 tended to abolish the. distinction 
 
 (37:599). based upon color, or to enforce so- 
 
 ■?« Miller v. Texas, 153 U. S. 535, cial as distinguished from political 
 
 539 (38:812). equality, or a commingling of the 
 
 77 Plessy V. Ferguson, 163 U. S. two races upon terms unsatisfac- 
 
 537, 564 (41:256). tory to either." Brown, Justice, 
 
 "The object of the amendment in Plessy v. Ferguson, supra, 
 was undoubtedly to enforce the ab- 
 
§ 265 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 233 
 
 designated district, whose flesh is designed for food in such 
 district, and creating a private corporation, and granting it 
 the exclusive privilege of maintaining stock-landings, stock- 
 yards and slaughter-houses within such district for a period of 
 years, and requiring that all such animals shall be landed at 
 the stock-landings and slaughtered at the slaughter-houses nf 
 the corporation, and nowhere else, and fixing maximum charges 
 for all animals so landed or slaughtered, to be paid by the 
 owners to the incorporated company, does not abridge the priv- 
 ileges or immunities of citizens of the United States. The' 
 enactment by a state of a statute regulating the landing, in- 
 spection and slaughter of animals for food, and the inspection 
 of the meat after slaughter, is but the exercise hy the state of 
 the police power which was reserved to the states when the 
 constitution was originally adopted, and which has not been 
 surrendered by them, by the fourteenth amendment, or any 
 other amendment.^^ 
 
 § 265. Same — State judicial procedure. — It has been con- 
 tended, on writ of error in the supreme court of the United 
 States, and urged as ground of reversal, by persons convicted 
 of crime in state courts, that the limitations imposed by the 
 first ten amendments to the federal constitution on the federal 
 courts, in regard to .judicial procedure, were, by the operation 
 of the fourteenth amendment, extended to the states, and 
 restrict the states to the judicial procedure prescribed for the 
 federal courts in the first ten amendments, and that the guar- 
 anties therein contained in regard to judicial procedure have 
 become, by force of the fourteenth amendment, privileges and 
 immunities of citizens of the United States, which no state can 
 abridge or deny. In other words, it has been contended that 
 the forms and methods of judicial procedure prescribed by 
 the first ten amendments for the federal courts, were, by the 
 fourteenth amendment; converted into privileges and immuni- 
 ties of all the citizens of the United States, and that they are 
 entitled to that identical procedure in all criminal prosecu- 
 tions against them in the courts of the several states. '° But 
 
 78 Slaughter-House Cases, 16 U. S. 581, 617 (44:597); McEl- 
 
 Wall. 36, 130 (21:395). vaine v. Brush, 142 U. S. 155, 160 
 
 " Spies V. Illinois, 123 U. S. 131, (30:971). 
 136 (31:80); Maxwell v. Dow, 176 
 
234 FEDERAL PEOCEDUEE AT LAW. § 265 
 
 that contention has been explicitly overruled by the supreme- 
 court, and the following points determined : 
 
 (1) Exemption from trial, in a state court and upon state 
 authority, for an infamous crime, except on a presentment or 
 indictment of a grand jury, as required in the federal courts 
 by the fifth amendment to the federal constitution, is not rahder 
 by the fourteenth amendment a privilege or immunity of citi- 
 zens of the United States ; and a prosecution of a citizen of the 
 United States, in a state court and upon state auhority, for an 
 infamous crime, upon an information filed against. him by tbe 
 proper law officer of the state, in accordance with the con- 
 stitution and laws of such state, does not abridge the privileges. 
 or immunities of such citizen of the United States, and does, 
 not deny to him any right secured to him by the federal con- 
 stitution.*" 
 
 (2) Exemption from trial, in a state court and upon state- 
 authority, in a criminal prosecution, except by a common law 
 jury of twelve men, as required in the federal courts by the 
 sixth amendment to the constitution, is not made by the four- 
 teenth amendment a privilege or immunity of citizens of the 
 United States; and a trial of a citizen of the United States, in 
 a state court and upon state authorit3^, on a criminal charge, 
 by a jury of less than twelve men, in accordance with the con- 
 stitution and laws of such state, does not abridge the privileges 
 or immunities of such citizen of the United States, and does 
 not deny to him any right secured to him by the federal con- 
 stitution.*^ 
 
 (3) Exemption from capital execution by electricity under 
 the New York statute, of a person who has been duly convicted 
 of a capital offense under the laws of that state, is not a privi- 
 lege or immunity of a citizen of the United States.*'^ 
 
 § 266. Same — Same — Jury in civil cases. — A trial by jury in 
 a civil suit at common law in the state courts ds not a privilege 
 or an immunity of national citizenship, which the states are by 
 the fourteenth amendment forbidden to abridge.** 
 
 80 Maxwell V. Do-nr, 176 U. S. 581, 155, 160 (30:971); Re Kemmler, 
 617 (44:597). 136 U. S. 436 (34:519). 
 
 81 Max-well v. Do-w, 176 U. S. 581, ss Walker v. Sauvenet, 92 U. S. 
 617 (44:597). 90, 93 (23:67,8); State v. Saun- 
 
 82 MoElvaine v. Brush., 142 U. S. ders, 66 N. H. 88, 25 Atl. 595, 18 
 
 L. R. A. 656. 
 
§ 269' LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 235 
 
 § 267. Same — Same — Form of action in civil cases. — The 
 
 fourteenth amendment in no way undertakes to control the 
 power of a state to determine by what process legal rights 
 may be asserted or legal obligations be enforced, provided the 
 method of procedure adopted for these purposes gives rea- 
 sonable notice and affords fair opportunity to be heard before 
 the issues are decided. These being secured, it is not a right, 
 privilege or immunity of a citizen of the United States to have 
 a controversy in the state court prosecuted or determined by 
 one form of action instead of another. And it is not a denial 
 of a right protected by the federal constitution to refuse a trial 
 by a .jury, even though it were erroneous to construe the law 
 of the state as justifying the ref usal.^^ 
 
 § 268. Corporations not citizens within the meaning of the 
 constitutional provision. — ^A corporation is not a citizen within 
 the meaning of the second clause of the first section of the 
 fourteenth amendment to the constitution, which declares- 
 that "no state shall make or enforce any law which shall 
 abridge the privileges or immunities of citizens of the United 
 States." «= 
 
 (/) No State to Deprh'e Akt Person of Life, Liberty, or 
 Property, Without Due Process op Law. 
 
 § 269. The "due process of law" of the state — Meaning of 
 the constitutional limitation. — The third clause of the first 
 section of the fourteenth amendment to the constitution de^ 
 clares: "Nor shall any state deprive any person of life, liberty,, 
 or property, without due process of law." This is a limitation 
 upon the states; it is a prohibition upon state action, legisla- 
 tive, executive and judicial. '" The fifth amendment to the 
 constitution declares that "no person" shall "be deprived of 
 life, liberty, or property, without due process of law;" but 
 
 s*Iowa Central Railway Co. v. Rights Cases, 109 U. S. 3, 62 
 
 Iowa, 160 U. S. 389, 394 (40.467). (27:836); Ex parte Commonwealth 
 
 85 Orient Insurance Co. v. Daggs, of Virginia, 100 U. S. 313, 338 
 172 U. S. 557, 567 (43:552); Blake (25:667); Slaughter-House Cases, 
 V. McClung, 172 U. S. 239 (43:432). 16 Wall. 36 (21:394); United 
 
 86 Hurtando v. California, 110 U. States v. Cruikshank, 92 U. S. 542: 
 S. 516 (28:332); Maxwell v. Dow, (23:588). 
 
 176 U. S. 581, 617 (44:597); Civil 
 
■236 FEDERAL PROCEDURE AT LAW. § 269 
 
 that amendment is a limitation upon the federal government, 
 and is in no respect a restraint upon the states ; it is a prohibi- 
 tion upon federal action alone. ^'' Regarding these provisions 
 of the eon'Stitution, the following propositions are established 
 by the adjudicated cases ^^ upon the subject, viz. : (1) "Due pro- 
 cess of law" in the fifth amendment to the constitution means 
 that law of the land, which derives its authority from the leg- 
 islative powers conferred upon congress by the 'constitution of 
 the United States, exercised within the limits therein pre- 
 scribed, and interpreted according to the principles of the 
 common law. (2) "Due process of law" in the fourteenth 
 amendment to the constitution means that law of the land in 
 each state, which derives its authority from the inherent and 
 reserved powers of the state, exerted within the limits of those 
 fundamental principles of liberty and justice which lie at the 
 base of all our civil and political institutions, and the greatest 
 security for which resides in the right of the people to make 
 their own laws, and alter them at their pleasure. (3) Any 
 legal proceeding or judicial procedure, enforced by the au- 
 thority of a state, in accordance with its constitution and laws, 
 whether sanctioned by age or custom, or newly devised in the 
 discretion of the legislative power of the state, in furtherance 
 of the general public good, which regards and preserves those 
 principles of liberty and justice which lie at the base of all 
 our civil and political institutions, must be held to be due pro- 
 cess of law. (4) The fourteenth amendment to the constitu- 
 tion was not intended to establish a uniform system of judicial 
 
 87 Brown V. New Jersey, 175 tr. 92 TJ. S. 480 (23:478); Bowman v. 
 
 S. 172, 177 (44:119), and authori- Lewis, 101 U. S. 22 (25:989); Re 
 
 ties cited. Converse, 137 U. S. 624 (34:796); 
 
 ssHurtado v. California, 110 TJ. Caldwell v. Texas, 137 U. S. 692 
 
 S. 516, 558 (28:232); McNulty v. (34:816); Leeper v. Texas, 139 U. 
 
 California, 149 U. S. 648 (37:883); S. 462 (35:225); Davidson v. New 
 
 Hodgson V. Vermont, 168 tJ. S. 262, Orleans, 96 U. S. 97 (24:616) ; Mc- 
 
 273 (42:461); Maxwell v. Dow, 176 Mullen v. Anderson, 95 U. S. 37, 
 
 U. S. 581, 617 (44:597); Holden V. 42 (24:335); Hager v. Reclama- 
 
 Hardy, 169 U. S. 366 (42:780); tion District, 111 U. S. 701 
 
 Brown v. New Jersey, 175 U. S. (28:569); Giozza v. Tiernan, 148 
 
 172, 177 (44:119); Bolln v. Ne- TJ. S. 657 (37:599); Vincent v. 
 
 ■braska, 176 U. S. 83, 92 (44:382); California, 149 U. S. 648 (37:884); 
 
 "Walker v. Sauvlnet, 92 U. S. 90 Duncan v. Missouri, 152 U. S. 377 
 
 .(23:678); Kennard v. Louisiana, (38:485). 
 
§ 270 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 237 
 
 procedure in the several states, nor to guaranty any particular 
 forms of procedure, but to guaranty the very substance of in- 
 dividual rights to life, liberty and property, leaving each state 
 to prescribe its own modes and forms of judicial procedure. 
 (5) The fourteenth amendment forbids any arbitrary depriva- 
 tion, by a state, of life, liberty, or property, and, in the ad- 
 ministration of criminal justice, requires that no different or 
 liigher punishment shall be imposed on one than is imposed on 
 all for like offenses ; but it was not designed to interfere with 
 the power of the state to protect the lives, liberty and prop- 
 erty of the citizens, nor with the exercise of that power in the 
 adjudications of the courts of a state in administering the pro- 
 cess provided by the law of the state. (6) The powers of 
 the states to deal with crime within their borders is not lim- 
 ited by the fourteenth amendment, except that no state can de- 
 prive particular persons, or classes of persons, of equal and im- 
 partial justice under the law; and law, in its regular course of 
 administration through courts of justice is, within the meaning 
 of the fourteenth amendment, due process of law, and when 
 secured by the law of the state the constitutional requirement 
 is satisfied; and due process of law is so secured by laws oper- 
 ating on all alike, and not subjecting the individual to the 
 arbitrary exercise of the powers of government unrestrained by 
 the fundamental principles of private right and distributive 
 justice. (7) Protection to life, liberty and property rests, 
 primarily, with the states, and the fourteenth amendment fur- 
 nishes an additional guaranty against any encroachment by 
 the states upon those fundamental rights which belong to citi- 
 zenship, and which the state governments were created to 
 secure. 
 
 § 270. Same — The states control their own judicial proce- 
 dure — Law a progressive science. — ^In passing upon state legis- 
 lation alleged to be in conflict with the due process clause of 
 the fourteenth amendment to the constitution of the United 
 States, the supreme court of the union has recognized the ra- 
 tional principle that the law is a progressive science, ever un- 
 folding and expanding to meet the varying conditions and ex- 
 igencies of advancing civilization, and that, while the cardinal 
 principles of liberty and justice are immutable, the methods 
 and procedure by which justice is administered are flexible 
 and subject to constant change and readjustment; and, in eon- 
 
2.38 
 
 FEDEEiUj PROCEDUEE AT LAW. 
 
 § 270 
 
 sonance with this philosophical principle of law and govern- 
 ment, it is settled by the decisions that the several states of the 
 union are not tied down by the fourteenth amendment, nor by 
 any other provision of the federal constitution, to the judicial 
 procedure which existed at the common law, nor to the judicial 
 procedure which has existed at any' time in their own judicial 
 systems, but each state has full control over the procedure in 
 its own courts, both criminal and civil, subject only to the 
 qualification that such procedure must not work a denial of 
 fundamental rights, or conflict with specific and applicable 
 provisions of the federal constitution, and, subject to this lim- 
 itation, may avail itself of the wisdom gathered by the experi^ 
 ence of the century and the growth and development of legal 
 science, to make such changes in its methods of procedure, as 
 its people, through their legislature, may deem necessary or 
 appropriate for the conservation of their interests and the 
 promotion of their welfare.'' 
 
 soHurtado v. California, 110 U. 
 S. 516, 558 (28:232); Holden v. 
 Hardy, 169 U. S. 366, 398 (42: 
 780); Brawn v. New Jersey, 175 
 U. S. 172, 177, (44:119). 
 
 "The concessions of Magna 
 Charta were wrung from the king 
 as guaranties against the oppres- 
 sions and usurpations of his pre- 
 rogatives. It did not enter into 
 the minds of the barons to pro- 
 vide security against their own 
 body or in favor of the commons 
 by limiting the power of parlia- 
 ment; so that bills of attainder, 
 ex post facto laws, laws declaring 
 forfeitures of estates, and other 
 arbitrary acts of legislation which 
 occur so frequently in English 
 history, were not regarded as in- 
 consistent with the law of the 
 land; for, notwithstanding what 
 is attributed to Lord Coke in Bon- 
 ham's Case, the omnipotence of 
 parliament over the common law 
 was absolute, even against com- 
 mon right and reason. The actual 
 and practical security for English 
 
 liberty against legislative tyranny 
 was the power of a free public 
 opinion represented by the com- 
 mons. 
 
 "In this country written consti- 
 tutions were deemed essential to 
 protect the rights and liberties 
 •of the people against the en- 
 croachments of power delegated to 
 their governments, and the provi- 
 sions of Magna Charta were in- 
 corporated Into bills of rights. 
 They were limitations upon all 
 the powers of government, legis- 
 lative as well as executive and ju- 
 dicial. 
 
 "It necessarily happened, there- 
 fore, that as these broad and gen- 
 eral maxims of liberty and justice 
 held in our system a different 
 place and performed a different 
 function from their position and 
 office in English constitutional his- 
 tory and law, they would receive 
 and justify a corresponding and 
 more comprehensive interpreta- 
 tion. Applied in England only as 
 guards against executive interpre- 
 
§ 271 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 239 
 
 § 271. Same — First ten amendments no restraint on the 
 states. — The first ten amendments to the federal constitution 
 contain no restraints on the powers of the states, but were 
 intended to operate solely on the federal government, and 
 their operation was not extended by the fourteenth amendment 
 ito the states. It has been icontended on writ of error from the 
 supreme court of the United States to the highest courts of the 
 state, in many cases, civil and criminal, that the adoption of 
 the fourteenth amendment had the effect to extend the opera- 
 tion of the first ten amendments to the states, and that all the 
 restraints therein imposed upon the federal government have 
 become restraints on the powers of the states, and that they 
 can adopt no form of judicial procedure, nor make any thing 
 ^'due process of law," except those forms of procedure which 
 are allowed and permitted by the first ten amendments; but 
 this contention has been overruled and repudiated by the su- 
 preme court in every case, criminal and civil, in which it has 
 been presented.'''' 
 
 tation and tyranny, here they 
 have become bulwarks also 
 against arbitrary legislation; but, 
 in that application, as it would 
 be incongruous to measure and re- 
 strict them by the ancient custom- 
 ary English law, they must be 
 held to guaranty not particular 
 forms of procedure, but the very 
 substance of individual rights of 
 life, liberty and property. 
 
 "Restraints that could be fast- 
 ened upon executive authority 
 with precision and detail, might 
 prove obstructive and injurious 
 when imposed on the just and 
 necessary discretion of legislative 
 power; and, while in every in- 
 stance, laws, that violated express 
 and specific injunctions and prohi- 
 bitions, might, without embarrass- 
 ment, be judicially declared to be 
 void, yet, any general principle or 
 maxim, founded on the essential 
 nature of law, as a just and rea- 
 sonable expression of the public 
 
 will and of government, as insti- 
 tuted by popular consent and for 
 the general good, can only be ap- 
 plied to cases coming clearly with- 
 in the scope of its spirit and pur- 
 pose, and not to legislative provi- 
 sions merely establishing forms 
 and modes of attainment. Such 
 regulations, to adopt a sentence 
 of Burke's, 'may alter the mode 
 and application, but have no pow- 
 er over the substance of original 
 justice.' " Matthews, Justice, in 
 Hurtado v. California, 110 U. S. 
 516, 558 (28:232). 
 
 90 Brown v. New Jersey, 175 U. 
 S. 172, 177 (44:119) and authori- 
 ties cited; Maxwell v. Dow, 176 U. 
 S. 581, 617 (44:597); Hurtado v. 
 California, 110 U. S. 516 (28:232) ; 
 BoUn V. Nebraska, 176 U. S. 83, 
 92 (44:382); Hodgson v. Vermont, 
 168 U. S. 262, 273 (42:461); Mc- 
 Nulty V. California, 14fl U. S. 648 
 (37:883); Vincent v. California, 
 149 U. S. 648 (37:884). 
 
240 
 
 FEDERAL PEOCEDURE AT LAW. 
 
 § 273 
 
 § 272. Same — Same — Criminal prosecution upon informa- 
 tion. — The criminal prosecution of a person in a state court, 
 for a capital or other , infamous crime, without indictment or 
 presentment by a grand jury, upon an information made and 
 filed by the duly authorized law officer of the state, in con- 
 formity with the constitution and laws of the state, resulting 
 in his conviction, followed by the death sentence, does not de- 
 prive such person of his life without due process of law, nor of 
 any right secured to him by any provision of the federal con- 
 stitution or any amendment thereof .^^ 
 
 § 273. Same — Same — Criminal trial by a jury of less than 
 twelve men. — The trial in a state court of a person charged 
 with an infamous crime by a jury of less than twelve men, and 
 his conviction by such jury, and sentence to the state peniten- 
 tiary, followed by execution of the sentence, in accordance 
 with the constitution an.d laws of the state, do not deprive 
 such person of his liberty without due process of law, nor of 
 any right secured to him by any provision of the federal con- 
 stitution or any amendment thereof."^ 
 
 oiHurtado v. California, 110 U. 
 S. 516 (28:232); Bolln v. Nebras- 
 ka, 176 U. S. 83, 92 (44:382); 
 Hodgson V. Vermont, 168 U. S. 262, 
 273 (42:461); McNulty v. Cali- 
 fornia, 149 XJ. S. 648 (37:883); 
 Vincent v. California, 149 TJ. S. 
 648 (37:884); Davis v. Burke, 179 
 U. S. 399 (45:249). 
 
 92 Maxwell v. Dow, 176 U. S. 
 581, 617 (44:597). 
 
 "It appears to us that tlie ques- 
 tion whether a trial in criminal 
 cases not capital shall he by a 
 jury composed of eight instead of 
 twelve jurors, and whether in case 
 of an infamous crime a person 
 shall only be liable to be tried 
 after presentment or indictment 
 of a grand jury, are eminently 
 proper to be determined by the 
 citizens of each state for them- 
 selves, and do not come within the 
 clause of the amendment" (the 
 due process clause of the four- 
 
 teenth amendment) "under con- 
 sideration, so long as all persons 
 within the jurisdiction of the state 
 are made liable to be proceeded 
 against by the same kind of pro- 
 cedure and to have the same kind 
 of trial, and the equal protection 
 of the laws is secured to them. 
 It is emphatically the case of the 
 people by their organic law pro- 
 viding for their own affairs, and 
 we are of opinion they are much 
 better judges of what they ought 
 to have in these respects than 
 anyone else can be. The reasons 
 given in the learned and most 
 able opinion of Mr. Justice Mat- 
 thews, in the Hurtado case, for 
 the judgment therein rendered, 
 apply with equal force in regard 
 to a trial by a jury of less than 
 twelve jurors. The right to be 
 proceeded against only by indict- 
 ment, and the right to a trial by 
 twelve jurors, are of the same na- 
 
§ 275 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 241 
 
 § 274. Same^Same — Capital execution by electricity. — ^The 
 capital execution of a person by electricity, under and by vir- 
 tue of the laws of a state, who has been duly and legally con- 
 victed of a capital crime in a court of the state, and in accord- 
 ance with its constitution and laws, does not deprive such 
 person of his life without due process of law, nor of any right 
 secured to him by any provision of the federal constitution or 
 any amendment thereof."^ 
 
 § 275. Same — Same — Confronting accused with witnesses. — 
 The admission in evidence, against a person on trial,' for an 
 infamous crime, in a state court, of the deposition of a witness 
 taken at the examining trial in the presence of the accused 
 who then had an opportunity to cross-examine him, when it is 
 shown that at the time of the trial the witness was a non-resi- 
 dent of the state and permanently absent and his attendance 
 could not be procured, does not deny the accused due process 
 of law, nor of any right secured by the federal constitution, 
 where such deposition is admissible under the law of the state 
 
 ture, and are subject to the same 
 judgment, and the people in the 
 several states have the same right 
 to provide by their organic law 
 for the change of both or either. 
 Under this construction of the 
 amendment there can be no just 
 fear that the liberties of the citi- 
 zen will not be carefully protect- 
 ed by the states respectively. It 
 is a case of self-protection, and 
 the people can be trusted to look 
 out and care for themselves. 
 There is no reason to doubt their 
 willingness or their ability to do 
 so, and when providing in their 
 constitution and legislation for 
 the manner In which civil or crim- 
 inal actions shall be tried, it is in 
 entire conformity with the char- 
 acter of the federal government 
 that they should have the right 
 to decide for themselves what 
 shall be the form and character 
 of the procedure in such trials, 
 whether there shall be an indict- 
 
 16 
 
 ment or an information only, 
 whether there shall be a jury of 
 twelve or a lesser number, and 
 whether the verdict must be unan- 
 imous or not. These are matters 
 which have no relation to the 
 character of the federal govern- 
 ment. As was stated by Mr. Jus- 
 tice Brewer, in delivering the 
 opinion of the court in Brown v. 
 New Jersey (175 U. S. 172), the 
 state has full control over the pro- 
 cedure in its courts, both in civil 
 and criminal cases, subject only 
 to the qualification that such pro- 
 cedure must not work a denial of 
 fundamental rights or conflict 
 with specific and applicable provi- 
 sions of the federal constitution."^ 
 Peckham, Justice, in Maxwell v. 
 Dow, 176 U. S. 581, 617 (44:597). 
 
 93 Re Kemmler, 136 U. S. 436 
 (34:519); Mcllvaine v. Brush, 142- 
 U. S. 155 (35:971). 
 
 9* West V. Louisiana, 194 U. S> 
 258, 267 (48:965). 
 
242 FEDERAL PROCEDURE AT LAW. § 276 
 
 as declared by its highest court.®* At common law, the right 
 existed to read a deposition upon the trial of the defendant, 
 if such deposition had been taken when the defendant was 
 present and when the defendant's counsel had an opportunity to 
 cross-examine, upon proof being made to the satisfaction of the 
 court that the witness was, at the time of the trial, dead, in- 
 sane, too ill ever to be expected to attend the trial, or kept away 
 by the connivance of the defendant.'^ 
 
 § 276. Same — Same — Unreasonable searches and seizures — 
 Evidence. — The fact that papers and other subjects of evi- 
 dence, such as gambling paraphernalia and other instruments 
 of crime, may have been illegally taken from the possession of 
 the party against whom they are offered, or otherwise unlaw- 
 fully obtained, is no valid objection to their admissibility if 
 they are pertinent to the issue. Evidence obtained by means 
 of a search warrant is not inadmissible, either upon the ground 
 that it is in the nature of an admission made under duress or 
 that it is evidence which the defendant has been compelled to 
 furnish against himself, or on the ground that the evidence 
 has been unfairly or illegallj' obtained, even if it appears that 
 the search warrant was illegally issued. If a search warrant 
 be illegally issued, or if the officer serving it exceed his au- 
 thority, the party on whose complaint the warrant issued, or 
 the officer, would be responsible for the wrong done; but this 
 would be no good reason for excluding from evidence papers 
 seized, if they are pertinent to the issue. When papers are 
 offered in evidence, the court can take no notice as to how they 
 were obtained, whether lawfully or unlawfully, nor form a 
 collateral issue to determine that question. Evidence which is 
 pertinent to the issue is admissible, although it may have been 
 procured in an irregular, or even m an illegal, manner. A 
 trespasser may testify to pertinent facts observed by him, or 
 may put in evidence pertinent articles or papers found by him 
 while trespassing. For the trespass he may be held responsi- 
 ble civilly, or perhaps criminally, but his testimony is not 
 thereby rendered incompetent.'® Due process of law is not 
 
 95 West V. Louisiana, supra. Lewis, 14 East, 306; Common- 
 
 06 Adams v. New York, 192 U. S. wealth v. Tibbetts, 157 Mass. 519; 
 
 585 (48:575); Ck)mmonwealth v. Commonwealth v. Acton, 165 Mass. 
 
 Dana, 2 Met. 329; Lagett v. Tol- 11; Commonwealth v. Smith, 166 
 
 lervy, 14 East, 302; Jordan v. Mass. 730; Chastang v. State, 83 
 
§ 277. LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 243 
 
 denied by the New York statute which provides that: "The 
 possession, by any person other than a public officer, of any 
 writing, paper, or document representing or being a record 
 of any chance, share, or interest in numbers sold, drawn, or to 
 be drawn, or in what is commonly called policy, or in the 
 nature of a bet, wager, or insurance upon the drawing or 
 drawn numbers of any public or private lottery, or any paper, 
 print, writing, numbers, or device, policy slip, or article of any 
 kind, such as is commonly used in carrying on, promoting, or 
 playing the game commonly called policy, is presumptive evi- 
 dence of possession thereof knowingly and in violation of a 
 further statutory provision of the state for the violation of 
 which a heavy penalty is imposed; nor is due process of law 
 denied by the admission in evidence of documents seized under 
 a search warrant not authorizing them to be seized, but which 
 was issued for the seizure of certain gambling paraphernalia. ^'^ 
 § 277. Same — Same — Trial without jury in civil cases. — The 
 seventh amendment to the federal constitution, providing that, 
 ' ' in suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be pre- 
 served," relates only to trials in the courts of the United 
 States; and the states, so far as this amendment is concerned, 
 are left to regulate trials in their own courts in their own way. 
 The states are forbidden by the fourteenth amendment to de- 
 prive any person of his property without due process of law; 
 but this does not necessarily imply that all trials in the state 
 courts affecting the property of a person must be by jury. 
 The requirement of the fourteenth amendment is met, if the 
 trial is had according to the settled course of judicial proceed- 
 ings in the state. Due process of law is process due according 
 to the law of the land; and this process in the states is regu- 
 lated by the law of the state, and the power of the United 
 
 Ala. 29, 3 So. Rep. 304; State v. A. 269, 28 S. E. 624; State v. Pom- 
 
 Flynn, 36 N. H. 64; State v. Ed- eroy, 130 Mo. 489, 32 S. "W. 1002; 
 
 wards, 51 "W. Va. 220, 59 L. R. A. Gindrat v. People, 138 111.' 103, 27 
 
 465, 41 S. E. 429; Shields v. State, N. B. 1085; Trask v. People, 151 
 
 104 Ala. 35, 16 So. Rep. 85; Bacon 111. 523, 38 N. E. 248; Starchman 
 
 V-. United States, 38 C. C. A. 31, 79 v. State, 62 Ark. 538, 36 S. W. 940. 
 Fed. Rep. 35; State v. Atkinson, ot Adams v. New York, 192 U. 
 
 40 S. C. 363, 18 S. E. 1021; Will- S. 585 (48:575). 
 iams V. State, 100 Ga. 511, 39 L. R. 
 
244 FEDERAL PROCEDURE AT LAW. §' 27& 
 
 States supreme court over that law is to determine whether 
 it is in conflict with the law of the land.°^ 
 
 § 278. Same — Same — Contempts tried without a jury. — A 
 jury trial is not necessary to due process of law on an inquiry 
 for a contempt of court; and the constitution and laws of a ■ 
 state denying a jury trial in such cases are not in conflict with 
 that provision of the fourteenth amendment to the federal 
 constitution which inhibits the states from depriving any per- 
 son of life, liberty, or property, without due process of law. 
 In proceedings for contempt at common law, the accused was 
 not entitled to trial by jury; it has always been one of the 
 attributes — one of the powers necessarily incident to a court 
 of justice — that it should have the power of vindicating its 
 dignity, of enforcing its orders, or protecting itself from insult, 
 withoxit the necessitj'' of calling upon a jury to assist it in the 
 exercise of this power.'" 
 
 § 279. Same — Same — Form of action or proceedings. — The 
 due process clause of the fourteenth amendment to the federal 
 constitution does not control mere forms of procedure in state 
 courts, nor regulate the practice therein; all the requirements 
 of the constitutional provision are complied with, if, in the 
 proceedings which are claimed not to be due process of law, 
 the person condemned has had sufficient notice and adequate 
 opportunity has been afliorded him to defend. Due process 
 does not require that the action or proceedings in a state 
 court shall conform to any particular mode or form, but only 
 that there shall be a regular course of proceedings in which 
 notice is given of the claim asserted, and an opportunity af- 
 forded to defend against it; and if the essential requisites of 
 full notice and an opportunity to defend are complied with in 
 the state court, the United States supreme court will, upon writ 
 of error, accept the interpretation given by the state court as tO' 
 the regularity, under the state statilte, of the practice pursued 
 in the particular ease.^ The fact that a proceeding to condemn 
 
 08 Walker v. Sauvenet, 92 U. S. S. 31, 40 (33:801); Tinsley v. An- 
 
 90, 93 (23:678); Edwards v. EI- derson, 171 U. S. 101, 108 (43:91); 
 
 liott, 21 Wall. 557 (22:492); Telegram Co. v. Commoiiwealth, 
 
 Church V. Kelsey, 121 U. S. 282, 172 Mass. 298, 70 Am. St. Rep. 284, 
 
 284 (30:960). 52 N. E. 446, 44 L. R. A. 161. 
 
 «o Bilenbecker v. District Court i Louisville & Nashville R. Co. 
 
 of Plymouth County, Iowa, 134 U. v. Schmidt, 177 U. S. 230, 239 (44 : 
 
§ 281 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 245 
 
 a party to pay a judgment rendered in a cause to which he was 
 not a party and in which he was not served with process, is 
 by rule to show cause, does not deprive the proceeding of the 
 character of due process.^ 
 
 § 280. Same— Same — Notice. — In a suit to foreclose a ven- 
 dor's lien on land, within the state, personal service of notice 
 of the suit upon a non-resident defendant outside the jurisdic- 
 tion of the court, is sufficient to constitute due process of law, 
 so far as the foreclosure of the lien is concerned ; but five days' 
 notice in such case, where the distance between the place of 
 service and the place of return required four days constant 
 travel to reach the court, giving the party but one day, and 
 that a Sunday, to make preparation to comply with the exi- 
 gencies of the notice, with no estimated allowance of time for 
 accidental delays in transit, is not sufficient to constitute rea- 
 sonable notice or due process of law.^ A personal judgment 
 rendered against a non-resident defendant upon constructive 
 service by publication, and without the appearance of the 
 defendant, is void for want of due process of law.* 
 
 § 281. Same — ^Eminent domain. — ^AU private property is 
 held subject to the demands of public use, and the constitu- 
 tional guaranty of just compensation is not a limitation of the 
 power to take, but only a condition of its exercise; and the 
 due process clause of the fourteenth amendment does not make 
 it essential that the assessment of the damages in a state court be 
 made by a jury.'' Since the adoption of the fourteenth amend- 
 ment to the federal constitution, compensation for private prop- 
 erty taken by the state for public use constitutes an essential 
 element in due process of law, and, without such compensation 
 made or secured to the owner, the appropriatiCn of private 
 
 747); Wilson v. North Carolina, 103 U. S. 441 (26:582); Davis v. 
 
 169 V. S. 586 (42:865); Simon v. Wakelee, 156 U. S. 685 (39:583); 
 
 Craft, 182 U. S. 427 (45:1165); St. Clair v. Cox, 106 U. S. 353 (27: 
 
 [owa C. R. Co. V. Iowa, 160 TJ. S. 224) ; Brown v. Campbell, 100 Cal. 
 
 889 (40:467). 641, 38 Am. St. Rep. 317; Maddox 
 
 2 Louisville & Nashville R. Co. v. Craig, 80 Tex. 602; York v. 
 V. Schmidt, 177 U. S. 230, 239 (4*: - State, 73 Tex. 654. 
 
 747). 6 Long Island Water Supply Co. 
 
 3 Roller V. Holly, 176 U. S. 398, v. Brooklyn, 166 U. S. 685 (41: 
 413 (44:520). 1165); Backus v. Fort Street 
 
 4 Pennoyer v. Neff, 95 U. S. 714, Union Depot Co., 169 U. S. 557 
 748 (24:565); Ins. Co. v. Bangs, (42:853). 
 
246 FEDERAL PROCEDURE AT LAW, § 282 
 
 property to public use, no matter under what form of proce- 
 dure it is taken, would violate this provision of the federal con- 
 stitution; and it is a condition precedent to the exercise of the 
 power of eminent domain by the state ^nd its agencies, that the 
 state statutes make provision for reasonable compensation to the 
 owher.^ The mode of exercising the right of eminent domain, 
 by a state, in the absence of any provision in the organic law 
 prescribing a contrary course, is within the discretion of the 
 legislature.^ Due process of law as applied to judicial pro- 
 ceedings instituted for the taking of private property for pub- 
 lic use, means such process as recognizes the right of the owner 
 to be compensated if his property be wrested from him and 
 transferred to the public; the mere form of the proceeding 
 instituted against the owner, even if he be admitted to defend, 
 cannot convert the process used into due process of law, if the 
 necessary result be to deprive him of his property without 
 compensation.^ 
 
 § 282. Same — Same—Whether taking is for a public use 
 presents a federal question. — Whether or not a taking of pri- 
 vate property in the exercise of the power of eminent domain 
 under the constitution and laws of a state, is a taking for a 
 public use, presents a federal question, when the claim is duly 
 made, under the due process clause of the fourteenth amend- 
 ment to the constitution; and the supreme court of the United 
 States, while according great respect and weight to the de- 
 cisions of the highest court of the state in the construction 
 of its own constitution and laws upon the subject, will deter- 
 
 Chicago, B. & Q. R. Co. v. Chi- -8 Chicago, B. & Q. R. Co. v. Chi- 
 cago, 166 U. S. 226, 263 (41:979); cago, 166 U. S. 226, 263 (41:979). 
 Pumpelly v. Green Bay & M. Canal It is held to be a settled prin- 
 Co., 13 Wall. 160 (20:557); Searl ciple of universal law, reaching 
 v. Lake County School Dist., 133 back of all constitutional provl- 
 U. S. 553 (33:740); Sweet v. sions, that the right to compensa- 
 Rechel, 159 U. S. 380 (40:188); tion is an incident to the exercise 
 Scott V. Toledo, 36 Fed. 385; of the power of eminent domain; 
 Henderson v. Central Pass. R. Co., and that the one is so inseparably 
 21 Fed. 359; Baker v. Norwood, connected with the other that 
 74 Fed. 997; Long Island Water they may be said to exist, not as 
 Supply Co. V. Brooklyn, 16G U. S. separate and ^distinct principles, 
 685 (41:1165); Norwood v. Baker, but as parts of one and the same 
 172 TJ. S. 269 (43:443). principle. Sinnickson v. Johnson, 
 
 7 Secombe v. Ry. Co., 23 Wall. 17 N. J. L. 129, 34 Am. Dec. 184. 
 108, 119 (23:67). 
 
§ 282 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 247 
 
 mine the question for itself.' If the legislature of a state, 
 assuming to act in the exercise of the power of eminent do- 
 main, enacts legislation which, as construed by the highest 
 court of the state, is in conflict with the federal constitution 
 or with any valid act of congress, it is the duty of the courts of 
 the United States, in any proper case presenting the question, 
 to so decide, and to thus enforce the provisions of the federal 
 constitution; but if such legislation do not violate any pro- 
 vision, expressed or properly implied, of the federal constitu- 
 tion, there is no justification for the federal courts to run coun- 
 ter to the decisions of the highest courts of the state upon ques- 
 tions involving the construction of the state statutes or consti- 
 tution, on any alleged ground that such decisions are in conflict 
 with sound principles of general constitutional law.^° Where 
 the record does not show that the question, whether the con- 
 demnation statute of the state is in conflict with the federal 
 constitution, was raised in either the trial court or the supreme 
 court of the state, and was passed on by either the one or the 
 other of those courts, no federal question is presented, and the 
 supreme court of the United States has no jurisdiction to re- 
 view the judgment of the state court. ^^ 
 
 9 Fallbrook Irrigation District citizen is deprived of his property 
 
 V. Bradley, 164 TJ. S. 112, 179 (41: without due process of law if it 
 
 369). be taken by or under state author- 
 
 "There is no specific prohibition ity for any other than a public 
 in the federal constitution which use, either under the guise of tax- 
 acts upon the states in regard to ation or by the assumption of the 
 their taking private property for right of eminent domain. In that 
 any but a public use. The way, the question whether private 
 fifth amendment, which provides, property has been taken for a pub- 
 among other things, that such lie use becomes material in this 
 property shall not be taken for court, even where the taking is 
 public use without just compensa- under the authority of the state 
 tlon made, applies only to the fed- instead of the federal govern- 
 eral government, as has many ment." Peckham, Justice, in Fall- 
 times been decided. In the four- brook Irrigation Dist. v. Bradley, 
 teenth amendment the provision supra. 
 
 regarding the taking is omitted, lo Fallbrook Irrigation Dist. v. 
 
 and the prohibition against the Bradley, 164 U. S. 112, 179 (41: 
 
 state is confined to its depriving 369). 
 
 any person of life, liberty, or prop- " Hooker v. Los Angeles, 188 U. 
 
 erty, without due process of law, S. 314, 321 (47:487). 
 It is claimed, however, that the 
 
248 FEDERAL PROCEDUKE AT LAW. § 284 
 
 § 283. Same — Same — Taking for private use. — The taking 
 by the state of the private property of one person or corpora- 
 tion, without the owner's consent, for the private use of another, 
 is not due process of law, and is a violation of the due process 
 clause of the fourteenth amendment; and the order of a state 
 board of transportation, acting under and in accordance with 
 the laws thereof, requiring a railroad company to grant to cer- 
 tain private persons named the right and privilege of erecting 
 and maintaining upon its grounds and adjacent tracks, at a 
 point specified in the order, or at some other suitable and con- 
 venient place, at a station named, an elevator and all and equal 
 facilities for the handling and shipping of grain at that station, 
 which it had granted to other shippers of grain there, and to 
 cease from all discrimination or preferences to and of shippers 
 and operators of elevators at that station, is, so far as it required 
 the railroad company to surrender a part of its land to the par- 
 ties applying for it, for the purpose of building and maintain- 
 ing their elevator upon it, a taking of the private property of the 
 railroad company for the private use of the parties seeking its 
 use, and, therefore, in conflict with the fourteenth amendment, 
 and void.^^ A railroad corporation holds its station grounds, 
 tracks, and right of way, as its private property, but for the 
 public use for which it was incorporated; and may, in its dis- 
 cretion, permit them to be occupied by other parties with 
 structures convenient for the receipt and delivery of freight 
 upon its railroad, so long as free and safe passage is left for 
 the carriage of freight and passengers, and cannot be com- 
 pelled to grant, against its consent, to private persons the right 
 to build and maintain upon its right of way or other grounds 
 permanent structures for receiving and shipping freight.^^ 
 
 § 284. Same — Same — State laws fixing destructive rates for 
 common carriers. — ^It is the settled law that corporations are 
 persons within the meaning of the clause of the fourteenth 
 amendment to the constitution forbidding the deprivation of 
 property without due process of law;^* and state legislation 
 establishing a tariff of rates for the carriage of freight and 
 
 12 Missouri Pacific R. Co. v. Ne- 489) ; Grand Trunk R. Co. v. Rich- 
 braska, 164 U. S. 403, 417 (41: ardson, 91 U. S. 454 (23:356). 
 489). "Santa Clara County v. South- 
 
 13 Missouri Pacific R. Co. v. Ne- ern P. R. Co., 118 U. S. 394 (30: 
 tiraska, 164 U. S. 403, 417 (41: 118); Mining Co. v. Pennsylvania, 
 
§ 285 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 249 
 
 passengers which is so unreasonable as to practically destroy 
 the value of the property of the companies engaged in the car- 
 rying business, deprives such companies of their property with- 
 out due process of law, and is void, and the enforcement of 
 such a tariff of rates will be enjoined in equity/^ 
 
 § 285. Same — State law requiring transfer facilities at rail- 
 road intersections. — Railway companies owning connecting, 
 crossing or intersecting lines of railroads, are not deprived of 
 their property withput due process of law by a judgment ren- 
 dered by a state court pursuant to and in conformity with a 
 statute of the state, requiring them to provide at the place of 
 connection, crossing, or intersection, ample facilities by track 
 connections for transferring any and all cars used in the regular 
 business of their respective lines of road from the line or tracks 
 of one of the companies to those of the other, and to provide at 
 such place equal and reasonable facilities for the interchange of 
 ears and traffic between their respectiye lines, and for the receiv- 
 ing, forwarding, and delivering property and cars to and^from 
 their respective lines, when such judgment is, under the facts 
 of the particular case, a reasonable exercise of the power of 
 regulation in favor of the interests and for the accommodation 
 of the public, and does not unduly, unfairly, or improperly 
 affect the pecuniary rights or interests of the companies; al- 
 though to carry out the judgment, it may be necessary for the 
 companies affected by it to acquire additional lands by the 
 exercise of the power of eminent domain and will result in ad- 
 ditional expense.^" In deciding the case cited, the supreme 
 court, speaking through Mr. Justice Peckham, said: "Adher- 
 
 125 U. S. 181 (31:650); Minneap- 125 U. S. 618 (31:841); Chicago, 
 
 olis & S. Li. R. Co. v. Beckwith, M. & St. P. R. Co. v. Minnesota, 
 
 129 U. S. 29 (32:586); Charlotte, 134 U. S. 418 (33:970); Chicago & 
 
 C. & A. R. Co. V. Gibbes, 142 U. S. G. T. R. Co. v. Wellman, 143 U. S. 
 
 S86 (35:1051); Covington & L. 339 (36:176) ; Reagan v. Farmers' 
 
 Turnpike Road Co. v. Sandford, Loan & T. Co., 154 U. S. 362 (38: 
 
 164 U. S. 578, 598 (41:560); Gulf 1014); Covington & L. Turnpike 
 
 C. S. F. R. Co. V. Ellis, 165 U. S. Road Co. v. Sandford, 164 U. S. 
 
 150 (41:666); Smyth v. Ames, 169 578, 598 (41:560); Atlantic Coast 
 
 U. S. 466 (42:819). Line R. Co. v. North Carolina 
 
 16 St. Louis & S. F. R. Co. v. Corp. Com., 206 U. S. 1-27 (51:933). 
 
 Gill, 156 U. S. 649 (39:567); Rail- lo Wisconsin, M. & P. R. Co. v. 
 
 road Commission Cases, 116 U. S. Jacobson, 179. U. S. 287, 302 (45: 
 
 307 (29:636); Dow v. Beidelman, 194). 
 
250 FEDERAL PEOCEDUEE AT LAW. § 285' 
 
 ing strictly to the question involved in this case, the validity 
 or invalidity of the judgment actually rendered, we are met 
 by the objection of the plaintiff in error that the judgment 
 itself is necessarily and inherently illegal, because upon the- 
 conceded facts, if the judgment be enforced, it can only result, 
 in taking the property of the plaintiff in error without due 
 process of laTy, and in refusing it the equal protection of the' 
 laws, and in depriving if of its liberty to contract with such 
 persons or corporations as it may choose. We think not one of 
 these objections tenable. At common law the courts would 
 be without power to make such an order as was made in the 
 case by the state court. Legislative authority would be neces- 
 sary in order to give power to the courts to render a judgment 
 of this kind. If power were granted by the legislature, and it 
 amounted in the particular case simply to a fair, reasonable,, 
 and appropriate regulation of the business of the corporation,, 
 when considered with regard to the interests both of the com- 
 pany and the public, the legislation would be valid, and would 
 furnish, therefore, ample authority for the court to enforce 
 it. Railroads have from the very outset been regarded as pub- 
 lic highways, and the right and the duty of the government 
 to regulate, in a reasonable and proper manner, the conduct and. 
 business of railroad corporations have been founded upon that 
 fact. Constituting public highways of a most important char- 
 acter, the function of proper regulation by the government 
 springs from the fact that in relation to all highways the duty 
 of regulation is governmental in its nature. At the present 
 day there is no denial of these propositions. It is because 
 they are such highways that the land, upon which the rails are 
 laid, and also that which may be necessary for the other pur 
 poses of the corporation, is said to be used for a public pur- 
 pose, and on that ground the power of eminent domain which 
 is given them is held to be a constitutional exercise of legislative- 
 authority. The right of the legislature to tax in furtherance 
 of such use is founded upon the same consideration that the use 
 is a public one, and therefore taxation in support of such use- 
 is valid. The companies hold a public franchise, and govern- 
 mental supervision is therefore valid. They are organized for 
 the public interests and to subserve primarily the public good 
 and convenience.' While this power of regalation exists, it is- 
 
§ 286 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 251 
 
 also to be remembered that the legislature cannot under the- 
 guise of regulation interfere with the proper conduct of the 
 business of the railroad corporation in matters which do not 
 fairly belong to the domain of reasonable regulation. The only 
 question arising as each case comes up for decision is whether 
 in the particular case the power has been duly exercised. ' ' " 
 
 § 286. Same — Same — Limitations of the fourteenth amend- 
 ment operate on all instrumentalities of the state government. — 
 The limitations imposed by the fourteenth amendment upon the 
 states refer to and operate upon all the instrumentalities of the- 
 state— its legislative, executive, and judicial authorities — and 
 whoever, by virtue of public or official position under a state 
 government, deprives another of his property without due 
 process of law, violates the constitutional inhibition against the 
 state ; as he acts in the name of and for the state, and is clothed 
 with the state 's power, his act is the act of the state.^^ The state- 
 may not, by any of its agencies, disregard the inhibitions of the 
 amendment. Its judicial authorities may keep strictly within 
 the letter of the statutes prescribing the forms of procedure tO' 
 be followed in the courts, and which may be ample for the pro- 
 tection of the rights of the citizen, and may give the parties in- 
 terested the fullest opportunity to be heard, and yet they may,, 
 in their final judgments and decrees, deny the rights secured by 
 the constitutional provision. Compensation for private prop- 
 erty taken for public use is an essential element of due process 
 of law as ordained by the fourteenth amendment, and the final 
 judgment of a state court, under authority of which the prop- 
 erty is in fact taken, is to be deemed the act of the state within 
 the meaning of the amendment ; and if, by such judgment, pri- 
 vate property be taken by the state or under its direction, for 
 public use, without compensation made or secured to the owner,, 
 the affirmance of that judgment by the highest court of the 
 state is a denial by the state of the rights secured to the owner 
 by the due process clause of the amendment.^^ 
 
 IT Wisconsin, M. & P. R. Co. v. v. Hopkins, 118 U. S. 356 (30: 
 
 Jacobson, supra. 220); Gibson v. Mississippi, 162- 
 
 18 Chicago, B. & Q. R. Co. v. Chi- U. S. 579 (40:1078) ; Scott v. Mc- 
 
 cago, 166 U. S. 226, 263 (41:979); Neal, 154 U. S. 34 (38:896); Ry. 
 
 Ex parte Virginia, 100 U. S. 339, v. Taylor, 86 Fed. Rep. 184. 
 347 (25:676); Neal v. Dela-ware, i9 Chicago, B. & Q. R. Co. v. Chi- 
 
 103 -U. S. 370 (26:567); Yeck Wo cago, 166 U. S. 226, 263 (41:979), 
 
252 FEDERAL PROCEDURE AT LAW. § 288 
 
 § 287. Same — State statute denying non-resident corporation 
 equality in distribution of insolvent's assets. — A state statute 
 which denies to corporations of other slates equality with resi- 
 dent creditors in the distribution of the assets of an insolvent 
 corporation doing business in the state, does not deprive such 
 non-resident corporations of their property without due process 
 of law; ^° nor is a non-resident mortgagee deprived of his prop- 
 erty without due process of law by a state statute which subor- 
 dinates his claim to the claims of resident creditors.^^ 
 
 § 288. Due process of law in state taxation — Strict judicial 
 procedure not required. — Neither in the states of the American 
 union, nor in England prior to the revolution, have taxes, as a 
 general rule, been collected by regular judicial proceedings in 
 the regular and ordinary courts of justice; but the necessities 
 ■of government, the usages of the people, and the nature of the 
 governmental power exercised, and the duties to be performed 
 by public officials, have established a mode of procedure in the 
 ,levy, assessment, and collection of taxes, which is less formal 
 and materially different from strict and formal judicial proce- 
 dure, but which, however, is and always has been regarded and 
 held as due process of law.^^ Where life, or liberty, or the title, 
 ■or possession of property, is involved, due process of law re- 
 quires that there be a regular course of judicial proceedings, 
 which imply that the party to be affected shall have notice and 
 an opportunity to be heard; but where the taking of property 
 is in the enforcement of a tax, the proceeding is necessarily less 
 formal, and whether notice to the owner is at all necessary may 
 depend upon the character of the tax and the manner in which 
 its amount is determinable. The necessity of revenue for the 
 support of the government does not admit of the delay attend- 
 ant upon regular proceedings in a court of justice, and they are 
 not required for the enforcement of taxes and assessments. In 
 ■determining w^iat is due process of law, the courts will take 
 into consideration the cause and object of the taking, whether 
 under the power of eminent domain, or the taxing power, and, 
 if under the latter, the nature of the tax, whether general, or a 
 
 20 Blake v. McClung, 172 U. S. 22 Kelly v. Pittsburg, 104 U. S. 
 ^39 (43:432). 78, 83 (26:658). 
 
 21 Sully V. American Nat. Bank, 
 178 U. S. 289 (44:1072). 
 
§ 288 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 253 
 
 local assessment for local improvements ; and if the procedure 
 or process adopted be suitable to the special case and adapted 
 to the end to be attained, it will be adjudged due process, but 
 if found to be arbitrary, oppressive and unjust, it will be de- 
 clared to be not due process of law.^^ There are some kinds 
 or forms of taxation, in which the owners of the property upon 
 which the tax or burden is to be imposed are entitled to notice 
 and an opportunity to be heard at some stage of the proceeding ; 
 and .in all such cases the due process clause of the fourteenth 
 amendment to the federal constitution is an inhibition upon, 
 the states, imposing a limitation not upon the taxing power 
 itself, but upon the mode and manner of its exercise ; and this 
 constitutional restraint upon state procedure iu taxation will 
 be enforced by the federal judiciary, and more especially by the 
 supreme court upon writ of error to the highest court of the 
 state, in all cases where the objection is duly made and the right 
 under the constitutional provision is set up in the manner and 
 at the time required by the laws and regulations controlling 
 federal procedure.^* 
 
 23 Hagar v. Reclamation Dis- 
 trict, 111 U. S. 701, 715 (28:569); 
 Cincinnati, N. O. & T. P. R. Co. v. 
 Kentuclty, 115 V. S. 321, 339 (29: 
 414) ; Bell's Gap R. Co. v. Pennsyl- 
 vania, 134 V. S. 232 (33:892) ; Mc- 
 Millen v. Davidson, 95 U. S. 37, 42 
 (24:335); Winona & St. Peter Land 
 Co. V. Minnesota, 159 U. S. 526, 539 
 (40:247); Pittsburg, C, C. & St. 
 L. R. Co. V. Backus, 154 U. S. 241 
 (38:1031). 
 
 2* Davidson v. New Orleans, 96 
 V. S. 97, 108 (24:616); Hagar v. 
 Reclamation District, 111 U. S. 
 701, 715 (28:509) ; Spencer v. Mer- 
 chant, 125 U. S. 356 (31:768); 
 Winona Land Co. v. Minnesota, 
 159 U. S. 537 (40:251); Fallbrook 
 Irrigation District v. Bradley, 164 
 U. S. 155 (41:387); Walston v. 
 Nevin, 128 U. S. 578, 582 (32:544) ; 
 Kentucky Railroad Tax Cases, 115 
 TJ. S. 332 (29:417); Lent v. Till- 
 
 son, 140 U. S. 316, 334 (35:419); 
 Paulson V. City of Portland, 149 
 U. S. 30, 44 (37:637); Warts v. 
 Hoagland, 114 U. S. 615 (29:232); 
 Bellingham Bay & British Colum- 
 bia Railroad Co. v. City of New 
 Whatcom, 172 TJ. S. 314, 320 (43: 
 460) ; Stanley v. Albany Co.. 121 
 U. S. 550 (30:1003); Mobile Coun- 
 ty V. Kimball, 102 U. S. 691 (26: 
 238) ; United States v. Memphis, 
 97 U. S. 284 (24:937); Laramie 
 County V. Albany Co., 92 U. S. 
 307 (23:552); Palmer v. Mc- 
 Mahon, 133 V. S. 660 (33:772); 
 Bell's Gap R. Co. v. Pennsylvania, 
 134 U. S. 232 (33:892); Pittsburg, 
 C, C. & St. L. R. Co. V. Backus, 
 154 U. S. 421 (38:1031); Kelly v. 
 Pittsburg, 104 U. S. 78 (26:658); 
 Webster v. Fargo, 187 TJ. S. 894 
 (45:912); Shumate v. Heman, 181 
 U. S. 402 (45:922); Parrell v. 
 West Chicago Park Comm'rs, 187 
 
■254 FEDERAL PROCEDURE AT LAW. § 289 
 
 § 289. Same — When notice and an opportunity to be heard 
 are requisite. — MTiere an ad valorem tax is levied on property, 
 and the value of the property is to be ascertained by assessors 
 ■or by a special tribunal appointed for that purpose upon such 
 evidence as they may obtain, tlie owner of the property is en- 
 titled to notice and an opportunity to be heard on the validity 
 and amount of the tax imposed on his property, either before 
 the amount is determined or in subsequent proceedings for its 
 collection. -° In distinguishing between the kinds of taxation 
 in which notice and an opportunity to be heard are not re- 
 quired and those in which they are required, the supreme court 
 of the United States, in one of the cases cited, speaking through 
 Field, Justice, said : 
 
 ' ' Of the different kinds of taxes which the state may impose, 
 there is a vast number of which, from their nature, no notice 
 ■can be given to the taxpayer, nor would notice be of any pos- 
 sible advantage to him, such as poll taxes, license taxes (not 
 •dependent upon the extent of his business) and, generally, 
 specific taxes on things or persons or occupations. If the tax 
 be not paid, the property of the delinquent may be sold and he 
 be thus deprived of his property. Yet there can be no ques- 
 tion, that the proceeding is due pro.cess of law, as there is no 
 inquiry into the weight of evidence, or other element of a judi- 
 cial nature, and nothing could be changed by hearing the tax- 
 payer. No right of his is, therefore, invaded. * * * But 
 where a tax is levied on property, not specifically but accord- 
 ing to its value, to be ascertained by assessors appointed for 
 that purpose upon such evidence as they may obtain, a different 
 principle comes in. The. officers, in estimating the value, act 
 judicially, and in most of the states provision is made for the 
 correction of errors committed by them, through boards of re- 
 vision or equalization, sitting at designated periods provided by 
 
 U. S. 404i (45:924); Savings & L. Cases, 115 U. S. 332 (29:417); 
 
 Soc. V. Multnomah County, 1G9 U. Lent v. Tillson, 140 U. S. 316, 334 
 
 ■3.421(42:803). (35:419); Winona & St. Peter 
 
 26 Hagar v. Reclamation Dis- Land Co. v. Minnesota, 159 U. S. 
 
 trict; 115 U. S. 701, 715 (28:5G9); 526, 539 (40:247); Paulsen v. 
 
 Bellingham Bay & British Colum- Portland, 149 U. S. 30, 42 (37: 
 
 "bia Railroad Co. v. New Whatcom, 637) ; Palmer v. McMahon, 133 U. 
 
 172 U. S. 314, 320 (43:460); David- S. 660 (33:772); Pittsburg, C, C. 
 
 son v. New Orleans, 96 U. S. 97, 105 & St. L. R. Co. v. Backus, 154 U. 
 
 ^24:610); Kentucky Railroad Tax S. 421 (38:1030) 
 
§ 290 LIMITATIONS IMPOSED BY FEDEKAL CONSTITUTION. 255 
 
 law, to hear complaints respecting the justice of the assessment. 
 The law in prescribing the time when such complaints will be 
 heard, gives all the notice required, and the proceeding by 
 which the valuation is determined, though it may be followed, 
 if the tax be not paid, by a sale of the delinquent's property, 
 is due process of law. In some states, instead of a board of re- 
 Tision or equalization, the assessment may be revised by pro- 
 ceedings in the courts, and be there corrected if erroneous, 
 or set aside if invalid; or objections to the validity or the 
 amount of the assessment may be taken when the attempt is 
 made to enforce it. In such eases all the opportunity is given 
 to the taxpayer to. be heard respecting the assessment, which 
 ■can be deemed essential to render the proceedings due process 
 oflaw."=« 
 
 § 290. Same — Same — What is due process of law in taxation 
 — General rule. — "What is due process of law in the levy, assess- 
 ment and collection of taxes, within the meaning of the four- 
 teenth amendment to the federal constitution, in those forms of 
 taxation which require notice and an opportunity to be heard? 
 The general rule established' by the decided cases seems to be 
 that : "Whenever by the laws of a state, or by state authority, a 
 tax, assessment, servitude, or other burden is imposed upon 
 property for the public use, whether it be of the whole state, 
 or some more limited portion of the communitj', as a local as- 
 sessjnent for local improvements, and those laws provide for 
 a mode of confirming or contesting the charge thus imposed 
 upon the property, either before the amount is determined or 
 in subsequent proceedings for its collection, in special tribu- 
 nals established for that purpose, or in the ordinary courts of 
 justice, upon due notice to the owner, either actual or con- 
 structive, and in the latter case either by publication or by 
 statute fixing the time and place of the hearing, and upon such 
 hearing the owner is given an opportunity to question the vak 
 idity and amount of the tax, the judgment in such proceedings 
 meets the requirements of the fourteenth amendment as to due 
 process of law, however obnoxious it may be to other objec- 
 tions.^^ In one of the cases cited, the court states the two 
 
 2SHagar v. Reclamation Dls- U. S. 97, 108 (24:616); Hagar v. 
 
 trict, 115 U. S. 701, 715 (28:569). Reclamation District, 111 U. S. 
 
 27 Davidson v. New Orleans, 96 701 (28:569); Lent v. Tillson, 140 
 
256 FEDERAL PKOCEDUKE AT LAW. § 291 
 
 following propositions, and sustains them by a full citation of 
 authorities namely : 
 
 (1) The rule is that a law authorizing the imposition of a 
 tax or assessment upon property according to its value does 
 not infringe that provision of the fourteenth amendment to the 
 constitution which declares that no state shall deprive any 
 person of property without due process of law, if the owner 
 has an opportunity to question the validity or the amount of it 
 either before the amount is determined or in subsequent pro- 
 ceedings for its collection.^' 
 
 (2) That the notice is not personal but by publication, is not 
 sufficient to vitiate it; and where the state statute prescribes 
 the court in which and the time at which the various steps in 
 the collection proceedings shall be taken, a notice by publica- 
 tion to all parties interested, to appear and defend, is suitable 
 and one that s^ifficiently answers the demand of due process of 
 law.=° 
 
 § 291. Same — Same — Same — Notice. — When a state statute, 
 providing for the assessment and valuation of property for 
 purposes of taxation, names and fixes the time and place for 
 the meeting of the assessment board, that is sufficient notice 
 to the owners of the property to be assessed and valued; per- 
 sonal notice is unnecessary.^" And a state statute which di- 
 rects notice by publication that at a certain time the equaliza- 
 tion board will hear and consider objections to the assessment 
 rate by parties aggrieved by such assessment, is due process of 
 
 U. S. 316, 334 (35:419); Winona Portland, 184 U. S. 61 (46:43); 
 
 & St. Peter Land Co. v. Minnesota, Bank v. Pennsylvania, 167 U. S. 
 
 159 U. S. 537 (40:251); Fallbrook 461 (42:236); Goodrich v. Detroit, 
 
 Irrigation District v. Bradley, 164 184 U. S. 432 (46:627). 
 
 XJ. S. 155 (41:387); Bellingham as Winona & St. Peter Land Co. 
 
 Bay & British Columbia Railroad v. Minnesota, 159 XJ. S. 526, 539 
 
 Co. V. New Whatcom, 172 XJ. S. 314, (40:247), citing authorities. 
 
 320 (43:460); Kentucky Railroad 29 Winona & St. Peter Land Co. 
 
 Tax Cases, 115 XJ. S. 332 (29:417); v. Minnesota, 159 U. S. 526, 539 
 
 Spencer v. Merchant, 125 XJ. S. 345 (40:247), citing authorities. 
 
 (31:763); Palmer v. McMahon, 133 so pittsburg, C, C. & St. L. R. 
 
 XJ. S. 660 (33: 772); Pittsburg, C, Co. v. Backus, 154 U. S. 421, 438 
 
 C. & St. L. R. Co. V. Backus, 154 (38:10?1); State R. Tax Cases, 92 
 
 U. S. 421 (38:103); Taylor v. Se- U. S. 610 (23:672); Kentucky 
 
 cor (State R. Tax Cases), 92 U. S. Railroad Tax Cases, 115 XJ. S. 332 
 
 575 (23:672); Paulsen v. Port- (29:417). 
 land, 149 U. S. 30 (37:637); King v. 
 
§ 292 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 257 
 
 law, where the publication is made in a reasonable manner and 
 for a reasonable length of time, and the time and place flxed 
 in the notice are such that with reasonable effort the property^ 
 owner will be able to attend and present his objections.'^ 
 
 § 292. Same — Same — Local assessments — Rules of appor- 
 tionment. — The state legislature may, by statute, in the exer- 
 cise of the taxing power, and without infringing the due pro- 
 cess clause of the fourteenth amendment, create special local 
 taxing districts, for the purpose of local improvements, andl 
 conclusively determine the question of benefits, and charge the 
 cost of such improvement, in whole or in part, upon the prop- 
 erty in the district, according either (1) to valuation, or 
 (2) superficial area, or (3) frontage.'^ In creating local tax- 
 ing districts, the legislature may ascertain and determine for 
 itself (1) the amount of tax to be raised, and (2) the benefited 
 property which is to be embraced within the district, and upon 
 which the tax is to be apportioned; or the legislature may com- 
 mit the ascertainment and determination of both these matters 
 to commissioners,'' in which latter event the land owner has 
 a right to be heard upon the question of benefits to his prop- 
 erty before it is taken into the taxing district to be subjected 
 to the assessment.'* "In the absence of any more specific con- 
 stitutional restriction than the general prohibition against tak- 
 ing private property without due process of law, the legislature 
 of the state having the power to fix the' sum necessary to be 
 levied for the expense of a public improvement, and to order it 
 
 31 Bellingham Bay & British Co- land, 149 IT. S. 30, 40 (37:637);, 
 lumbia Railroad Co. v. New What- Hagar v. Reclamation District, 111 
 com, 172 U. S. 314, 320 (43:460); V. S. 701 (28:569); Pallbrook Ir- 
 Lent V. Tillson, 140 U. S. 316, 328 rigation Co. v. Bradley, 164 TJ. S. 
 (35:419); Paulsen v. Portland, 112 (41:369); Detroit v. Parker, 
 149 TJ. S. 30 (37:637). 181 U. S. 399 (45:917); Tona- 
 
 32 Webster v. Fargo, 181 IT. S. wanda v. Lyon, 181 IT. S. 389 (45: 
 394 (45:912); Shumate v. Heman, 908); Cass Farm Co. v. Detroit, 
 181 U. S. 402 (45:922); Farrell v. 181 U. S. 396 (45:914). 
 
 West Chicago Park Com'rs, 181 IT. 33 Spencer v. Merchant, 125 U.. 
 
 S. 404 (45:924); French v. Bar- S. 345, 361 (31:763). 
 ber Asphalt Paving Co., 187 IT. S. 34 Fallbrook Irrigation District 
 
 324, 370 (45:879); Davidson v. v. Bradley, 164 U. S. 112 (41: 
 
 New Orleans, 96 U. S. 97 (24: 369); Spencer v. Merchant, 125. 
 
 616); Spencer V. Merchant, 125 U. U. S. 356 (31:767); Bauman y. 
 
 S. 345 (31:763); Paulsen v. Port- Ross, 167 U. S. 548 (42:270). 
 
 17 
 
258 FEDERAL PEOCEDUBE AT LAW. § 293 
 
 to be assessed, either, like other taxes, upon property gener- 
 ally, or only upon the lands benefited by the improvement, is 
 authorized to determine both the amount of the whole tax and 
 the class of lands which will receive the benefit and should 
 therefore bear the burden, although it may, if it sees fit, com- 
 mit the ascertainment of either or both of these facts to the 
 judgment of commissioners. When the determination of the 
 lands to be benefited is intrusted to commissioners, the owners 
 may be entitled to notice and hearing upon the question whether 
 their lands are benefited and how much. But the legislature 
 has the power to determine by the statute imposing the tax, 
 what lands which might be benefited by the improvement are 
 in fact benefited ; and if it does so, its determination is conclu- 
 sive upon the owners and the courts, and the owners have no 
 right to be heard upon the question whether their lands are 
 benefited or not, but only upon the validity of the assessment 
 and its apportionment among the different parcels of the class 
 which the legislature has conclusively determined to be bene- 
 fited. In determining what lands are benefited by the im- 
 provement, the legislature may avail itself of such information 
 as it deems sufficient, either through investigations by its com- 
 mittees or by adopting as its own the estimates or conclusions 
 of others, whether those estimates or conclusions previously had 
 ■or had not any legal sanction. "^^ The legislature has the 
 power to ascertain, deterraine and fix the territorial limits of a 
 local taxing district for itself, without any hearing as to bene- 
 fits, for the purpose of assessing upon the lands within, the dis- 
 trict the cost of a local public improvement. The legislature, 
 when it determines the district itself, is supposed to have made 
 proper inquiry, and to have finally and conclusively determined 
 the fact of benefits to the land included in the district ; and the 
 land owners have no constitutional right to any other or fur- 
 ther hearing upon that question.^" 
 
 § 293. Same — Same — Same — Frontage rule — ^Norwood v. 
 Parker. — ^In Norwood v. Parker,^^ the supreme court of the 
 United States held that the frmitage rule established by the 
 
 36 Spencer v. Merchant, 125 IT. s? Norwood v. Parker, 172 XT. S. 
 
 S. 345 (31:763). 269, 303 (43:443). 
 
 38 Paulsen v. Portland, 149 U. S. 
 30, 41 (37:637). 
 
§ 294 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 259 
 
 laws of the state of Ohio did not furnish due process of law, 
 "upon the ground that the assessment against the plaintiff's 
 abutting property was under a rule which excluded any in- 
 quiry as to special benefits, and the necessary operation of 
 which was, to the extent of the excess of the cost of opening 
 the street in question over any special benefits accruing to the 
 abutting property therefrom, to take private property for pub- 
 lic use without compensation ; ' ' the court, in other words, held 
 in that case, in effect, that the determination by the legislature 
 of the class of lands specially benefited by the improvement is 
 not conclusive upon the courts nor upon the owner, and that 
 such action of the legislature may be reviewed by the courts, 
 upon the ground that it acted unjustly or without appropriate 
 and adequate investigation and reason. That decision, it would 
 seem, is not in harmony with other decisions of the court pre- 
 viously '* and subsequently ^^ rendered upon the question iur 
 Yolved. 
 
 § 294. Same — Same — Taxing non-resident mortgagee's in- 
 terest in the mortgaged land. — A state statute which author- 
 izes the amount of a debt secured by a mortgage on land to be 
 deducted from the mortgagor's interest in the land in assessing 
 it for taxes, and requires the mortgage and the debt to be taxed 
 as real estate against the mortgagee to the extent of his in- 
 terest in the land as represented by the mortgage, does not 
 deprive a mortgagee, who resides in another state and has the 
 mortgage in his possession there, of his property without due 
 process of law. The state may tax real estate mortgaged, as 
 it may all other property within its jurisdiction, at its full 
 value. It may do this, either by taxing the whole to the mort- 
 gagor, or by taxing to the mortgagee the interest therein repre- 
 sented by the mortgage, and to the mortgagor the remaining 
 interest in the land. And the state may, for the purposes of 
 
 38 Spencer v. Merchant, 125 U. 187 U. S. 402 (45:922); Farrell v. 
 :S. 345 (31:763); Paulsen v. Port- West Chicago Park Com'rs, 181 U. 
 land, 149 U. Sj 30, .40 (37:637); S. 404 (45:924); French v. Barber 
 Bauman v. Ross, 167 U. S. 548 Asphalt Paving Co., 181 XJ. S. 324, 
 (42:270); Hagar v. Reclamation 370 (45:879); Detroit v. Parker, 
 District, 111 U. S. 701 (28:569); 181 U. S. 399 (45:917); Tonawan- 
 Parsons v. District of Columbia, da v. Lyon, 181 U. S. 389 (45: 
 170 U. S. 45 (42:943). 908); Cass Farm Co. v. Detroit, 
 
 39 Webster v. Fargo, 181 U. S. 181 U. S. 396 (45:914), 
 S94 (45:912); Shumate v. Heman, 
 
260 FEDERAL PROCEDUKE AT LAW. § 297 
 
 taxation, either treat the mortgage debt as personal property 
 to be taxed like other choses in action, to the creditor at his 
 domicile ; or treat the mortgagee 's interest in the land as real 
 estate, to be taxed to him, like other real property, at its situs.*" 
 
 § 295. Same — Same — Classification for taxation. — ^It is not 
 the purpose of the fourteenth amendment to prevent the states 
 from classifying the subjects of legislation, and making differ- 
 ent regulations as to the property of different individuals or 
 different classes of individuals differently situated; nor to com- 
 pel the states to adopt any iron rule in regard to taxation; 
 nor to prevent the states from classifying property for taxa- 
 tion at different rates and by different modes of assessment. 
 The provisions of the federal constitution are satisfied if all 
 persons similarly situated are treated alike in privileges e'on- 
 f erred or liabilities imposed; it is enough that there is no dis- 
 crimination in favor of one as against another of the same 
 elass.*^ 
 
 § 296. Same— Same — Corporations — Corporations are per- 
 sons within the meaning of the due process clause of the four- 
 teenth amendment to the federal constitution.*^ 
 
 § 297. Same — Sams — State constitution and laws on taxation 
 must be considered together. — In ascertaining and determining 
 the constitutional validity of state tax laws under the due pro- 
 cess clause of the fourteenth amendment, the supreme court of 
 the United States will look to and consider and construe to- 
 gether all the state constitutional and statutory provisions on 
 
 40 Savings & Loan Society v. ^2 Smyth v. Ames, 169 U. S. 466, 
 
 Multnomah County, 169 U. S. 421, 550 (42:879); Santa Clara County 
 
 432 (42:803). v. So. Pac. R. Co., 118 U. S. 394, 
 
 ■n Field v. Barber Asphalt Pav- 396 (30:118); Charlotte, C. & A. 
 
 Ing Co., 194 U. S. 618 (48:1142); Railroad v. Gibbes, 142 TJ. S. 386, 
 
 Groza v. Tieman, 148 TJ. S. 657, 391 (.35:1051); Gulf, Colorado & 
 
 662 (37:599); Bell's Gap R. Co. Santa Fe Ry. Co. v. Ellis, 165 TJ. 
 
 V. Pennsylvania, 134 TJ. S. 232 (33: S. 150, 154 (41:666); Pembina 
 
 892); Home Ins. Co. V. New York, Consol. Silver Mln. & M. Co. v. 
 
 134 U. S. 594 (33:1025); Pacific Pennsylvania, 125 V. S. 181, 189' 
 
 Exp. Co. V. Seibert, 142 TJ. S. 339 (31:650); Missouri P. R. Co. v. 
 
 (35:1035); Kentucky Railroad Maokey, 127 U. S. 205 (32:107); 
 
 Tax Cases, 115 TJ. S. 321 (29:414); Minneapolis & St. L. R. Co. v. 
 
 Magoun V. Illinois Trust & Sav- Beckwith, 129 U. S. 26 (32:588); 
 
 ings Bank, 170 U. S. 283 (42: Covington & L. Turnp. Road Co. v. 
 
 1037); State Railroad Tax Cases, Sandford, 164 U. S. 578 (41:560). 
 92 U. S. 575, 618 (23:663). 
 
§ 298 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 261 
 
 the subject of taxation, and if, when so eohsidered and con- 
 strued, they establish a state system of taxation which is, in its 
 essential features, consistent with due process of law, they will 
 be upheld; and it has accordingly been held that the system 
 of taxation established by the constitution and laws of West 
 Virginia, under which lands liable to taxation are forfeited 
 to the state by reason of the owner not having them placed, 
 or caused to be placed, during five consecutive years, on the 
 proper land books for taxation, and caused himself to be 
 charged with the taxes thereon, and under which, on petition 
 required to be filed by the representatives of the state in the 
 proper circuit court, such lands are sold for the benefit of the 
 school fund, with liberty to the owner, upon due notice of the 
 proceeding, to intervene by petition and secure a redemption of 
 his land from the forfeiture declared by paying the taxes and 
 charges due upon them, is not inconsistent with the due process 
 of law required by the constitution of the United States or the 
 state.*' 
 
 § 298. Same — Taxing power viested in the legislature. — The 
 power of taxation is an attribute of sovereignty ; it is a sover- 
 eign power, inherent in all governments.** In the American 
 system of government, the taxing power is vested exclusively 
 in the legislative department, *° and the judicial department 
 cannot prescribe to the legislature limitations upon its exercise 
 of the power of taxation.*" The several states, each, in the 
 exercise of its reserved powers of municipal sovereignty, act- 
 ing through its legislature, when not restrained by its own 
 or the federal constitution, may, for public purposes, tax all 
 the property within its jurisdiction,*' except the property,** 
 
 *3King V. MuUins, 171 U. S. ings, 4 Pet. 514, 5G3 (7:939); Mc- 
 
 404, 437 (43:214). Culloch v. Maryland, 4 Wheat. 316, 
 
 ** McCulloch. V. Maryland, 4, 428 (4:579). 
 
 Wheat. 316, 428 (4:579). 4? Railroad Co. v. Pennsylvania, 
 
 *5,Spencer v. Merchant, 125 U. 153 U. S. 628, G49 (38:846); Cleve- 
 
 S. 345, 361 (31:763); United land, P. & N. R. Co. v. Pennsyl- 
 
 States V. New Orleans, 98 U. S. vania, 15 Wall. 300, 319 (21:179); 
 
 381, 392 (25:225); Merewether v. North Cent. R. Co. v. Jackson, 7 
 
 Garrett, 102 U. S. -472 (26:197). Wall. 262 (19:88); St. Louis v. 
 
 *6 Spencer v. Merchant, 125 U. Wiggins' Ferry Co., 11 Wall. 423 
 
 S. 345, 361 (31:763); Veazie Bank (20:192); Minot v. Philadelphia, 
 
 V. Fenno, 8 Wall. 533, 548 (19: W. & B. R. Co., 18 Wall. 206 (21: 
 
 482); Providence Banks v. Bill- 888); McCulIoch v. Maryland, 4 
 
262 FEDERAL PROCEDURE AT LAW. § 298 
 
 securities/" and instrumentalities '^° of the federal government. 
 Usually the possession of the legal title to land by the govern- 
 ment determines both the fact and the right of ownership ; but 
 where congress has prescribed the conditions upon which por- 
 tions of the public domain may be alienated, and provided that 
 upon the performance of the conditions a patent from the 
 United States shall issue to the donee or purchaser, and all such 
 conditions are complied with, the land alienated being dis- 
 tinctly defined, it only remaining for the government to issue 
 its patent, and until such patent issues holding the legal title 
 in trust for him, who in the meantime is not excluded from the 
 use of the property, then the donee or purchaser will be treated 
 as the beneficial owner of the land, and the same will be held 
 subject to taxation by the state as his property. This excep- 
 tion to the general doctrine is founded upon the principle that 
 he who has the right to the property and is not excluded from 
 its enjoyment, shall not be permitted to use the legal title o'f 
 the government to avoid his just share of taxation.""^ A tax 
 upon the property of federal agencies does not deprive them 
 of the power to serve the government as they were intended to 
 serve it, nor hinder the efficient exercise of their power, but 
 leaves them free to discharge the duties they have undertaken 
 to perform, and is, therefore, not forbidden by the federal con- 
 stitution.^^ 
 
 Wheat. 316, 428 (4:579); Union Massachusetts, 6 Wall. Gil (18: 
 
 Pacific R. Co. V. Peniston, 18 Wall. 907) ; Weston v. Charleston, 2 Pet. 
 
 5 (21:787). 449 (7:481); Mitchell v. Leaven- 
 
 48 Wisconsin Central R. Co. v. worth County, 91 U. S. 206 (23: 
 
 Price County, 133 U. S. 496, 514 302); New York v. Hoffman, 7 
 
 (33:687); Van Brocklin v. Ten- Wall. 16 (19:57). 
 
 nessee, 117 U. S. 151, 168 (29: ooMcCulloch v. Maryland, 4 
 
 845); McGoon v. Scales, 9 Wall. Wheat. 316 (4:579); Osborn v. 
 
 23 (19:545); Tucker v. Ferguson, Bank of United States, 9 Wheat. 
 
 22 Wall. 527 (22:805); Kansas 738 (6:204); Dobbins v. Erie 
 
 City R. Co. V. Prescott, 16 Wall. County, 16 Pet. 435 (10:1022). 
 
 603 (21:373); Union Pacific R. Co. oi Wisconsin Central R. Co. v. 
 
 V. McShane,'22 Wall. 444 (22:747); Price County, 133 U. S. 496, 514 
 
 Northern Pac. R. Co. V. Rockue, 115 (33:687); Carroll v. Safford, 3 
 
 U. S. 600 (29:477). How. 441, 460 <11:671); Wither- 
 
 *« Society for Savings v. Colt, 6 spoon v. Duncan, 4 Wall. 210, 218 
 
 Wall. 594 (18:897); New York v. (18.339). 
 
 Com'rs of Taxes, 2 Black, 620 (17: =2 Union Pacific R. R. Co. v. 
 
 451) ; Provident Inst, for Saving v. Peniston, 18 Wall. 5, 50 (21:787) ; 
 
§ 301 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 263 
 
 {g) Equal Peotection op the Laws. 
 
 § 299. The states prohibited from denying equal protection 
 of the laws. — ^It is declared in the fourteenth amendment that 
 "no state shall * * * deny to any person within its juris- 
 diction the equal protection of the laws." This is a limitation 
 upon the states; it is an inhibition upon the states; it applies 
 to, and restrains all the iustmmentalities of the state, legisla- 
 tive, executive and judicial, and whoever by virtue of public 
 position under a state government deprives another of the 
 equal protection of the laws, violates the constitutional inhibi- 
 tion, and as he acts in the name of and for the state, and is 
 clothed with its power, his act is that of the state.^^ The inhi- 
 bition does not apply to the acts of private individuals.^ 
 
 § 300. Corporations are persons within the prohibition. — It 
 is well settled that corporations are persons within the meaning 
 of the constitutional prohibition against the denial of the equal 
 protection of the laws ; ^^ but a corporation not created by the 
 laws of a state, and not doing business in that state under such 
 conditions as subject it to the process of the state, and not hav- 
 ing complied with the laws of the state which are made a con- 
 dition of its doing business therein, is not, within the meaning 
 of the inhibition, "within its jurisdiction.'"^" 
 
 § 301. Classification for purposes of legislation. — The sev- 
 eral states, each, respectively, may, in the exercise of its police 
 powers, classify persons, cerporations, businesses, occupations, 
 employments, rights and liabilities, for the purpose of adapting 
 legislation to the special requirements and necessities of the 
 members of the several classes. But the classification must not 
 be arbitrary; it must be reasonable and germane to the pro- 
 posed legislation, and must rest upon some substantial differ- 
 
 Thompson v. Union Pac. R. Co., 9 kins, 118 U. S. 356 (30:220); Gib- 
 Wall. 5T9 (19:792); Western son v. Mississippi, 162 U. S. 579 
 Union Telegraph Co. v. Massachu- (40:1078); Scott v. Neal, 154 U. 
 setts, 125 U. S. 549 (31:7931. S. 34 (38:896). 
 
 53 Chicago, B. & Q. R. Co. v. Chi- 54 Civil Rights Cases, supra, 
 
 cago, 166 U. S. 226, 263 (41:979); ss Ry. Co. v. Ellis, 165 U. S. 150, 
 
 Civil Rights Cases, 109 U. S. 3, 62 168 (41:666) and authorities there 
 
 (27:836); Slaughter-House Cases, cited. 
 
 16 Wall. 36 (21:394); Ex parte se Blake v. McClung, 172 U. S. 
 
 Virginia, 100 U. S. 339, 346 (25: 658 (43:432); Fire Association of 
 
 676) ; Neal v. Delaware, 103 U. S. Philadelphia v. New York, 119 U. 
 
 370 (26:567); Yick Wo. v. Hop- S. 110-129 (30:34,2). 
 
264 FEDERAL PKOCEDUEE AT LAW. § 303 
 
 enee or distinction which has a just and reasonable relation to 
 the object sought to be accomplished by the legislatures." 
 
 § 302. Same — Rules stated by supreme court of Wisconsin. — 
 The rules upon this subject of classification have been stated 
 by the supreme court of Wisconsin as follows : 
 
 "Legislative discretion to classify persons for the purposes 
 of legislation is substantially the same under the fourteenth 
 amendment of the federal constitution as under the state con- 
 stitutional provision prohibiting special legislation. The rules 
 on the subject which generally prevail, and which have re- 
 ceived the sanction of this court, are as follows: (1) AU clas- 
 sification must be based upon substantial distinctions which 
 make one class really different from another. (2) The; classifi- 
 cation adopted must be germane to the purposes of the law. 
 (3) The classification must not be based upon existing con- 
 ditions only; it must not be so constituted as to prevent addi- 
 tions to the number included within the class. (4) To what- 
 ever class a law may apply, it must apply equally to each mean- 
 ber thereof. Whether any particular classification made by the 
 legislature satisfies those requisites is primarily a legislative 
 question. The field covered by its discretionary power in the 
 matter is very broad. It is, of course, not above judicial con- 
 trol, but it is safe from restraint so long as any reasonable 
 ground can be discovered to support it. The courts can apply 
 no test to the matter except the constitutional test. That of 
 the mere wisdom of the measure is exclusively for legislative 
 consideration." ^* 
 
 § 303. Same — State statute abolishing common law fellow- 
 servant rule in personal injury cases. — A state statute which 
 provides that every railroad company organized or doing busi- 
 ness in the state shall be liable for all damages done to any em- 
 
 57 Missouri Pac E. Co. v. Mackey, Co. v. Ellis, 165 U. S. 150 (41: G66) ; 
 
 127 XJ. S. 205 (32:107); Minneapo- Missouri Pac. Ry. Co. v. Humes, 
 
 lis & St. L. R. Co. V. Herrick, 127 115 TJ. S. 512, 524 (29:463); Car- 
 
 U. S. 210 (32:109); Chicago K. & gill Co. v. Minnesota Railroad & 
 
 W. R. Co. V. Pontius, 157 TJ. S. 209 Warehouse Comm., 180 TJ. S. 452 
 
 (39:675); TuUis v. Lake Erie & (45:619). 
 
 W. R. Co., 175 TJ. S. 348 (44:192); es Julien v. Model Building, L. 
 
 St. Louis & S. F. R. Co. v. Mathews, & I. Ass'n, (Wis.) 61 L. R. A. 668; 
 
 165 TJ. S. 1 (41:611); Atchison, Johnson v. Milwaukee, 88 Wis. 383, 
 
 Topeka & S. F. R. Co. v. Mat- 60 N. W. 270. 
 thews, 174 U. S. 69 (43:909); Ry. 
 
§ 304 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 265 
 
 ploye of such company in consequence of any negligence of its 
 agents, or by any mismanagement of its engineers or other em- 
 ployes, to any person sustaining such damage, does not deprive 
 such companies of the equal protection of the laws within the 
 meaning of the fourteenth amendment to the federal constitu- 
 tion. The hazardous character of the business of operating a 
 railway calls for special legislation with respect to railroad cor- 
 porations, having for its object the protection of their employes, 
 as well as the safety of the public. The business of other cor- 
 porations is not subject to similar dangers to their employes, 
 and, therefore, no objections 'can be made to such legislation 
 on the ground of its making an, unjust discrimination.^' And 
 the mere fact that the regular employment of the person in- 
 jured was that of a bridge builder does not take him out of 
 the operation of the statute, if the injury happened to him 
 while he was engaged in labor directly coimected with the 
 operation of the railroad.^" 
 
 § 304. Same — State statute making railroad companies ab- 
 solutely responsible for damages by fire from their engines. — 
 Railroad companies are not deprived of the equal protection of 
 the laws, within the meaning of the fourteenth amendment, by 
 a state statute, applicable alike to those organiz^ both before 
 and after its enactment, providing that every railroad corpora- 
 tion owning or operating a railroad in the state shall be respon- 
 sible in damages for property of any person injured or des- 
 troyed by fire communicated by its locomotive engines, and 
 giving such company an insurable interest in all the property 
 along its route, and authorizing it to insure such property for 
 its protection against such damage."^ The ratio decidendi of 
 the cases upholding such legislation is that: The motives 
 which have induced, and the reasons which justify such leg- 
 islation may be summed up thus: Fire, while necessary for 
 many uses of civilized man, is a dangerous, volatile, and de- 
 es Missouri Pacific R. Co. V. so Chicago, K. & W. R. Co. v. 
 Mackey, 127 U. S. 205 (32:107); Pontius, 157 U. S. 209, 212 (39: 
 Chicago, K. & W. R. Co. v. Pontius, 675) . 
 
 157 U. S. 209, 212 (39:675); Min- ei St. Louis & S. F. R. Co. v. 
 
 neapolis & St. L. R. Co. v. Herrick, Matthews, 165 U. S. 1, 27 (41:611) ; 
 127 U. S. 210, 212 (32:109); Tullis Atchison, Topeka & S. F. R. Co. v. 
 V. Lake Erie & "W. R. Co., 175 U. Matthews, 174 U. S. 96 (43:909). 
 S. 348 (44:192). 
 
266 FEDEEAL PROCEDURE AT LAW. § 305" 
 
 struetive elejnent, which often escapes in the form of sparks,, 
 capable of being wafted afar through the air, and of des- 
 troying any combustible property on which it may fall; and 
 which, when it has once gained headway, can hardly be arrested 
 or controlled. Railroad corporations, in order the better to- 
 carry on the public object of their creation, the sure and prompt 
 transportation of passengers and goods, have been authorized 
 by statute to use locomotive engines propelled by steam gener- 
 ated by fires lighted upon their engines. It is within the au- 
 thority of the legislature to make adequate provision for pro- 
 tecting the property of others against loss or injury by sparks- 
 from such engines. The right of the citizen not to have his 
 propertj' burned without compensation is nO less to be regarded 
 than the right of the corporation to set it on fire. To require 
 the utmost care and diligence of the railroad eorporatipns in. 
 taking precautions against the escape of fire from their engines, 
 might not afford sufficient protection to the owners of property 
 in the neighborhood of the railroads. When both parties are 
 equally faultless, the legislature may properly consider it to- 
 be just that the duty of insuring private property against loss 
 or injury caused by the use of dangerous instruments should 
 rest upon the railroad company which employs the instruments; 
 and creates the peril for its own profit, rather than upon thai- 
 owner of the property, who has no control over or interest in 
 those instruments. Such a statute is not a penal one, imposing 
 a punishment for a violation of law; but it is purely remedial, 
 making the party doing a lawful act for its own profit liable 
 in damages to the innocent party injured thereby, and giving 
 to that party the whole damages measured by the injury suf- 
 fered."^ 
 
 § 305. Same — State statute making proof of fire by railroad 
 engine prima facie evidence of negligence — Attorney's fees. — 
 Railroad companies are not deprived of the equal protection 
 of the laws by a state statute which provides that, in all ac- 
 tions against any railway company organized or doing business 
 in the state, for damages by fire caused by the operating of the- 
 railroad, proof by the plaintiff of the fact that the fire com- 
 es St. Louis & S. F. R. Co. v. custom of the realm, to keep his 
 Matthews, 165 U. S. 1, 27 (41:011). Are safe so that It should not In- 
 "At common law, every man ap- jure his neighbors; and to have 
 pears to have been obliged, by the been liable to an action, if a fire- 
 
§ 308 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 267 
 
 plained of was caused by operating the railroad and the amount 
 of damages sustained by it shall be prima facie evidence of neg- 
 ligence on the part of the railroad company, and allowing the 
 plaintiff a reasonable attorney's fee, in case of recovery, to be- 
 come a part of the judgment."^ 
 
 § 308. Same — When statute allowing attorney's fee is pen- 
 alty for failure to pay debt. — A state statute, enacted not in 
 the exercise of the police power, allowing an attorney's fee to- 
 the plaintiffs in actions against railroad corporations on claims 
 not exceeding in amount fifty dollars, for personal services ren- 
 dered or labor done, or for damages, or for overcharges on 
 freight, or for stock killed or injured, is simply a statute im- 
 posing a penalty on railroad corporations for a failure to pay 
 the class of debts named, and is not one to enforce compliance 
 with any police regulation, and is violative of the fourteenth 
 amendment.^* 
 
 § 307. Same — State statute requiring railroad companies to 
 fence track — Double damages for killing stock. — A state stat- 
 ute which requires all railroad corporations formed or operat- 
 ing a railroad in the state to fence their railroads where the 
 same passes through, along, or adjoining inclosed or cultivated 
 fields or uninclosed lands with gates, and to construct and 
 maintain cattle guards, and in eas& of failure to do so making 
 such corporations liable in double the amount of all damages; 
 done by their agents, engines, or ears, to live stock, or damage 
 done by live stock escaping from or coming upon such lands, 
 fields or inclosures, does not- deny such railroad corporations- 
 the equal protection of the laws.''" 
 
 § 308. Same — Regulation of warehouses and elevators. — A 
 state statute which declares that, all elevators and warehouses 
 in which grain is received, stored, shipped or handled, and 
 which are situated on the right of way of any railroad, depot 
 
 lighted in his own house, or upon os Atchison, Topelta & S. F. R 
 
 his land, by the act of himself or Co. v. Matthews, 174 U. S. 96, 125 
 
 his servants or guests, burned the (43:909). 
 
 house or property of his neighbor, e* Ry. Co. v. Ellis, 174 V. S. 96,. 
 
 unless its spreading to his neigh- 125 (43:909). 
 
 bor's property was caused by a 65 Missouri Pacific Ry. Co. v. 
 
 violent tempest or other unavoid- Humes, 115 U. S. 512 (29:403); 
 
 able accident which he could not Minneapolis and St. Louis R. Co. 
 
 have foreseen." St. Louis & S. P. v. Beckwith, 129 U. S. 26 (32:585). 
 
 R. Co. v. Matthews, supra. 
 
■268 FEDERAL PROCEDURE AT LAW. § 310 
 
 grounds, or any lands acquired or reserved by any railroad 
 company in the state, to be used in connection with its line of 
 railway at any station or siding in the state, other than at ter- 
 minal points, shall be, public elevators, and shall be under, the 
 supervision and subject to the inspection of the railroad and 
 warehouse commission of the state, and known and designated 
 as public country elevators or as country ware houses, and re- 
 quiring the owners thereof to obtain a license from the state 
 before receiving, shipping, storing or handling any grain in 
 such elevators or warehouses, but not requiring a license of the 
 owners of elevators and warehouses differently situated, does 
 not deprive the owners so required to procure a license of any 
 rights secured to them by the fourteenth amendment. Such 
 a, statute is not invalid by reason of its not applying to persons 
 or corporations who own or operate elevators not situated on 
 the right of way of the railroad company.*" 
 
 § 309. Same — Life and health insurance companies — State 
 statute imposing damages and attorney's fees for failure to pay 
 policy when due. — The placing of life and health insurance 
 companies in a different class from fire, marine and inland in- 
 surance companies, and in a different class from mutual bene- 
 fit and relief associations doing business through lodges and 
 benevolent associations, is not an arbitrary classification, but 
 rests on sufficient reason; and the Texas statute, authorizing 
 the recovery from life and health insurance companies, in 
 addition to the amount of the loss or policy, twelve per cent 
 damages on the amount of such loss, together with reasonable 
 attorney's fees for the prosecution and collection of the loss, 
 in all cases where the company liable therefor shall fail to pay 
 the loss within the time specified in the policy, does not violate 
 the fourteenth amendment."^ 
 
 § 310. Same — Limiting hours of labor in mines. — The police 
 power extends to the protection and preservation of the health 
 of persons engaged in noxious employments, and a state stat- 
 ute limiting the employment of working men in all under- 
 ground mines, and smelters and all other institutions for the 
 
 66 w. W. Carglll Co. v. Minne- 87 Fidelity Mutual Life Associa- 
 
 sota ex rel. Railroad & Warehouse tion v. Mettler, 185 U. S. 308, 336 
 Com., 180 U. S. 452, 470 (45:G19). (46:922); Iowa Life InsuranceCo. 
 
 V. Lewis, — U. S. — (48:—). 
 
§ 312 LIMITATIONS IMPOSED BY PEDEEAL CONSTITUTION. 269 
 
 reduction or refining of ores or metals, to eight hours per day, 
 except in cases of emergency where life or property is in im- 
 iaent danger, does not deny to such laborers or their employers 
 the equal protection of the laws, nor is such a statute an unjust 
 or oppressive interference with the right of contract.^' 
 
 § 311. Same — ^Illinois trust act. — The ninth section of the 
 Illinois Trust Act of June 20, 1903, which exempts from the 
 provisions and operations of the act ' ' agricultural products and 
 live stock while in the hands of the producer or raiser, ' ' denies 
 the equal protection of the laws to all persons not embraced 
 in the exemption, and renders the entire act unconstitutional, 
 null and void. The decision holding the statute void was placed 
 upon the ground that, under its operation, all persons except 
 producers of agricultural commodities and raisers of live stock, 
 who combine their capital, skill or acts for any of the purposes 
 named in the act, may be punished as criminals, whilst agricul- 
 turalists, and live stock raisers, in respect of their products or 
 live stock on hand, are exempted from the operation of the stat- 
 ute, and may combine and do that which, if done by others, 
 would be a crime against the state, and the ninth section of the 
 act could not be disregarded and the remainder upheld without 
 producing results not contemplated or desired by the legisla- 
 ture; and, therefore, the statute was, by the supreme court, re- 
 garded as an entirety, and in that view adjudged to be unconsti- 
 tutional as denying the equal protection of the laws to those 
 within its jurisdiction who were not embraced ' within excep- 
 tions contained in the ninth section."" 
 
 § 312. Taxation and the equal protection of the laws.^-Per- 
 fect equality and perfect uniformity of taxation as regards 
 individuals or corporations, or the different classes of property 
 subject to taxation, are not attainable. It may be admitted 
 that the systeim which most nearly attains perfect equality and 
 uniformity is the best; but the most complete system which 
 can be devised, when it comes to be applied to the immense 
 variety of subjects which it necessarily embraces, must be im- 
 perfect, and necessarily produces inequalities in its operation.'* 
 
 The supreme court of the United States, while not attempt- 
 
 68 Holden v. Hardy, 169 U. S. to state Railroad Tax Cases, 92 
 366, 398 (42:780). U. S. 575, 618 (23:663); German 
 
 69 Connolly v. Union Sewer Pipe Nat. Bank v. Kimball, 103 U. S. 
 Co., 184 U. S. 540, 571 (46:679). 732, 735 (26:469). 
 
270 FEDERAL PROCEDURE AT LAW. § 312 
 
 ing to prescribe any specific rule as to the reach of the "equal 
 protection" clause of the fourteenth amendment, in regard to 
 the state's power of taxation, has formulated a general doe- 
 trine, expressed by the court as follows : 
 
 "The provision in the fourteenth amendment, that no state 
 shall deny to any person within its jurisdiction the equal pro- 
 tection of the laws, was not intended, to prevent a stata from 
 adjusting its system of taxation in all proper and reasonable 
 ways. It may, if it chooses, exempt certain classes of property 
 from any taxation at all, such as churches, libraries, and the 
 property of charitable institutions. It may impose different 
 specific taxes upon different trades and professions, and may 
 vary the rates of excise upon various products ; it may tax real 
 estate and personal property in a different manner; it may tax 
 visible property only, and not tax securities for payment of 
 monej'; it may allow deductions for indebtedness, or not allow 
 them. All such regulations, and those of like character, so 
 long as they proceed within reasonable, limits and general 
 usage, are within the discretion of the state legislature, or the 
 people of the state in framing their constitution. But clear 
 and hostile discriminations against particular persons and 
 classes, especially such as are of an unusual character, un- 
 known to the practice of our governments, might be obnoxious 
 to the constitutional prohibition. It would, however, be im- 
 practicable and unwise to. attempt to lay down any general 
 rule or definition on the subject, that would include all cases. 
 They must be decided as they arise. We think that we are 
 safe in saying that the fourteenth amendment was not intended 
 to compel the states to adopt an iron rule of equal taxation. 
 If that were its proper construction, it would not only super- 
 sede all those constitutional provisions and laws of some of the 
 states, whose object is to secure equality of taxation, and 
 which are usually accompanied with qualifications deemed ma- 
 terial; but it would render nugatory those discriminations 
 which the best interests of society require, which are necessary 
 for the encouragement of needed and useful industries, and the 
 discouragement of intemperance and vice, and which every 
 state, in one form or another, deems it expedient to adopt." ''• 
 
 71 Bell's Gap Railroad Co. v. erlcan Sugar Refining Co. v. Louis- 
 Commonwealth of Pennsylvania, iana, 179 TJ. S. 89, 95 (45:102). 
 134 U. S. 232, 240 (33:893); Am- 
 
'§ 313 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 271 
 
 The constitution of the state of Louisiana which classifies the 
 refiners of sugar for the purpose of taxation into those who 
 refine the products of their' own plantations, and those who 
 €(ngage in a general refining business, and refine sugars pur- 
 chased by themselves or put in their hands for that purpose, 
 and imposes a tax on the latter only, does not deprive the re- 
 finers so taxed of the equal protection of the laws within the 
 meaning of the fourteenth amendment/^ 
 
 § 313. Same — The unit rule in the taxation of interstate com- 
 merce lines. — Although the transportation of thei subjects of 
 interstate commerce, or the receipts received therefrom, or the 
 occupation or business of carrying it on, cannot be directly 
 subjected to state taxation, yet property belonging to corpora- 
 tions or companies engaged in such commerce may be taxed 
 by the state ; and whatever the particular form of the exaction, 
 if it is essentially only a property tax, it will not be considered 
 as falling within the implied constitutional inhibition against 
 state taxation of interstate commerce. Corporations and com- 
 panies engaged in interstate commerce should bear their 
 proper proportion of the burdens of the governments under 
 whose protection they conduct their operations, and taxation 
 on property, collected by the ordinary means, does not aft'ect 
 interstate commerce otherwise than incidentally, as all business 
 is affected by the necessity of contributing to the support of 
 the government. 
 
 In the taxation, by the state, of the property of railroad, 
 telegraph and sleeping-car companies, engaged in interstate 
 commerce, the property of such companies in the several states 
 through which their lines or business extend may be valued 
 as a unit for the purposes of taxation, taking into considera- 
 tion the uses to which it is devoted and all the elements making 
 up aggregate value, and a proportion of the whole fairly and 
 properly ascertained may be taxed by the particular state, 
 without violating any federal restrictions." 
 
 72 American Sugar Refining Co. (31:790); Massachusetts v. West- 
 V. Louisiana, 179 U. S. 89, 95 em Union Tel. Co., 141 U. S. 40 
 (45:102). (35:628); Maine v. Grand Trunk 
 
 73 Adams Express Co. t. Ohio R. Co., 142 U. S. 217 (35:994); 
 State Auditor, 165 U. S. 194, 255 Pittsburg C. C. & St. L. R. Co., v. 
 (41:683); Western Union Tel. Co. Baclms, 154 U. S. 421 (38:1031); 
 V. Massachusetts, 125 U. S. 530 Cleveland, C. C. and St. L. R. Co. 
 
272 FEDERAb PROCEDURE AT LAW. § 315 
 
 § 314. Same — Same — Method of assessment. — A state ad val- 
 orem tax, assessed and levied upon the property within its 
 limits, of a foreign telegraph corporation, owning and operat- 
 ing an interstate telegraph line, the value of which was ascer- 
 tained and determined by the state board of equalization, upon 
 due notice and a regular hearing, and upon which the board 
 took into consideration the value and cost of the construction 
 and equipment of the entire telegraph line, and its location, 
 and its traffic and business, and the marliet and par value of its 
 stock and bonds, and its gross receipts and net earnings, and 
 its franchise and the value thereof, and a consideration of the 
 line as an entirety and a system, located partly in that state 
 and partly in other states, and then estimating the value of 
 that part of the line located in the state in the ratio or propor- 
 tion which it bears to the length of the entire line or system, 
 is a valid and constitutional exercise of the taxing power, al- 
 though the telegraph company was engaged in interstate com- . 
 merce, and had accepted the permissive privilege granted by 
 the act of c-ongress to such companies to run the lines of their 
 wires over and along the military and post roads of the United 
 States.''* 
 
 § 315. Same — Power of the state to fix the situs of the transi- 
 tory property of railroads for purposes of taxation. — The prop- 
 erty of a railroad company for purposes of taxation consists 
 of its realtj', its local personalty, its rolling stock, its choses 
 in action, and its franchise. The franchise is the privilege con- 
 ferred by the charter of incorporation, namely, the right to 
 exercise all the powers granted in the mode prescribed for 
 the purpose of profit. The franchise is a unit, its exercise 
 
 V. Backus, 154 U. S. 439 (38:1041) ; states, a tax upon the income or 
 
 Western Union Teleg. Co. v. Tag- franchise of the road is properly 
 
 gart, 163 U. S. 1 (41: 40); Pull- apportioned by taking the whole 
 
 man's Palace Car Co. v. Pennsyl- income or value of the franchise, 
 
 vanla, 141 U. S. 18 (35:613) ; R. R. and the length of the road within 
 
 Tax cases, 18 Wall. 208 (21:888); each state, as the basis of taxation. 
 
 Erie R. R. Co. v. Pennsylvania, 21 State Railroad Tax Cases, 92 U. S. 
 
 Wall. 492 (22:595); State Rail- 275,618 (23:663), and authorities 
 
 road Tax cases, 92 U. S. 275, 618 there cited. 
 
 (23:633^; Western Union Teleg. '* Western Union Telegraph Co. 
 
 Co. V. Missouri, 190 U. S. 412, 427 v. Missouri, 190 U. S. 412, 427 
 
 (47:1116). Where the road of a (47:1116). 
 corporation runs through different 
 
§ 315 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 273 
 
 not being confined to any one county, but extending to all 
 counties traversed by the railroad; and the principal valu© 
 of the franchise is the right to charge and take tolls and com- 
 pensation for the carriage and transportation of freight ani 
 passengers. According to the rules and principles of the com- 
 mon law, the- transient and unlocated property of a rail- 
 road company, its rolling stock, choses ia action, and personal 
 property have their situs at the domicile or place of busi- 
 ness of the company; but the legislature of the state may, by 
 law, change the situs of such property for the purposes of tax- 
 ation and other purposes. And a railroad company, whose 
 line of road is wholly within one state, is not deprived of the 
 equal protection of the laws by a statute of that state which 
 apportions the rolling stock and other unlocated personal prop- 
 erty of the company for purposes of taxation among the sev- 
 eral counties traversed by the railroad, while, under the gen- 
 eral laws of the state, the personal property, whether tangible 
 or intangible, of all other persons and companies is taxable in 
 the counties in which they reside or are domiciliated.'''' 
 
 75 Columbus Southern Railway 
 Co. v. Wright, 151 V. S. 470, 483 
 ( 38 : 238 ) . The case cited involved 
 the constitutional validity of a 
 statute of the state of Georgia, ap- 
 portioning the transitory and un- 
 located property of the railroad 
 company among the counties tra- 
 versed by the road, for the pur- 
 poses of taxation; and in deciding 
 the case, the court, speaking by 
 Mr. Justice Jackson, said: 
 
 "The whole complaint made by 
 the plaintiff in error is that it had 
 a constitutional right to have its 
 rolling stock, and other unlocated 
 personal property, taxed in the 
 county of Muscogee where it had 
 its principal office, and to give 
 such property a different situs, un- 
 der the act complained of, was an 
 Unjust discrimination, and violated 
 its constitutional rights. This 
 proposition cannot be entertained 
 for a moment, for the reason al- 
 
 18 
 
 ready stated, that It is clearly 
 within the province of the legisla- 
 ture of Georgia to give such per- 
 sonal property a different situs, 
 for purposes of taxation, from that 
 of the company's principal office. 
 The act in question having appor- 
 tioned the transitory and unlo- 
 cated property of the railroad com- 
 pany among the several counties 
 through which the road extends 
 for the purpose of taxation, and 
 having subjected such property to- 
 the same rate of taxation imposed 
 upon all other property in the re- 
 spective counties, the fact that the- 
 rate of taxation varied in the diff- 
 erent counties, according to their 
 respective wants and necessities, 
 involved no discrimination against, 
 the railroad company. The state 
 having the undoubted authority- 
 to fix the situs of such property, 
 and having lawfully distributed 
 it proportionately between the sev- 
 
274 FEDERAL PROCEDURE AT LAW. § 316 
 
 § 316, Same — ^Power of the state to tax railroad companies 
 to pay salaries and expense of railroad commission. — Railroad 
 companies are not denied the equal protection of the laws by 
 a state statute which prescribes numerous provisions for the 
 regulation and government of railroads in the state, authorizes 
 the governor to appoint three railroad commissioners charged 
 with the duty of enforcing its provisions, and directs that the 
 entire expenses of the railroad commission, including all sal- 
 aries and expenses of every kind, shall be borne by the several 
 corporations owning or operating railroads within the state ac- 
 cording to their gross income proportioned to the number of 
 miles of railroad in the state, to be apportioned by the comp- 
 troller general of the state, who on or before the first day of 
 October in each and every year shall assess upon each and 
 every such corporation its just proportion of such expenses in 
 proportion to its gross income for the current year ending on 
 the thirtieth day of June next preceding that on which the as- 
 sessment is made, and that the assessment shall be charged up 
 against such corporations, respectively, and shall be collected 
 by the several county treasurers in the state in the manner pro- 
 vided by law for the collection of taxes from such corporations, 
 and paid by the county treasurers, as collected, into the treasury 
 of the state in like manner as other taxes collected by them for 
 
 eral counties traversed by the 386 (35:1051); Nashville C. & St. 
 
 road, it thereby became subject L. R. Co. v. Franklin County, 12 ' 
 
 to the same rate of taxation as Lea, 522, 539; Gallatin v. Alexan- 
 
 other property in the respective der, 10 Lea, 475; Nashville v. 
 
 counties. This involved no in- Thomas, 5 Coldw. 607; McLaugh- 
 
 equality, and violated no provision lin v. Chadwell, 7 Heisk. 389; Bed- 
 
 of either the state or federal con- ford v. Nashville, 7 Heisk. 409; 
 
 stitution. It certainly did not in- State v. Severance, 55 Mo. 379, 
 
 volve a failure to extend to the 388; Pittsburg C. C. & St. L. R .Co. 
 
 plaintiff In error the equal pro- v. Backus, 154 XJ. S. 421 (38:1031); 
 
 tection of the laws." Columbus Minot v. Philadelphia W. & B. R. 
 
 Southern R. Co. v. Wright, supra. Co., 18 Wall. 206 (21:888); Erie 
 
 On this general subject, see the R. Co. v. Pennsylvania, 21 Wall, 
 
 following cases: State Railroad 492 (22:595); Western Union Tel. 
 
 Tax Cases, 92 U. S. 575 (23:663); Co. v. Atty. Genl. 125 U. S. 530 
 
 Kentucky Railroad Tax Cases, 115 (31:790) ; Pullman Palace Car Co. 
 
 U. S. 321, 339 (29:414); Minne- v. Pennsylvania, 141 U. S. 18 
 
 apolis & St. L. R. Co. v. Beckwith, (35:613); Maine v. Grand Trunk 
 
 129 U. S. 26 (32:588); Charlotte R. Co., 142 U. S. 217 (35:994). 
 C & A. R. Co. V. Gibbes, 142 U. S. 
 
§ 316 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 275 
 
 the state; although the property of railroad companies in the 
 state is subjected by general law to the same tax as similar 
 property of individuals, in proportion to its value, and like con- 
 ditions of uniformity and equality, in its assessment are imposed, 
 and no tax is levied upon corporations other than railroad cor- 
 porations, to specifically meet an expenditure for the salaries 
 of state officers, ^° 
 
 The case cited arose under the railroad commission law of 
 South Carolina, and the court, in upholding the tax imposed on 
 the railroad companies for the payment of the expenses of the 
 commission, after reciting the provisions of the statute as to 
 the duties of the commission, stated the ratio decidendi of the 
 case as follows : 
 
 "It is evident, from these and many other provisions that 
 might be stated, that the duties of the railroad commissioners, 
 when properly discharged, must be, in the highest degree bene- 
 ficial to the public, securing faithful service on the part of the 
 railroad companies, and safety, convenience, and comfort in the 
 operation of their roads. That the state has the power to pre- 
 scribe the regulations mentioned there can be no question. 
 Though railroad corporations are private corporations, as dis- 
 tinguished from those created for municipal and governmental 
 purposes, their uses are public. They are formed for the con- 
 venience of the public in the transportation of persons and mer- 
 chandise, and are invested for that purpose with special privi- 
 leges. They are allowed to exercise the states' right of emi- 
 nent domain, that they may appropriate for their uses the nec- 
 essary property of others, upon paying just compensation 
 therefor, a right which can only be exercised for public pur- 
 poses. And they assume, by the acceptance of their charters, 
 the obligations to transport all persons and merchandise upon 
 like conditions and at reasonable rates; and they are author- 
 ized to charge reasonable compensation for the services they 
 thus perform. Being the recipients of special privileges from 
 the state, to be exercised in the interest of the public, and as- 
 suming the obligations thus mentioned, their business is deemed 
 afl^ected with a public use, and to the extent of that use is 
 subject to legislative regulation. That regulation may extend 
 to all measures deemed essential not merely to secure the safety 
 
 76 Charlotte C. & A. R. Co. v. Gibbes, 142 U. S. 386, 395 (35:1051). 
 
276 FEDERAL PEOCEDUBE AT LAW, § 316 
 
 of passengers and freight, but to promote tlie convenience of 
 the public in the transaction of business with them, and to pre- 
 vent abuses by extortionate charges and unjust discrimination. 
 It may embrace a general supervision of the operation of their 
 roads, which may be exercised by direct legislation command- 
 ing or forbidding, under severe penalties, the doing or omis- 
 sion of particular acts, or it may be exercised through com- 
 missioners specially appointed for that purpose. The mode or 
 manner of regulation is a matter of legislative discretion. 
 When exercised through commissioners, their services are for 
 the benefit of the railroad corporations as well as of the public. 
 Both are served by the required supervision over the roads and 
 means of transportation, and there would seem to be no sound 
 reason why the compensation of the commissioners in such 
 cases should not be met by -the corporations, the operation of 
 whose roads and the exercise of whose franchises are super- 
 vised. In exacting this, there is no encroachment upon the 
 fourteenth amendment. Requiring that the burden of a serv- 
 ice deemed essential to the public, in consequence of the exist- 
 ence of the corporations and the exercise of privileges obtained 
 at their request, should be borne by the corporations in rela- 
 tion to whom the service is required, and to whom it is useful,, 
 is neither denying to the corporations the equal protection of 
 the laws, nor making any unjust discrimination against them. 
 All railroad corporations in the state are treated alike in this, 
 respect. The necessity of supervision extends to them all, and 
 for that supervision the like proportional charge is made 
 against all. There is no occasion for similar regulations for 
 the government of other than railroad corporations, and there- 
 fore no charge is made against them for the expenses and sal- 
 aries of the commissioners. The rule of equality is not invaded 
 where all corporations of the same kind are subjected to like 
 charges for similar services, though no charge is made at all 
 against other corporations. There is no charge when there is 
 no service rendered. The legislative and constitutional provi- 
 sion of the state, that taxation of property shall be equal and 
 uniform and in proportion to its value, is not violated by ex- 
 acting a contribution according to their gross income in pro- 
 portion to the number of miles of railroad operated in the state 
 to meet the special service required. ' ' ^^ 
 
 T7 Charlotte C. & A. R. Co. v. Gibbes, supra. 
 
§ 318 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 277 
 
 § 317. Same — Classification. — The fourteenth amendment 
 does not prevent the classification of property for taxation, sub- 
 jecting one kind of property to one rate of taxation and an- 
 other kind of property to a different rate, and distinguishing 
 between franchises, licenses and privileges, and visible and tan- 
 gible property, and between real and personal property. Nor 
 does the amendment prohibit special legislation. The greater 
 part of all legislation is special, either in the extent to which it 
 operates, or the objects sought to be obtained by it. And 
 when such legislation applies to artificial bodies, it is not open 
 to objection if all such bodies are treated alike under similar 
 circumstances and conditions, in respect to the privileges con- 
 ferred upon them and the liabilities to which they are sub- 
 jected.'* Diversity of taxation, both with respect to the amount 
 imposed and the various species of property selected either for 
 bearing its burdens or being exempt from them, is not incon- 
 sistent with a perfect uniformity and equality of taxation in 
 the proper sense of those terms; and a system which imposes 
 the same tax upon every species of property, irrespective of its 
 nature or condition or class, will be destructive of the principle 
 of uniformity and equality and of a just adaptation of prop- 
 erty to its burdens." 
 
 § 318. Power of the state to impose conditions of admission 
 upon foreign corporations. — Corporations are not citizens with- 
 in the meaning of the constitutional provision, declaring that 
 "the citizens of each state shall be entitled to all privileges and 
 immunities of citizens in the several states;" and the provision 
 of the fourteenth amendment, declaring that no state shall 
 "deny to any person within its jurisdiction the equal protec- 
 tion of the laws, ' ' does not prohibit a state from imposing such 
 conditions upon foreign corporations as it may choose, as a 
 condition of their admission within its limits.*" The only limi- 
 ts Home Ins. Co. v. People of the Pennsylvania, 125 TJ. S. 81 (31: 
 State of New York, 134 TJ. S. 594, 650) ; Fire Association of Phlla- 
 607 (33:1025). • delphia v. New York, 119 U. S. 
 
 T9 Pacific Express Co. V. Seibert, 110, 129 (30:342); Paul v. Vir- 
 142 U. S. 339, 365 (35:1035). ginia, 8 Wall. 168 (19:357); Du- 
 
 80 Norfolk & Western R. Co. v. cat v. Chicago, 10 Wall. 410 (19: 
 Commonwealth of Pennsylvania, 972) ; Liverpool Ins. Co. v. Massa- 
 136 U. S. 114, 121 (34:394); Pern- chusetts, 10 Wall. 566 (19:1029); 
 bina Con. Silver Mining, etc. Co. v. Doyle v. Continental Ins. Co., 94 
 
278 FEDERAL PBOCEDUEE AT LAW. § 319 
 
 tation iipon the power of the state to exclude a foreign corpora- 
 tion from doing business within its limits, or hiring ofiSees for 
 that purpose, or to exact conditions for allowing such corpora- 
 tion to do business or hire offices within its limits, arise where 
 the corporation is in the employ of the federal government, or 
 where its business is strictly commerce, interstate or foreign. 
 It is well settled that a state cannot, under the guise of a li- 
 cense tax, exclude from its jurisdiction a foreign corporation 
 engaged in interstate or foreign commerce, or impose any bur- 
 dens upon such commerce within its limits.*^ 
 
 § 319. Civil rights — Exclusion of negroes from grand and 
 petit juries. — Whenever by any action of the state, whether 
 through its legislature, through its courts, or through its execu- 
 tive or administrative officers, all persons of the African race 
 are excluded, solely because of their race or color, from serving 
 as grand or petit jurors in the criminal prosecution of a person 
 of the African race, the equal protection of the laws is denied 
 to him, contrary to the fourteenth amendment of the constitution 
 of the United States.^^ But no person charged with a crime 
 involving life or liberty is entitled, by virtue of the eonstitu-^ 
 tion of the United States, to have his race represented upon 
 the grand jury that may indict him, or upon the petit jury that 
 may try him.^^ A person of the African race charged with a 
 crime involving his life or liberty is not denied the equal pro- 
 tection of the laws by a state constitution and laws which do 
 not in terms discriminate against the colored race, but do grant 
 a discretionary power to administrative officers which may be 
 used by them to abridge the right of colored persons to serve 
 
 U. S. 535 (24:148); Cooper Mnfg. 82 Carter v. Texas, 177 U. S. 442, 
 
 Co. V. Ferguson, 113 TJ. S. 727 449 (44:839); Strauder v. West 
 
 (28:1137). Virginia, 100 U. S. 303 (25:664); 
 
 81 Pembina Con. Silver Mining, Neal v. Delaware, 103 U. S. 730, 
 
 etc. Co. V. Pennsylvania, 125 U. 739 (26:576); Gibson v. Missis- 
 
 S. 181, 190 (31:650); McCall v. sippi, 162 U. S. 565 (40:1075); 
 
 People of The State of California, Rogers v. Alabama, 192 U. S. 226, 
 
 136 U. S. 104, 114 (34:391); Nor- 231 (48:4;17). 
 
 folk & Western R. Co. v. Common- sa Wood v. Brush, 140 U. S. 278 
 wealth of Pennsylvania, 136 U. S. (35:515); Jigiro v. Brush, 140 U. 
 114,121 (34:394); Pensacola Tele- S. 291 (35:110); Ex Parte Corn- 
 graph Company v. Western Union monwealth of Virginia, 100 U. S. 
 Telegraph Company, 96 U. S. 12 313,338 (25:667). 
 (24:711). 
 
§ 320 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 279 
 
 on juries, when it is not shown that the actual administration 
 of such constitution and laws was evil, hut only that evil was 
 possible under them.^* 
 
 § 320. The fourteenth amendment does not require state ju- 
 dicial procedure to be uniform. — The provision of the four- 
 teenth amendment, declaring that no state shall "deny to any 
 person within its jurisdiction the equal protection of the laws, ' ' 
 does not require that state judicial procedure shall be uniform 
 throughout the territorial limits of the state, but allows diver- 
 sity in the organization, jurisdiction and procedure of the 
 courts in the different political divisions of the state, as its 
 legislature may determine. The amendment does not prohibit 
 state legislation which is limited either in the objects to which 
 it is directed, or by the territory within which it is to operate ; 
 it merely requires that all persons subjected to such legisla- 
 tion shall be treated alike, under like circumstances and con- 
 ditions, both in the privileges conferred and in the liabilities 
 imposed. The state has the right to make political subdivi- 
 sions of its territorj^ for governmental purposes, and establish 
 for them different systems for the administration of justice.*^ 
 A state statute may allow the state a larger number of per- 
 emptory challenges in capital cases in populous cities and a 
 smaller number in rural districts ; *' or it may abridge the right 
 of trial by jury in large cities without making a similar 
 abridgement in the counties of the state ; ^^ or it may establish 
 different appellate tribunals for the large cities and for the 
 counties of the state. ^' It is fundamental rights which the 
 fourteenth amendment safeguards, and not the mere forum 
 which a state may see proper to designate for the enforcement 
 and protection of such rights. Given, therefore, a condition 
 where fundamental rights are equally protected and preserved, 
 it is impossible to say that rights which are thus protected 
 
 8* Williams v. State of Mississ- Railway Company v. Snell, 193 
 
 ipppi, 179 U. S. 213, 225 (42:1012). U. S. 30, 38 (48:604). 
 
 85 Bowman v. Lewis, 101 U. S. se Hayes v. Missouri, 120 U. S. 
 
 22 (25:989); Hayes v. Missouri, 68,72 (30:578). 
 
 120 U. S. 68, 72 (30:578); Chap- 87 Chappell Chemical & Fertil- 
 
 pell Chemical & Fertilizer Co. v. izer Co. v. Sulphur Mines Co., 172 
 
 Sulphur Mines Co., 172 U. S. 474, U. S. 474, 475 (43:520). 
 
 475 (43:520); Cincinnati Street ss Bowman v. Lewis, 101 U. S. 
 
 22 (25:989). 
 
280 TEDEEAL PROCEDURE AT LAW. § 322 
 
 and preserved have been denied because the state has deemed 
 best to provide for a trial in one forum or another. It is not, 
 under any view, the mere tribunal into which a person is au- 
 thorized to proceed by a state which determines whether the 
 equal protection of the law has been afforded, but whether in 
 the tribunals which the state has provided equal laws prevail. 
 The mere direction of the state law that a cause, under given 
 circumstances, shall be tried in one forum instead of another, 
 or may be transferred, when brought, from one forum to an- 
 other, can have no tendency to violate the guaranty of the 
 equal protection of the laws, where in both forums equality of 
 law governs and equality of administration prevails.*' 
 
 § 321. Power of the state to classify cities for the registrar 
 tion of voters. — The state has the power to classify according 
 to population the cities within its limits for the purpose of the 
 registration of voters, and to apply to one city a registration 
 law different in essential particulars from that which regulates 
 the conduct of registration and elections in other cities in the 
 state ; and such diversity of legislation does not deny the equal 
 protection of the laws to the citizens of the one city which is 
 withdrawn from the operation of the law controlling the other 
 cities in the state, although the law applicable to that one city 
 may not as effectually safeguard the right and privileges of 
 voting as the laws applicable to other cities."" 
 
 § 322. State law imposing penalty on railroad companies for 
 disseminating Johnson grass seed. — The Texas statute which 
 imposes upon railway companies alone a penalty of twenty- 
 five dollars for permitting Johnson grass or Russian thistle to 
 mature and go to seed upon their right of way, such penalty 
 to be recovered in an action brought by the owners of contigu- 
 ous farm's, who are themselves innocent of doing the same 
 thing, does not deny such companies the equal protection of 
 the laws." In deciding the case cited, the supreme court, 
 speaking by Mr. Justice Holmes, said : 
 
 "It is admitted that Johnson grass is a menace to crops, that 
 it is propagated only by seed, and that a general regulation of 
 it for the protection of farming would be valid. It is admit- 
 
 89 Cincinnati Street Car Co. v. oi Missouri, Kansas & Texas 
 Snell, 193 U. S. 30, 38 (48:604). Railway Company v. May, 194 U. 
 
 90 Mason v. Missouri, 179 U. S. S. 267, 271 (48:971). 
 328, 335 (45:214). 
 
§ 323 LIMITATIONS IMPOSED pY FEDERAL CONSTITUTION. 281 
 
 ted also that legislation may be directed against a class when 
 any fair ground for the discrimination exists. But it is said 
 that this particular subjection of railroad companies to a lia- 
 bility not imposed on other owners of lands on which John- 
 son grass may grow is so arbitrary as to amount to a denial 
 of the equal protection of the laws. There is no dispute about 
 general principles. The question is whether this case lies on 
 one side or the other of the line which has to be worked out 
 between cases differing only in degree. "With regard to the 
 manner in which such a question should be approached, it is 
 obvious that the legislature is the only judge of the policy of 
 a proposed discrimination. The principle 'is similar to that 
 which is established with regard to a decision of congress that 
 certain means are necessary and proper to carry out one of its 
 express powers. When a state legislature has declared that, 
 in its opinion, policy requires a certain measure, its action 
 should not be disturbed by the courts under the fourteenth 
 amendment, unless they can see clearly that there is no fair 
 reason for the law that would not require with equal force its 
 extension to others whom it leaves imtouched. 
 
 "Approaching the question in this way, we feel unable to 
 say that the law before us may not have been justified by the 
 local conditions. It would have been more obviously fair to 
 extend the regulation at least to highways. But it may have 
 been found, for all that we know, that the seed of Johnson 
 grass is dropped from the cars in such quantities as to cause 
 special trouble. It may be that the neglected strips occupied 
 by railroads afford a ground where noxious weeds especially 
 flourish, and that whereas self-interest leads the owners of 
 farms to keep down pests, the railroad companies have done 
 nothing in a matter which concerns their neighbors only. 
 Other reasons may be imagined. Great constitutional provi- 
 sions must be administered with caution. Some play must be 
 allowed for the joints of the machine, and it must be remem- 
 bered that legislatures are ultimate guardians of the liberties 
 and welfare of the people in quite as great a degree as the 
 courts. ' ' 
 
 § 323. The design of the "equal protection" clause of the 
 fourteenth amendment. — The inhibition that no state shall de- 
 prive any person within its jurisdiction of the equal protection 
 of the laws was designed to prevent any person or class of 
 
282 FEDERAL PROCEDURE AT LAW. § 325 
 
 persons from being singled out as a special subject for discrim- 
 inating and hostile legislation ; "^ it was not designed to pro- 
 hibit legislation which, in carrying out a public purpose, is 
 limited in its application, either in the objects to which it is 
 directed, or by the territory within which it is to operate, if 
 within the sphere of its operation it affects alike all persons 
 and property similarly situated.^^ 
 
 § 324. Conspiracy to deprive persons of the equal protection 
 of the laws — Section 5519, U. S. Revised Statutes, void. — The 
 provisions of the first section of the fourteenth amendment to 
 the federal constitution have reference to state action exclij- 
 sively and not to any action of private individuals ; and, there- 
 fore, section 5519 of the Revised Statutes of the United 
 States, making it a criminal offense for two or more persons 
 ia any state or territory to conspire or go in disguise upon the 
 highway or on the premises of another for the purpose of de- 
 priving, either directly or indirectly, any person or class of 
 persons of the equal protection of the laws or of equal privi- 
 leges and immunities under the laws, or for the purpose of pre- 
 venting or hindering the constituted authorities of any state 
 or territory from giving or securing to all persons within such 
 state or territory the equal protection of the laws, is, as to its 
 operation within a state, unauthorized by the federal consti- 
 tution or any amendment thereto, and is void."* 
 
 (h) The Right of Citizens of the United States to Vote Not 
 
 TO BE Abridged on Account of Race, Color, or 
 
 Previous Condition of Servitude. 
 
 § 325. The fifteenth amendment does not confer the right to 
 vote. — The fifteenth amendment to the federal constitution de- 
 clares that: "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 
 
 92 Pembina Con. Silver Mining, land, 114 U. S. 606 (29:229) ; Rich- 
 etc. Co. V. Pennsylvania, 125 U. S. mond F. & P. R. Co. v. Richmond, 
 181, 190 (31:650). 96 U. S. 529 (24:737). 
 
 93 Hayes v. Missouri, 120 U. S. 9* United States v. Harris, 106 
 68, 71 (30:578); Barbier v. Con- ti'. S. 629, 644 (27:290); Baldwin 
 nolly, 113 U. S. 27 (28:923); Bow- v. Franks, 120 U. S. 678, 707 (30: 
 man v. Lewis, 101 U. S. 22 (25: 766); Logan v. United States, 144 
 989); Walston v. Nevln, 128 U. S. U. S. 263, 310 (36;429). 
 
 578, 582 (32:544); Wurts v. Hoog- 
 
§ 327 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 283 
 
 of servitude;" and that, "The congress shall have power to 
 enforce this article by appropriate legislation." 
 
 This amendment does not confer upon any person, or class 
 of persons, or persons of any race the right to exercise the 
 elective franchise; it simply prohibits the United States and 
 the several states from discriminating against any person in 
 respect to that right on account of race, color or previous con- 
 dition of servitude, and gives congress the power to enforce 
 the prohibition by appropriate legislation."' 
 
 § 326. The right to vote derived from the state. — The right 
 to vote in the states comes from the states;"' and the right to 
 vote which was intended to be protected by the fifteenth 
 amendment, is the right to vote as established by the laws 
 and constitution of the state."' 
 
 § 327. The fifteenth amendment a limitation upon the fed- 
 eral and state governments. — The first section of the fifteenth 
 amendment to the federal constitution is a limitation or pro- 
 hibition upon the federal and state governments; it has refer- 
 ence to state and federal action, and not to any action of private 
 individuals."* And a federal statute which enacts that "every 
 person who prevents, hinders, controls, or intimidates another 
 from exercising, or in exercising the right of suffrage, to whom 
 that right is guarantied by the fifteenth amendment to the consti- 
 tution of the United States, by means of bribery, or threats of 
 depriving such person of employment or occupation, or of eject- 
 ing such person from a rented house, lands, or other property, or 
 by threats of refusing to renew leases or contracts for labor, or 
 by threats of violence to himself or family, shall be punished" 
 as for a criminal offense, cannot be sustained as an appropriate 
 exercise of the power conferred by the fifteenth amendment 
 upon congress to enforce the limitation upon the states therein 
 contained, and such statute is unconstitutional."" 
 
 95 United States v. Reese, 92 U. v. Williams, 193 U. S. 621, 634 (48 : 
 S. 214, 256 ( 23 : 563 ) ; United States 817 ) . 
 
 V. Cruikshank, 92 U. S. 542, 569 s^ McPherson v. Blacker, 146 U. 
 
 (23:588); Minor v. Happersett, 21 S. 1, 42 (36:869). 
 
 Wall. 162, 178 (22:627); James v. as United States v. Reese, 92 U. 
 
 Bowman, 190 U. S. 127, 142 (47: S. 214, 217 (23:563); James v, 
 
 979); Pope v. Williams, 193 U. S. Bowman, 190 U. S. 127, 142 (47: 
 
 621, 634 (48:817). 979). 
 
 96 United States v. Cruikshank, 99 James v. Bowman, 190 U. S. 
 92 U. S. 542, 569 (23:588); Pope 127, 142 (47:979). 
 
'284 FEDERAL, PROCEDURE AT LAW. § 329 
 
 § 328. Same — The only inhibited abridgment is one based 
 on race, color or previous condition of servitude. — A denial or 
 abridgement of the right of citizens of the United States to 
 Tote must, in order to be in violation of the amendment, be one 
 which is made ' ' on account of race, color, or previous condition 
 •of servitude." The power of congress to legislate at all upon 
 the subject of voting at state elections rests upon this amend- 
 ment; the amendment does not confer upon congress authority 
 to impose penalties for every wrongful refusal to receive the 
 vote of a qualified elector at state elections ; it is only when the 
 wrongful refusal at such an election is because of race, color, 
 or previous condition of servitude, that congress can interfere 
 and provide for its punishment. And a penal statute enacted 
 "by congress, for the purpose of enforcing the inhibition of the 
 fifteenth amendment, which is in general language broad 
 •enough to cover wrongful acts without as weU as within its 
 constitutional power, can not be limited by judicial construc- 
 tion so as to make it operate only on that which congress may 
 rightfully prohibit and punish.^ 
 
 {i) Laws Impairing the Obligation of Contracts. 
 
 § 329. No state to pass law impairing obligation of con- 
 tracts — ^Prohibition upon the states— Method of enforcement. — 
 
 It is declared by the constitution that : No state shall pass any 
 ^'law impairing the obligation of contracts."^ This is a pro- 
 
 1 tJnited. States v. Reese, 92 U. S. ■when ascertained, If within the 
 214, 217 (23:563); James v. Bow- constitutional grant of power, 
 man, 190 U. S. 127, 142 (47:979); Within its legitimate sphere, con- 
 Pope V. Williams, 193 U. S. 621, 634 gress is supreme and beyond the 
 (48:817); United States v. Cruik- control of the courts; but if it 
 shank, 92 U. S. 542, 569 (23:588). steps outside of its constitutional 
 "It would certainly be dangerous limitation and attempts that 
 if the legislature could set a net which is beyond its reach, the 
 large enough to catch all possible courts are authorized to, and when 
 offenders and leave it to the courts called upon In due course of legal 
 to step Inside and say who could proceedings must, annul its en- 
 be rightfully detained and who croachments upon the reserved 
 should be set -at large. This would,, power of the states and the peo- 
 to some extent, substitute the ju- pie." Chief Justice Waite in Uni- 
 dicial for the legislative depart- ted States y. Reese, supra, 
 ment of the government. The 2 U. S. Const. Art. II. sec. 10. 
 •courts enforce the legislative will 
 
§ 331 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 285 
 
 hi'bition on the states, and has always been enforced under the 
 twenty-fifth section of the original judiciary act, by writ of 
 error from the supreme court of the United States to the high- 
 est courts of the states, in cases involving state statutes alleged 
 to be repugnant to the constitutional provision, where such 
 statutes have been upheld by the highest courts of the state.^ 
 
 § 330. Same — Same — Power of United States circuit courts 
 to declare such statutes void. — The circuit courts of i the United 
 States have the power, in suits originally brought before them,^ 
 or removed into them from state courts, to declare void any 
 state statute' which is repugnant to the contract clause of the 
 federal eonstituion, if the validity of such statute be in issue 
 in the suit. The first case arising under the contract clause 
 of the constitution was originally brought in the circuit court 
 of the United States for the district of Massachusetts, which 
 held void a statute of the state of Georgia because it impaired 
 the obligation of a contract made by that state, and the deci- 
 sion of the circuit court was, upon writ of error, affirmed by 
 the supreme court of the United States; and since that deci- 
 sion, the jurisdiction of the federal circuit courts to declare 
 invalid state statutes which are repugnant to the contract 
 clause of the constitution has been regarded as beyond ques- 
 tion.* 
 
 § 331. The federal supreme court will determine for itself 
 whether there is a contract, and whether its obligation is im- 
 paired. — ^Upon writ of error, in reaching a conclusion on the 
 qaestion whether the judgment of the supreme court of a state 
 has given effect to a law of the state which, in violation of the 
 constitution of the United States, impairs the obligation of a 
 
 contract, the supreme court of the United States will decide 
 
 f 
 
 3 Dartmouth College v. Wood- 148 (3:162); Green v. Biddle, 8 
 
 ward, 4 Wheat. 518, 715 (4:629); Wheat. 1, 108 (5:547); Sturges v. 
 
 Curran v. Arkansas, 15 How. 304, Crowinshield, 4 Wheat. 122, 208 
 
 322 (14:705); Walker v. White- (4:529); Ogden v., Saunders, 12 
 
 head, 16 Wall. 314 (21:357); U. S. Wheat. 214, 369 (6:606); Bronson 
 
 V. Quincy, 4 Wall. 535 (18:403); v. Kinzie,l How. 311, 332 (11:143) ; 
 
 Louisiana v. St. Martin's Parish, McCracken v. Hayward, 2 How. 
 
 Ill U. S. 716 (28:574); Houstan 608, 619 (11:397); Shapleigh v. 
 
 & Texas Central Railroad Co. v. San Angelo, 167 U. S. 646 (42:310); 
 
 State of Texas, 177 U. S. 66, 103 Bedford v. Eastern Bldg. & L. 
 
 (44:673). Assn., 181 U. S. 227 (45:834). 
 
 * Fletcher v. Peck, 6 Cranch, 87, 
 
286 FEDERAL PROCEDUEE AT LAW. § 332 
 
 for itself, independently of the decision of the, state court, 
 (1) whether there is a contract, and (2) whether its obliga- 
 tion is impaired; and if the decision of the question as to the 
 existence of the alleged contract requires a construction of 
 state constitutions and laws, the supreme court of the United 
 States is not necessarily governed by previous decisions of the 
 state court upon the same or similar points, except where they 
 have been so firmly established as to constitute a rule of prop- 
 erty."" 
 
 § 332. Contract defined. — A contract is a compact between 
 two or more parties, and is either executed or executory. A 
 contract executed is one in which everything that was to be 
 done is done, and nothing remains to be done, and the object 
 of the contract is performed and accomplished; and such a 
 contract requires no consideration to support it. A consum- 
 mated gift is as valid in law as a contract made upon a valu- 
 able consideration. A grant actually made is an executed con- 
 tract. An executory contract is one in which it is stipulated, 
 upon a sufficient consideration, that something is to be done or 
 not to be done by one or both of the parties. A contract exe- 
 cuted, as well as one which is executory, contains obligations 
 binding on the parties. An executed contract divests the par- 
 ties of the rights, titles and estates which they, respectively, 
 by such contract have granted away or parted with, and im- 
 poses on them an obligation not to re-assert such rights, titles 
 and estates. A grant estops the grantor, and imposes on him 
 a continuing obligation not to assert any right in opposition 
 to his own grant and relinquishment. The constitutional in- 
 hibition against the impairment of the obligation of contracts 
 applies alike to both executory and executed contracts, by 
 whomsoever made." 
 
 5 Louisville & Nashville Railroad 1 Black, 43G, 450 (17:173); Bryan 
 
 Co. V Palmes, 109 U. S. 244, 258 v. Board of Education, 151 U. S. 
 
 (27:922); Bank v. Knoop, 16 How. 639, 658 (38:297); Mobile & Ohio 
 
 369, 391 (14:977); Louisville Gas R. Co. v. Tennessee, 153 U. S. 486, 
 
 Co. V. Citizens Gas Light Co., 115 509 (38:793); Shelby County v. 
 
 U. S. 638, 700 (29:510) ; Vicksburg, Union & Planters' Bank, 161 V. S. 
 
 Shrevesport & Pacific R. R. Co. v. 149, 161 (40:651). 
 Dennis, 116 U. S. 665, 671 (29: s pietcher v. Peck, 6 Cranch, 87, 
 
 770); "Wright v. Nagle, 101 U. S. 143 (3:162); Green v. Biddle, 8 
 
 791,797 (25:921); Bank v. Skelly, Wheat. 1, 108 (5:547); Davis v. 
 
§ 333 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 287 
 
 § 333. Same — Charters of private corporations. — ^Every pro- 
 vision of the charter of a private corporation granting to the 
 incorporators any valuable right, privilege or franchise, and 
 ■which conduced to an acceptance of the charter and an organi- 
 
 Ctray, 16 "Wall. 203, 233 (21:447); 
 Farrington v. Tennessee, 95 TJ. S. 
 679, 694 (24:558). 
 
 In Fletcher v. Peck, supra, which 
 Involved the validity of an act of 
 the state of Georgia, attempting to 
 annul a grant of lands previously 
 made by that state, Chief Justice 
 Marshall, delivering the opinion of 
 the court, said: 
 
 "Does the ca'se now under con- 
 sideration come within this pro- 
 hibitory section of the constitu- 
 tion? In considering this very in- 
 teresting question, we immediately 
 ask ourselves what is a contract? 
 Is a grant a contract? 
 
 "A contract is a compact be- 
 tween two or more parties, and is 
 either executory or executed. An 
 executory contract is one in which 
 a party binds himself to do or not 
 to do a particular thing; such was 
 the law under which the convey- 
 ance was made by the governor. A 
 contract executed is one in which 
 the object of the contract is per- 
 formed; and this, says Blackstone, 
 differs in nothing from a grant. 
 The contract between Georgia and 
 the purchasers was executed by 
 the grant. A contract executed, as 
 well as one which is executory, 
 contains obligations binding on 
 the parties. A grant, in its own 
 nature, amounts to an extinguish- 
 ment of the right of the grantor, 
 and implies a contract not to re- 
 assert that right. A party is, 
 therefore, always estopped by his 
 own grant. 
 
 "Since, then, in fact, a grant is 
 a contract executed, the obligation 
 
 of which still continues, and since 
 the constitution uses the gen,eral 
 term contract, without distinguish- 
 ing between those which are ex- 
 ecutory and those which are exe- 
 cuted, it must be construed to com- 
 prehend the latter as well as the 
 former. A law annulling convey- 
 ances between individuals, and de- 
 claring that the grantors should 
 stand siezed of their former es- 
 tates, notwithstanding those grants, 
 would be as repugnant to the con- 
 stitution as a law discharging the 
 vendors of property from the obli- 
 gation of executing their contracts 
 by conveyances. It would be strange 
 if a contract to convey was secured 
 by the constitution, while an abso- 
 lute conveyance remained unpro- 
 tected. 
 
 "If, under a fair construction of 
 the constitution, grants are com- 
 prehended under the term con- 
 tracts, is a grant from the state 
 excluded from the operation of the 
 provision? Is the clause to be con- 
 sidered as inhibiting the state 
 from impairing the obligation of 
 contracts between two individuals, 
 but as excluding from that inhibi- 
 tion contracts made by itself? The 
 words themselves contain no such 
 distinction. They are general, and 
 are applicable to contracts of every 
 description. If contracts made 
 with the state are to be exempted 
 from their operation, the exception 
 must arise from the character of 
 the contracting party, not from 
 the words which are employed. 
 
 "Whatever respect might have 
 been felt for the state sovereign- 
 
288 
 
 FEDEEAL PROCEDURE AT LAW. 
 
 333 
 
 zation under it, is a contract within the meaning of the eon- 
 tract clause of the constitution and is protected by it, unless 
 the power to change the charter is reserved in the charter 
 itself, or in some constitutional or statutory provision ; ^ and 
 this is true although the corporation engages in a public busi- 
 ness, such as the, business of a public carrier, and its property 
 is affected with a public interest.' 
 
 ties, it is not to be disguised that 
 the framers of the constitution 
 viewed, with some apprehension, 
 the violent acts which might grow 
 out of the feelings of the moment; 
 and that the people of the United 
 States, in adopting that instru- 
 ment, have manifested a determin- 
 ation to shield themselves and 
 their property from the effects of 
 those sudden and strong passions 
 to which men are exposed. The 
 restrictions on the legislative 
 power of the states are obviously 
 founded in this sentiment; and 
 the constitution of the United 
 States contains what may be 
 deemed a bill of rights for the 
 people of each state. No state 
 shall pass any bill of attainder, ex 
 post facto law, or law impairing 
 the obligation of contracts. A 
 bill of attainder may affect the life 
 of an individual, or may confiscate 
 his property, or may do both. In 
 this form the power of the legis- 
 lature over the lives and fortunes 
 of individuals is expressly re- 
 strained. What motive, then, for 
 implying, in words which import a 
 general prohibition to impair the 
 obligation of contracts, an excep- 
 tion in favor of the right to im- 
 pair the obligation of those con- 
 tracts into which the state may en- 
 ter?" 
 
 In Parrington v. Tennessee, su- 
 pra, Mr. Justice Swayne, deliver- 
 ing the opinion of the court, said: 
 
 "Contracts are executed or execu- 
 
 tory. A contract is executed where 
 everything that was to be done is 
 done, and nothing remains to be 
 done. A grant actually .made is 
 within this category. Such a con- 
 tract requires no consideration to 
 support it. A gift consummated 
 is as valid in law as anything else. 
 An executory contract is one where 
 it is stipulated by the agreement 
 of minds, upon a sufficient con- 
 sideration, that something is to 
 be done or not to be done by one 
 or both of the parties. Only a 
 'slight consideration is necessary. 
 The constitutional prohibition ap- 
 plies alike to both executory and 
 executed contracts, by whomsoever 
 made. The amount of impairment 
 of the obligation Is immaterial. If 
 there be any, it is sufficient to 
 bring into activity the constitu- 
 tional provision and the judicial 
 power of this court to redress the 
 wrong." 
 
 f Dartmouth College v. Wood- 
 ward, 4 Wheat. 518 (4:629) ; Bank 
 V. Knook, 16 How. 369, 415 (14: 
 977) ; Bridge Co. v. Bridge Co., 3 
 Wall. 51 (18:137); Davis v. Gray, 
 16 Wall. 203 (21:447); Home of 
 Friendless v. Rouse, 8 Wall, 430 
 (19:495); Gordan v. Appeal Tax 
 Court, 3 How. 133 (11:529); Wash- 
 ington University v. Rouse, 8 Wall. 
 439 (19:498); St. Anna's Asylum 
 V. New Orleans, 105 U. S. 362 (26: 
 1128); Farrington v. Tennessee, 
 95 U. S. 679, 694 (24:558). 
 
 8 Davis V. Gray, 16 Wall. 203 (21: 
 
§ 334a LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 28!1 
 
 § 334. Same — Same — ^Rule for construing legislative grants. 
 
 In construing legislative grants, that construction must be- 
 adopted which is most advantageous to the interests of the 
 state. All rights which are asserted against the state must 
 be clearly defined, and not raised by inference or presumption ; 
 and if the grant or charter is silent about a power, it does not- 
 exist. If, on a fair reading of the instrument, reasonable- 
 doubts arise as to the proper interpretation to be given to it,, 
 those doubts are to be solved in favor of the state ; and where- 
 it is susceptible of two meanings, the one restricting and the 
 other extending the powers of the corporati(m, that construc- 
 tion is to be adopted which works the least harm to the state. 
 But if there is no ambiguity in the charter, and the powers con- 
 ferred are plainly marked, and their limits can be readily as- 
 certained, then it is the duty of the court to sustain and uphold 
 it, and to carry out the true meaning and intention of the par- 
 ties to it. Any other rule of construction would defeat all 
 legislative grants. ° 
 
 § 334a. The prohibition protects all contracts, without re- 
 gard to their nature or the character of the parties. — The con- 
 stitutional inhibition, forbidding the states to pass any "law 
 impairing the obligation of contracts" uses the general term 
 "contract," without distinguishing betwr^en different kinds or 
 classes of contracts or the character of parties entering into 
 them, and the words of the provision contain no distinction 
 or exception, but are general and applicable to contracts of 
 every description and by whomsoever made: and, therefore, 
 the inhibition protects all contracts, which are valid by the 
 municipal law, without regard to their nature, classification, 
 subject-matter, or the character of the parties who make and 
 
 447) ; Willmington & W. R. R. Co. Litchfield, 23 Ho-w. 66 (16:500); 
 ' V. Held, 13 Wall. 264 (20:568); Rice v. Minnesota & N. W. R. R. 
 Georgia R. & Bkg. Co. v. Smith, Co., 1 Black, 380 (17:153); Leaven- 
 128 U. S. 174 (32:377). -worth L. & G. R. R. Co. v. United 
 9 Chenango Bridge Co. v. BIng- States, 92 U. S. 733 (23:634); 
 hamton Bridge Co., 3 Wall. 51, 83 North-western Fertilizing Co. v.. 
 (18:137) ; Hannibal and St. Joseph Hyde Park, 97 U. S. 660 (24:1036) ; 
 Railroad Co. v. Missouri River Stein v. Beinville Water Supply- 
 Packet Co., 125 U. S. 260, 273 (31: Co., 141 U. S. 67, 81 (35:622); 
 731) ; Charles River Bridge v. Covington & Lexington Turnpike 
 Warren Bridge, 11 Pet. 544 (9: Road, Co. v. Sandford, 164 XJ. S. 
 B22); Dubuque & P. R. R. Co. v. 578, 598 (41:560). 
 
 19 
 
290 FEDERAL PROCEDURE AT LAW. § 3340- 
 
 enter into them; it protects contracts whether executory or 
 executed, express or implied, and whether they be contracts 
 by legislative grant, or by matter of record, or by deed, or 
 contracts without deed or simple contracts, as they are called 
 at the common law; it protects contracts between private in- 
 dividuals, between the state and individuals, between the state 
 and corporations, between corporations, between state and 
 state, and between a state and the United States. 
 
 The inhibition against the impairment of contracts is asso- 
 ciated in the text of the constitution with the other great con- 
 stitutional inhibitions against the state — ^the inhibitions against 
 the emission of bills of credit, the inhibition for the protection 
 of the currency, and the inhibition against bills of attainder 
 and ex post facto laws — in the adoption of which the people 
 of the several states manifested a determination to effectually 
 protect themselves, their lives, their fortunes and their prop- 
 erty from "the effects of those sudden and strong passions 
 to which men are exposed," and which are liable to result in 
 hasty and inconsiderate legislation; and there is nothing in the 
 words of the contract clause nor in the context which implies 
 an intention to except from its operation any character or class 
 of valid contracts, and the universal current of authority is 
 that there are no such exceptions.^" 
 
 10 U. S. Const, art. 1, sec. 10; S. 683 (29:510); McGehee v. 
 
 Pletcber V. Peck, 6 Cranch. 87, 148 Mathis, 4 "Wall. 143 (18:314); 
 
 (3:87); Green v. Blddle, 8 Wheat. Davis v. Gray, 16 Wall. 203 (21: 
 
 92 (5:547); Dartmouth College v. 447); Gordon v. Appeal Tax Court, 
 
 Woodward, 4 Wheat. 627 (4:629); 3 How. 133 (11:529); St. Anna's 
 
 Sturges v. Crowlnshield, 4 Wheat. Asylum v. New Orleans, 105 TJ. S. 
 
 197 (4:529); Ogden v. Saunders, 362 (26:1128) ; Home of Friendless 
 
 12 Wheat. 317 (6:606); Chenango v. Rouse, 8 Wall. 430 (19:495); 
 
 Bridge Co. v. Binghamton Bridge Wilmington & W. R. R. Co. v. Reid, 
 
 Co., 3 Wall. 51 (81:137); Davis v. 13 Wall. 264 (20:568); Walker v. 
 
 Gray, 10 Wall. 203 (21:447) ; Bank Whitehead, 16 Wall. 314 (21:357) ; 
 
 v. Knoop, 16 How. 369 (14:977); Currau v. Arkansas, 15 How. 304 
 
 Bridge Proprietors v. Hoboken L. (14:705); McCracken v. Hayward, 
 
 & I. Co., 1 Wall. 116 (17:571); New 2 How. 608 (11:397); Louisiana 
 
 Orleans Water Works Co. v. Riv- v. St. Martin's Parish, 111 TJ. S. 
 
 ers, 115 U. S. 674 (29:525); New 716 (28:574); Van Hoffman v. 
 
 Orleans' Gas Light Co. V. Louisiana Quincy, 4 Wall. 535 (18:403); 
 
 Light & Heat, etc Co., 115 U. S. Gunn v. Barry, 15 Wall. 610 (21: 
 
 650 (29:516); Louisville Gas Co. 212); Louisiana v. New Orleans, 
 
 v. Citizen's Gas Light Co., 115 U. 102 U. S. 203 (26:132); Clay 
 
§ 334& LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 291 
 
 § 334b. Marriage not within the prohihition. — The constitu- 
 tional inhibition forbidding the states to pass laws impairing 
 the obligation of contracts was not intended to restrict the 
 right of the legislatures of the state to legislate upon the sub- 
 ject of divorce ; marriage is a social relation, and is not a con- 
 tract within the meaning of the prohibition.'^ 
 
 County V. Society for Savings, 104 
 U. S. 579 (26:856); Red Rock v. 
 Henry, 106 U. S. 596 (27:251); 
 Boyce v. Tabb, 18 Wall. 546 (21: 
 757) ; White v. Hart, 13 Wall. 646 
 (20:685); Cleveland, etc., R. R. 
 Co. V. Pennsylvania, 15 Wall. 300 
 (21:179); Pittsburg, etc R. R. Co. 
 V. Pennsylvania, 15 Wall. 326 (21: 
 189); Farrington v. Tennessee, 95 
 U. S. 679 (24:558); Dodge v. Wool- 
 sey, 18 How. 331 (15:401); Bank 
 v. Thomas, 18 How. 384 (15:460); 
 Bank V. Skelly, 1 Black, 436 (17: 
 173); Bank v. Ohio, 1 Black, 474 
 (17:180); New Jersey v. Yard, 95 
 U. S. 104 (24:352); Effinger v. 
 Kenney. 115 U. S. 566 (29:495); 
 Pacific R. R. Co. v. Maguire, 20 
 Wall. 36 (22:282); Northwest Uni- 
 versity V. People, 99 U. S. 309 (25: 
 387) ; Bank v. Billings, 4 Pet. 560 
 (7:939); Hartman v. Greenhow, 
 102 U. S. 679 (26:271); Wolff 
 v. New Orleans, 103 U. S. 367 (26: 
 395) ; Hall v. Wisconsin, 103 U. S. 
 8 (26:302) ; Houston & Texas Cen- 
 tral R. Co. v. Texas, 177 U. S. 66 
 (44:673); Barnitz v. Beverly, 163 
 U. S. 118 (41:93). 
 
 iiMaynard v. Hill, 125 U. S. 
 190, 216 (31:654); Hunt v. Hunt, 
 97 TJ. S. 564,' 565 (24:1109); Dart- 
 mouth College V. Woodward, 4 
 Wheat. 518, 715 (4:629). 
 
 In Maynard v. Hjll, supra, Mr. 
 Justice Field, delivering the opin- 
 ion of the court, and reviewing 
 and quoting from the authorities, 
 stated the ratio decidendi substan- 
 tially as follows: 
 
 "It is also to be observed that, 
 whilst marriage is often termed 
 by the text writers and in de 
 cisions of courts as a civil contract 
 — generally to indicate that it must 
 be founded upon the agreement of 
 the parties, and does not require 
 any religious ceremony for its 
 solemnization — it is something 
 more than a mere contract. The 
 consent of the parties is of course 
 essential to its existence; but when 
 the contract to marry is executed 
 by the marriage, a relation be- 
 tween the parties is created which 
 they cannot change. Other con- 
 tracts may be modified, restricted, 
 or changed, or entirely released up- 
 on the consent of the parties. Not 
 so with marriage. The relation 
 once formed, the law steps in and 
 holds the parties to various obliga- 
 tions and liabilities. It is an in- 
 stitution, in the maintenance of 
 which in its purity the public is 
 deeply interested, for it is the 
 foundation of the family and of so- 
 ciety, without which there would 
 be neither civilization nor progress. 
 
 "When the contracting parties 
 have entered into the marriage 
 state, they have not so much en- 
 tered into a contract as into a new 
 relation, the rights, duties, and 
 obligations of whi(ii rest not upon 
 their agreement, but upon the gen- 
 eral law of the state, statutory or 
 common, which defines and pre- 
 scribes those rights, duties and 
 obligations. They are of law, not 
 of contract. It was a contract that 
 
292 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 335 
 
 § 335. "Obligation of contracts" defined.— The "obligation 
 of contracts," within the meaning of the contract clause of 
 the constitution, implies both (1) validity and (2) remedy. 
 The inhibition protects from impairment (1) the legal validity 
 of the contract itself, and the rights created by its terms and 
 stipulations, and the duty of performance imposed by its en- 
 gagements, and (2) the means and remedies for the enforce- 
 ment of the contract, as established and defined, substantially, 
 by the municipal law of the state, at the time when, and with 
 reference to which, the contract was made. The idea of valid- 
 ity and remedy are inseparable, and both are parts of the ob- 
 ligation protected by the constitution. The obligation of a- 
 contract depends upon its terms and the means which the law 
 in existence at the time affords for its enforcement. A law 
 which alters the terms of a contract, by imposing new condi- 
 tions, or dispensing with those expressed, is a law which im- 
 pairs its obligation.^^ 
 
 the relation should be established, 
 but, being established, the power 
 of the parties as to its extent or 
 duration is at an end. Their rights 
 under it are determined by the 
 will of the sovereign, as evidenced 
 by law. They can neither be modi- 
 fied nor changed by any agreement 
 of parties. It is a relation for life, 
 and the parties cannot terminate 
 it at any shorter period by virtue 
 of any contract they may make. 
 The reciprocal rights arising from 
 this relation, so long as it con- 
 tinues, are such as the law deter- 
 mines from time to time, and none 
 other. 
 
 "It is not, then, a contract with- 
 in the meaning of the clause of the 
 constitution which prohibits the 
 impairing the obligation of con- 
 tracts. It is, rather, a social rela- 
 tion, like that of parent and child, 
 the obligation of which arises not 
 from the consent of concurring 
 minds, but are the creation of the 
 law itself, a relation the most im- 
 portant, as affecting the hapiness 
 
 of individuals, the first step from 
 barbarism to incipient civilization, 
 the purest tie of social life, and 
 the true basis of human progress. 
 
 "Marriage is more than a con- 
 tract; it is the most elementary 
 and useful of all the social rela- 
 tions, is regulated and controlled 
 by the soverign power of the state, 
 and cannot, like mere contracts, 
 be dissolved by the mutual con- 
 sent of the contracting parties, but 
 may be abrogated by the soverign 
 will whenever the public good, or 
 justice to both parties, or either of 
 the parties, would thereby be sub- 
 served; and being more than a 
 contract, and depending especially 
 upon the soverign will, it Is not 
 embraced by the constitutional in- 
 hibition of legislative acts impair- 
 ing the obligation of contracts." 
 
 12 Walker v. Whitehead, 16 Wall. 
 314 (21:357); White v. Hart, 13 
 Wall. 646, 654 (20:685); Van Hoff- 
 man v. Quincy, 4 Wall. 535 (18: 
 403) ; Louisiana v. St. Martin's 
 Parish, 111 U. S. 716 (28:574) i 
 
§ 337 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 293 
 
 § 336. — Same — Axioms in American jurisprudence. — The su- 
 preme court of the United States, speaking by Mr. Justice 
 Swayne, has announced the following axioms in American 
 jurisprudence relating to contracts, namely: 
 
 (1) The laws which exist at the time and place of the mak- 
 ing of a contract, and where it is to be performed, enter into 
 and form a part of it. This embraces alike those which affect 
 its validity, construction, discharge, and enforcement. Noth- 
 ing is more material to the obligation of a contract than the 
 means of its enforcement. The ideas of validity and remedy 
 are inseparable, and both are parts of the obligation which 
 is guarantied by the constitution against impairment. (2) The 
 obligation of a contract is the law which binds the parties to 
 perform their agreement. (3) Any impairment of the obliga- 
 tion of a contract (the degree of the impairment is immaterial), 
 is within the prohibition of the constitution. (4) The states 
 may change the remedy, provided no substantial right secured 
 by the contract is impaired. Whenever such a result is pro- 
 duced by the act in question, to that extent it is void. The 
 states are no more permitted to impair the efficacy of a con- 
 tract in this way, than to attack its validity in any other man- 
 ner. Against all assaults coming from that quarter, whatever 
 guise they may assume, the contract is shielded by the consti- 
 tution. It must be left with the same force and effect, includ- 
 ing the substantial means Of enforcement which existed when 
 it was made. The guaranty of the constitution gives it pro- 
 tection to that extent.^^ 
 
 § 337. Changing the remedy. — "Whatever belongs merely 
 to the remedy may be altered according to the will of the state, 
 provided the alteration does not impair the obligation of the 
 
 McCracken v. Hayward, 2 How. 96 U. S. 69 (24:610); Seibert v. 
 
 608 (11:397); Curran v. Arkansas, United States, 122 U. S. 284 (30: 
 
 15 How. 304 (14:705); Dartmouth 1163); Barnitz v. Beverly, 163 U. 
 
 College V. Woodward, 4 Wheat. S. 118, 132 (40:93) ; Cleveland, etc. 
 
 518 (4:629); Gunn v. Barry, 15 R. R. Co. v. Pennsylvania, 82 U. S. 
 
 Wall. 610 (21:212); Louisiana v. 300, 326 (21:179); Murray v. 
 
 New Orleans, 102 tJ. S. 203 (26: Charleston, 96 V. S. 432, 449 (24: 
 
 132) ; Edwards v. Kearzey, 96 U. S. 760) . 
 
 596, 611 (24:793); Bronson v. is Walker v. Whitehead, 16 Wall. 
 
 Kinzie, 1 How. 311 (11.143); Brine 314,318 (21:357); United States 
 
 V. Hartford F. Ins. Co., 96 V. S. v. Quincy, 4 Wall. 585, 555 (18: 
 
 327 (24:858); Tennessee v. Sneed, 403). 
 
294 FEDERAL PROCEDURE AT LAW. § 339 
 
 contract. But if that effect is produced, it is immaterial 
 whether it is done by acting on the remedy or directly on the 
 contract itself. In either case it is prohibited by the constitu- 
 tion." ^* The legislature has the control of the modes of pro- 
 ceedings and the forms of procedure to enforce contracts, and 
 may alter them, provided it furnishes a remedy which is com- 
 plete and which secures all the substantial rights of the parties 
 to contracts. ^^ It is a settled rule that the laws which pre- 
 scribe the mode of enforcing a contract, which are in existence 
 when and where a contract is made and is to be performed, 
 are so far a part of the contract that no changes in those laws 
 which seriously interfere with that enforcement are valid, be- 
 cause they impair its obligation within the meaning of the, con- 
 stitution of the United States. '^'' 
 
 § 338. Same — Rule stated by Mr. Justice Bradley. — In a case 
 decided by the supreme court of the United States at the Octo- 
 ber Term, 1889, Mr. Justice Bradley stated the rule on this sub- 
 ject as follows : 
 
 "It is well settled by the adjudications of this court, that the 
 obligation of a contract is impaired, in the sense of the consti- 
 tution, by any act which prevents its enforcement, or which 
 materially abridges the remedy for enforcing it, which existed 
 at the time it was contracted, and does not apply an alterna- 
 tive remedy equally adequate and efficacious."'-' 
 
 § 339. Change in statute of limitations. — It is the settled doe- 
 trine that state legislatures may prescribe a limitation for the 
 bringing of suits where none previously existed, as well as 
 
 li Bronson v. Kinzie, 1 How. 311 McGahey v. Virginia, 135 U. S. 
 
 (11:143); McCracken v. Hayward, 062(34:304). 
 
 2 How. 608 (11:398); Howard v. " McGahey v. Virginia, 135 U. S. 
 
 Bugbee, 24 How. (16:753); Brine 662 (34:304); citing Bronson v. 
 
 V. Hartford F. Ins. Co., 96 U. S. Kinzie, 1 How. 311 (11:143); 
 
 627 (24:858); Seibert v. United Woodruff v. Trapnall, 10 How. 190. 
 
 States, 122 U. S. 284 (30:1103); (13:383); Purman v. Nichol, 8 
 
 Louisiana V. New Orleans, 102 U. S. Wall. 44 (19:370); Walker v. 
 
 203 (26:132); Barnitz v. Beverly, Whitehead, 16 Wall. 314 (21:357); 
 
 103 U. S. 118, 132 (41:93). Von Hoffman v. Quincy, 4 Wall. 
 
 15 Tennessee v. Sneed, 96 U. S. 535 (18:403); Tennessee v. Sneed, 
 
 69 (24:010); Barnitz v. Beverly, 96 U. S. 69 (24:610); Memphis v. 
 
 163 U. S. 118 (41:93). United States, 97 U. S. 293 (24: 
 
 i« Brine v. Hartford P. Ins. Co., 920) ; Memphis v. Brown, 97 U. S. 
 
 96 U. S. 627 (24:858); Barnitz v. 300 (24:924); Howard v. Bugbee, 
 
 Beverly, 163 U. S. 118 (41:93); 24 How. 461 (16:753). 
 
§ 341 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 295 
 
 shorten the time within which suits to enforce existing causes 
 of action may be commenced, provided, in each case, a reason- 
 able timCj taking all the circumstances into consideration, be 
 given by the new law for the commencement of suits before the 
 bar takes effect. The passage of a new statute of limitations 
 giving a shorter time for the bringing of actions than existed 
 before, even as applied to actions which had accrued, does not 
 necessarily affect the remedy to such an extent as to impair 
 the obligation of the contract within the meaning of the con- 
 stitution, provided a reasonable time is given for the bringing 
 of such actions.^' 
 
 § 340. Judgment for tort not a contract. — A judgment re- 
 covered upon a liability for a tort, created by statute, is not a 
 contract within the meaning of the constitutional provision for- 
 bidding state legislation impairing its obligation, for the rea- 
 son that the- term "contract" is used in the constitution in its 
 ordinary sense as signifying the agreement of two or more 
 minds, for considerations proceeding from one to the other to 
 do or not to do certain acts; and a state law taking away the 
 means and remedy of collecting such a judgment is not within 
 the constitutional inhibition.^" 
 
 § 341. Withdrawing the power of taxation from municipal 
 corporations impairs contract, when. — When a state has au- 
 thorized a municipal corporation to contract and to exercise the 
 power of local taxation to the extent necessary to meet its 
 engagements, the power thus given cannot be withdrawn until 
 the contract is satisfied. The state and the corporation, in such 
 cases, are equally bound. The power given becomes a trust 
 which the donor cannot annul, and which the donee is bound 
 to execute; and neither the state nor the corporation can any 
 more impair the obligation of a contract in this way than in 
 any other way.-" 
 
 IS Wheeler v. Jackson, 137 U. S. tis, 113 U. S. 452, 464 (28:1038); 
 
 245 (34:569); McGahey v. Vir- Freeland v. Williams, 131 U. S. 
 
 ginia, 135 U. S. 662 (34:304); 405(35:193). 
 
 Terry v. Anderson, 95 U. S. 628; 20 Van Hoffman v. Quincy, 4 
 
 632 (24:365); Koshkonong v. Bur- Wall. 535 (18:403); Galena v. Uni- 
 
 ton, 104 U. S. 668, 675 (26:886); ted States, 5 Wall. 705, 710 (18: 
 
 Mitchell V. Clark, 110 U. S. 633, 560); United States v. New Or- 
 
 643 (28:279). leans, 103 U. S. 358 (26:395); Ralls 
 
 i» Louisiana v. New Orleans, 109 County v. United States, 105 U. S. 
 
 U. S. 285 (27.936); Chase v. Cur- 733 (26:1220); Louisiana v. Police 
 
296 FEDERAL PEOCEDUEE AT LAW. § 345 
 
 § 342. Increasing exemptions from execution sales. — ^A law 
 
 of the state increasing the exemptions of property of debtors 
 from seizure and sale under execution is unconstitutional as 
 to contracts made before the passage of such law.^^ 
 
 § 343. Laws altering terms of contracts. — A law which alters 
 the terms of a contract by imposing new conditions, or dispens- 
 ing with those expressed, is a law impairing its obligation.^^ 
 And a state statute which, in an effort to tax the bonds of cor- 
 porations held by non-residents, requires the corporations do- 
 ing business within its limits and which pay interest to their 
 bondholders or other creditors, to paj' a part of that interest 
 to the state for taxes upon the bonds, is void.^^ 
 
 § 344. What are laws. — The constitution of a state is a law 
 of the state within the meaning of the constitution of the 
 United States, prohibiting states from passing laws impairing 
 the obligation of contracts.^'' 
 
 § 345. Same — Judicial decisions. — In order to come within 
 the provision of the constitution of the United States, which 
 declares that no state shall pass any law impairing the obliga- 
 tion of contracts, not only must the obligation of a contract 
 have been impaired, but it must have been impaired by some 
 act of the legislative power of the state or some provision of 
 the state constitution, and not by a decision of its judicial de- 
 partment only. The supreme court of the United States is not 
 authorized to review the judgments of the state 'courts because 
 their judgments refuse to give effect to valid contracts, or 
 because those judgments, in their effect, impair the obligation 
 of contracts. The appellate jurisdiction of the supreme court, 
 upon writ of error to a state court, on the ground that the ob- 
 ligation of a contract has been impaired, can be invoked only 
 
 Jury, 111 U. S. 716 (28:574); sa Cleveland, etc., R. R. Co. v. 
 
 Louisiana v. St. Martin's Parish, Pennsylvania, 15 Wall. 300, 326 
 
 111 U. S. 716 (28:574); Mobile v. (21:179). 
 
 Watson, 116 XT. S. 289 (29:620); 2* Bier v. McGehee, 148 U. S. 137 
 
 WolfE V. New Orleans, 103 U. S. (37:397); Mississippi & M. R. R. 
 
 358 (26:395). Co. v. McClure, 10 Wall. 511 (19: 
 
 21 Edwards v. Kearzey, 96 U. S. 997) ; Bank v. Thomas, 18 How. 
 595,611 (24:793). 384 (15:460); White v. Hart, 13 
 
 22 Murray V. Charleston, 96 U. S. Wall. 64,6 (20:685); Delma v. 
 432 (24:760); Cleveland, etc., R. Merchants Mut. Ins. Co., 14 Wall. 
 R. Co. Y. Pennsylvania, 15 Wall. 661 (20:757); Gunn v. Barry, 15 
 300, 326 (21:179). Wall. 610 (21:412), 
 
§ 348 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 297 
 
 when an act of the, legislature alleged to be repugnant to the 
 constitution of ^he United States has been decided by the state 
 court to be valid, and not when an act admitted to be valid has 
 been misconstrued by the eourt.^° 
 
 § 346. Same — Same — Change of state decision. — The con- 
 tract clause of the constitution cannot be invoked against a 
 change in the decisions of the highest court of a state.^® It is 
 now definitely settled that a contract can be impaired within 
 the meaning of this clause of the constitution, so as to give the 
 supreme court of the United States jurisdiction upon writ of 
 error to review the judgment of a state court, only by some sub- 
 sequent act of the legislative power of the state or some provi- 
 sion of the state constitution which has been upheld and given 
 effect by the state court. -^ 
 
 § 347. Same — Same. — If a contract, when made, is valid by 
 the constitution and laws of the state, as then expounded by 
 the highest authorities of the state whose duty it is to admin- 
 ister them, no subsequent action by the legislature or the judi- 
 ciary can impair its obligation.^* 
 
 § 348. The constitutional inhibition prospective only.' — The 
 inhibition of the constitution against impairing contracts is 
 wholly prospective. The states may legislate as to contracts 
 thereafter made, as they may see fit. It is only those in exist- 
 ence when the hostile law is passed that are protected from its 
 effects.'^ 
 
 25 Central Land Co. v. Laidley, S. 273 (41:157); Bacon v. Texas, 
 
 159 U. S. 103, 112 (40:91); Bank 163 U. S. 207 (41:132); National 
 
 V. Buckingham, 5 How. 317, 343 Mutual Building & Loan Asso^ v. 
 
 (12:181); Lawler v. Walker, 14 Brahan, 193 U. S. 635, 651 (48:823). 
 
 How. 149, 154 (14:364); Leigh 26 National Mutual Building & 
 
 Water Co. v. Easton, 121 U. S. 388, Loan Asso. v. Brahan, 193 U. S. 
 
 392 (30:1059); New Orleans' Wa- 635, 651 (48:823). 
 
 ter Works Co. v. Liouisiana Sugar 27 Bacon v. Texas, 163 XT. S. 207 
 
 Ref. Co., 125 U. S. 18, 30 (31:607); (41:132). 
 
 Brown V. Smart, 145 TJ. S. 454 (36: 28 Havemeyer v. Iowa County) 
 
 773); Wood v. Brady, 150 U. S. 18 3 Wall. 294 (18:38); Gelpeck v. 
 
 (37:987); Mississippi & M. R. Co. Dubuque, 1 Wall. 175 (17:520); 
 
 V. McClure, 10 Wall. 511, 515 (19: Chicago v. Sheldon, 9 Wall. 50 
 
 997); Knox v. Exchange Bank, 14 (19:594); Olcott v. Fond du Lac 
 
 Wall. 661, 665 (20:757); TJniver- County, 16 Wall. 678 (21:382). 
 
 sity v. People, 99 U. S. 309, 319 29 Edwards v. Kearzey, 96 U. S. 
 
 (25:387); Chicago Life Ins. Co. 595 (24:793); Denny v. Bennett, 
 
 V Needles, 113 V. S. 574, 587 (28: 128 U. S. 489, 503 (32:491); Mlss- 
 
 1084) ; Hanford y. Davies, 163 U. issippi & M. R. Co. v. flock, 4 Wall. 
 
298 FEDERAL PROCEDURE AT LAW. § 351 
 
 (i) No State to Emit BiiiLs of Credit. 
 
 349. Bills of credit defined. — The states are forbidden by- 
 the constitution to ' ' emit bills of credit. ' ' ^^ Bills of credit 
 are paper issued by a state, upon its faith, designed to circu- 
 late as money, and to be received and used as such in the or- 
 dinary business of life, redeemable at a future day.^^ A war- 
 rant drawn b.v the state authorities in payment of an appropri- 
 ation made by the legislature, when the warrant is payable- 
 upon presentation if there be funds in the treasury, and which 
 has been issued to an individual in payment of the debt of the- 
 state to him, is not a bill of credit or treasury warrant intended 
 to circulate as money. ''^ 
 
 § 350. Same— Defined by Chiei Justice Marshall.— " The- 
 word 'emit' is never employed in describing those contracts by 
 which a state binds itself to pay money at a future day for 
 services actually received, or for money borrowed for present 
 use; nor are instruments executed for such purposes, in com- 
 mon language, denominated 'bills of credit.' To 'emit bills of 
 credit' conveys to the mind the idea of issuing paper intended 
 to circulate through the community for its ordinary purpose, 
 as money, which paper is redeemable at a future day. This is 
 the sense in which the terms have been always understood." ^^ 
 
 (k) Bills op Attainder and Ex Post Facto Laws. 
 
 § 351. Bills of attainder and ex post facto laws. — ^Both the 
 federal and state governments are forbidden by the constitu- 
 tion to pass bills of attainder or ex post facto laws ; ^* and these 
 subjects have been treated in the chapter next preceding in the 
 discussion of the constitutional limitations upon the federal, 
 government. ^^ 
 
 177 (18:'381); Northwestern Uni- (14:30); Polndexter v. Greenhow, 
 
 versity v. People, 99 U. S. 309 (25: 114 U. S. 270, 283 (29:185) ; Hous- 
 
 387); Knox v. Exchange Bank, 12 ton & Texas Central R. Co. v. 
 
 Wall. 379 (20:287, 414); Bro-wn v. Texas, 177 U. S. 66, 103 (44:673). 
 
 Smart, 145 U. S. 454, 459 (36:773). 32 Houston & Texas Central R. 
 
 30 U. S. Const, art. 1, sec. 10. Co. v. Texas, 177 U. S. 60, 103 (44: 
 
 31 Craig V. Missouri, 4 Pet, 410 673). 
 
 (7:903); Briscoe v. Bank of Ken- 33 Craig v. Missouri, 4 Pet. 410 
 
 tucky, 11 Pet. 257 (9:709); Wood- (7:903). 
 
 ruffl V. Trapnall, 10 Ho-nr. 190, 205 34 u. S. Const, art. II. sec. 9 el. 
 
 (13:383) ; Darrington v. Branch of 3, and sec 10, cl. 1. 
 
 The Bank of Alabama, 13 Ho-w. 12 so Ante, sees. 103, 104, 155-100. 
 
§ 355 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 299' 
 
 (l) No Imposts or Duties to Be Laid by the States on Im- 
 ports OR Exports Except for Executing Inspection Laws. 
 
 § 352. The states prohibited from taxing imports and ex- 
 ports — Exception. — Correlated to those provisions of the consti- 
 tution which give the federal government power to regulate 
 commerce, and to lay and collect duties and imposts, is the 
 provision which declares that: "No state shall, without the 
 consent of congress, lay any imposts or duties on imports or 
 exports, except what may be absolutely necessary for execut- 
 ing its inspection laws." ^^ This provision is a necessary part 
 of the constitutional scheme vesting the power to regulate com- 
 merce in the general government ; and it was early held that a 
 state law imposing a tax upon imports is not only repugnant 
 to the above mentioned provision, but is also repugnant to the 
 provision giving congress the power to regulate commerce.^' 
 
 § 353. Imports and exports defined. — Within the meaning of 
 the constitution, '"imports" are articles of 'commerce, property 
 or merchandise imported into the United States from a for- 
 eign country, and "exports" are articles of commerce, prop- 
 erty or merchandise exported from the United States to a for- 
 eign country.^* 
 
 § 354. Impost defined. — "Impost," within the meaning of 
 the constitutional prohibition is a duty, custom or tax levied 
 on articles brought into the United States from a foreign coun- 
 try, or which are exported from this to a foreign country.^^ 
 
 § 355. The inhibition does not apply to interstate shipments. 
 The constitutional inhibition against the laying of duties on 
 imports and exports has no application to commerce between 
 the states; it does not apply to articles of commerce, property, 
 or merchandise brought into one state from another state. Im- 
 ports, in the constitutional sense, embrace only those goods 
 brought from a foreign country, and do not include merchan- 
 dise shipped from one state to another; and the several states, 
 
 38 TJ. S. Const, art. I, sec. 10, cl. Guano Co. v. Board of Agriculture, 
 
 2. 171 U. S. 345 (43:191); Brown v. 
 
 37 Brown v. Maryland, 12 Wheat. Houston, 114 U. S. (29:257) ; Am- 
 419 (6:678); Woodruff v. Parham, erlcan Steel & Wire Co. v. Speed, 
 8 Wall. 123 (19:382). 192 U. S. 500 (48:538). 
 
 38 Brown v. Maryland, 12 Wheat. 3s Brown v. Maryland, 12 Wheat. 
 419 (6:678); Woodruff V. Parham, 419 (6:678); Woodruff v. Par- 
 8 Wall. 123 (19:382); Patapsco ham, S Wall. 123 (19:382). 
 
300 FEDERAL PBOCEDURE AT LAW. § 357 
 
 not being controlled as to such merchandise by the prohibition 
 against the taxation of imports, have the power, when the 
 merchandise, so shipped from one state to another, has reached 
 its destination and is held for sale or use, to tax it, without 
 discrimination, like other property situated within the state is 
 taxed. This is the settled doctrine upon the subject, and has 
 been for years the basis of the taxing power in all tha states 
 of the Union.^" 
 
 § 356. Right of the importer to sell in the original packages 
 without taxation by the state. — As long as imports remain the 
 property of the importer, and he has not acted upon them in 
 such manner as to destroy their distinctive character as such, 
 the state cannot tax them either directly or indirectly. A tax 
 upon the sale of the imported article or the occupation of the 
 importer is, within the meaning of the constitution, a tax upon 
 the imported article itself.*^ Under the revenue system of this 
 country, the importer who has paid the duties imposed upon 
 his imports by the general government, has the right to sell 
 his imports in the original form or package in which they were 
 imported, free from any burden or tax imposed by the state; 
 but when the importer has sold the imported articles, or has 
 broken the original package — ^box, case or bale — or has other- 
 wise so acted upon them as to cause them to become incor- 
 porated or mixed with the general mass of property in the 
 state, the goods at once lose their distinctive character as im- 
 ports, and become from that time subject to state taxation.*^ 
 
 § 357. Same — Brown vs. Maryland. — This great and leading 
 case, it is declared by the supreme court in a late case, estab- 
 lished the following propositions : 
 
 "1. That the payment of duties to the United States gives 
 the right to sell the thing imported, and that such right to sell 
 cannot be forbidden or impaired by a state. 
 
 "2. That a tax upon the thing imported during the time it 
 retains its 'character as an import and remains the property of 
 
 40 Woodruff v. Parham, 8 Wall, ring v. Mayor of Mobile, 8 Wall. 
 123 (19:382); Brown v. Houston, 110 (19:342); May & Co. v. New 
 114 U. S. 622 (29:257); American Orleans, 178 U. S. 496 (44:1165). 
 Steel & Wire Co. v. Speed, 192 U. *2 Brown v. Maryland, 12 Wheat. 
 S. 500 (48:538). 419 (6:078); Cooli v. Pennsyl- 
 
 41 Brown v. Maryland, 12 Wlieat. vania, 97 U. S. 566 (24:1015) ; May 
 419 (6:678); Cook v. Pennsyl- & Co. v. New Orleans, 178 U. S. 
 vania, 97 U. S. 560 (24:1015); War- 496 (44:1165). 
 
§ 359 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 301 
 
 the importer, 'in his warehouse, in the original form or pack- 
 age in which it was imported,' is a duty on imports within the 
 meaning of the constitution ; and — 
 
 "3. That a state cannot, in the form of a license or otherwise, 
 tax thei right of the importer to sell, but when the importer 
 has so acted upon the goods imported that they have become 
 incorporated or mixed with the general mass of property in 
 the state, such goods have then lost their distinctive character 
 as imports, and have become from that time subject to state 
 taxation, not because they are the products of other countries, 
 but because they are property within the state in like condi-^ 
 tion with other property that should contribute, in the way of 
 taxation, to the support of the government which protects the 
 owner in his person and estate." *^ 
 
 § 358. — Same — What is the "original package? " — ^In legal 
 contemplation, and in the sense of the judicial decisions on 
 the subject, "the original package" is not the original wrapper 
 put around each separate parcel or bundle of goods at the fac- 
 tory, but is the box, ease, or bale, in which each separate parcel 
 or bundle of goods is placed by the foreign seller, manufac- 
 turer or packer, for shipment, and in which the goods imported 
 are shipped; and the moment when the box, casC;, or bale 
 reaches its destination for use or trade, and is opened for the 
 sale or delivery of the separate parcels contained in it, each 
 parcel of the goods loses its distinctive character as an import 
 and becomes property subject to taxation by the state as other 
 like property situated within its limits.** 
 
 § 359. Tax on sales of imports made by auctioneer. — ^A tax 
 laid by a state on the amount of sales made by an auctioneer, 
 is a tax on the goods sold ; and where the goods sold, for which 
 the auctioneer is required to collect and pay a tax, are im- 
 ported goods in the original package, sold by him for the im- 
 porter, the law of the state which authorizes the tax is void, 
 because repugnant to the constitutional provision inhibiting 
 the states from taxing imports and exports, and also repugnant 
 to the constitutional provision vesting congress with the power 
 to regulate commerce,*' 
 
 43 May & Co. v. New Orleans, 178 ^s Cook v. Pennsylvania, 97 U. S. 
 
 U. S. 40G (44:1165). 566, 575 (24:1015). 
 
 ** May & Co. v. New Orleans, 178 In the case here cited. Miller, 
 
 U. S. 496 (44:1165). Justice, delivering the opinion of 
 
302 
 
 FEDERAL PEOCEDUEE AT LAW. 
 
 § 360 
 
 § 360. Effect of a sale of imported articles. — Whilst import- 
 ers selling the imported articles in the original packages are 
 protected against state taxation, yet this privilege of exemp- 
 tion is not extended to the purchaser, for the reason that im- 
 
 the court, said: "The congress of 
 the United States is granted the 
 power to regulate commerce with 
 Horeign nations in precisely the 
 same language as it is that among 
 the states. If a tax assessed by a 
 state injuriously discriminating 
 against the products of a state of 
 the union is forbidden by the con- 
 stitution a similar tax against 
 :goods imported from a foreign 
 ■state is equally forbidden. 
 
 "A careful reader of the his- 
 tory of the times which immedi- 
 ately preceded the assembling of 
 the convention that framed the 
 American constitution, cannot fail 
 to discover that the need of some 
 equitable and just regulation of 
 commerce was among the most in- 
 fluential causes which led to its 
 meeting. States having fine har- 
 bors imposed unlimited taxes on 
 all goods reaching the continent 
 through their ports. The ports of 
 New York and Boston were far be- 
 hind Newport, in the state of 
 Rhode Island, in the value of their 
 imports; and that small state was 
 paying all the expenses of her gov- 
 ernment by the duties levied on 
 the goods landed at her principal 
 port. And so reluctant was she to 
 give up this advantage, that she 
 refused for nearly three years af- 
 ter the other twelve original states 
 had ratified the constitution, to 
 give It her assent. 
 
 "In granting to congress the 
 right to regulate commerce with 
 foreign nations and among the 
 several states, and with the In- 
 dian tribes, and in forbidding the 
 
 states without the consent of that 
 body to levy any tax on imports, 
 the framers of the constitution be- 
 lieved that they had sufficiently 
 guarded against the dangers of 
 any taxation by the states which 
 would interfere with the freest in- 
 terchange of commodities among 
 the people of the different States, 
 and by the people of the states 
 with citizens and subjects of for- 
 eign governments. 
 
 "The numerous cases in which 
 this court has been called on to de- 
 clare void statutes of the states 
 which iTi various ways have sought 
 to violate this salutary restriction, 
 show the necessity and value of, 
 the constitutional provision. If 
 certain states could exercise the 
 unlimited power of taxing all the 
 merchandise which passes from the 
 port of New York through those 
 states to the consumers in the 
 great west, or could tax, as has 
 been done until recently, every 
 person who sought the seaboard 
 through the railroads within their 
 jurisdiction, the constitution would 
 have failed to effect one of the 
 most important purposes for which 
 it was adopted. 
 
 "A striking instance of the evil 
 and its cure is to be seen in the re- 
 cent history of the states now com- 
 posing the German Empire. A few 
 years ago they were independent 
 states, which, though lying contig- 
 uous, speaking a common langu- 
 age, and belonging to a common 
 race, were yet without a common 
 government. 
 
 "The number and variety of 
 
'§ 362 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 
 
 303 
 
 ported merchandise, by a sale and delivery, loses its dis- 
 tinctive character as an import, and becomes incorporated 
 with the mass of property in the state, and subject to local tax- 
 ation.*" 
 
 § 361. Duty on exports defined. — A duty on exports must 
 •either be a duty levied on goods as a condition, oy by reason 
 of their exportation, or, at least, a direct tax or duty on goods 
 which are intended for exportation; and where a general tax 
 is laid on all property alike, it cannot be construed as a duty 
 ■on exports when falling upon goods not then intended for ex- 
 portation, though they should happen to be exported after- 
 wards.*^ 
 
 § 362. Cost of executing inspection laws — Exception to in- 
 hibition. — There is but one exception to the constitutional iu- 
 
 their systems of taxation and lines 
 of territorial division necessitating 
 customs officials at every step the 
 traveler took or merchandise was 
 transported, became so intolerable, 
 that a commercial, though not a 
 political union was organized, 
 ■called the German Zollvereln. The 
 great value of this became so ap- 
 parent, and the community of in- 
 terest so strongly felt in regard 
 to commerce and traffic, that the 
 first appropriate occasion was 
 Tised by these numerous principali- 
 ties to organize the common politi- 
 cal government now known as the 
 German Empire. 
 
 "While there is, perhaps, no spe- 
 cial obligation on this court to 
 defend the wisdom of the consti- 
 tution of the United States, there 
 is the duty to ascertain the pur- 
 pose of its provisions, and to give 
 them full effect when called on by 
 a proper case to do so." 
 
 *« Waring v. Mayor of Mobile, 8 
 Wall. 110, 123 (19:342). In the 
 case here cited, the court, speak- 
 ing through Clifford, Justice, said: 
 
 "Sales- by the importer are held 
 to be exempt from state taxation 
 because the importer purchases, 
 
 by the payment of a duty, a right 
 to dispose of the merchandise as 
 well as to bring it into the coun- 
 try, and because the tax, if It 
 were held to be valid, would inter- 
 cept the import, as an import, in 
 the way to become incorporated 
 with the general mass of prop- 
 erty, and would deny it the priv- 
 ilege of becoming so incorporated 
 until it should have contributed 
 to the revenue of the state. . . . 
 
 "Where the importer sells the 
 imported articles, or otherwise 
 mixes them with the general prop- 
 erty of the state by breaking up 
 the packages, the state of things 
 changes, as was said by this court 
 in the leading case, as the tax 
 then finds the articles already in- 
 corporated with the mass of prop- 
 erty by the act of the importer. 
 
 "Importers selling the Imported 
 articles in the original packages 
 are shielded from any such state 
 tax, but the privilege of exemp- 
 tion is not extended to the pur- 
 chaser, as the merchandise, by the 
 sale and delivery, loses its dis- 
 tinctive character as an import." 
 
 *7 Brown v. Houston, 114 U. S. 
 622, 635 (29:257).. 
 
304 FEDERAL PROCEDUEE AT LAW. § 365 
 
 hibition against state taxation of imports and exports. Each 
 state may levy such tax on imports and exports as ' ' may be ab- 
 solutely necessary for executing its inspection laws." The in- 
 spection tax' is an exception to the prohibition, contained in the 
 very words thereof, and without which the tax would have 
 been within the prohibition. It is a rule of interpretation that 
 the exception of a particular thing from the general words of a 
 constitutional provision or statute, proves that, in the opinion 
 of the law-giver, the thing excepted would be within the gen- 
 eral clause had the exception not been made.''* 
 
 (m) Tonnage Duties. 
 
 § 363. The states prohibited from levying tonnagie tax. — The 
 
 constitution declares: "No state shall, without the consent of 
 congress, lay any duty of tonnage ; " *° and all state statutes 
 in contravention of this prohibition are absolutely null and 
 void.^" 
 
 § 364. Tonnagie defined. — Tonnage, in the United States law 
 of commerce and navigation, is a vessel's entire internal cub- 
 ical capacity, expressed in tons of one hundred cubic feet each, 
 to be estimated and ascertained in the manner and by the rules 
 prescribed by the act of congress.^^ 
 
 § 365. Tonnage tax defined. — "A duty of tonnage within 
 the meaning of the constitution is a charge upon a. vessel, ac- 
 cording to its tonnage, as an instrument of commerce, for 
 entering or leaving a port, or navigating the public waters 
 of the country. " ^^ It has also been held that a statute of the 
 
 48 Brown V. Maryland, 12 Wheat Co. v. Tinker, 94 U. S. 238 (24: 
 
 420 (6:678); Turner v. Maryland, 118); Southern Steamship Co. v. 
 
 107 U. S. 38 (27:370). See note Masters of Port of New Orleans, 
 
 to Turner v. Maryland, supra, 6 Wall. 131 (18:749). 
 containing analysis of state In- si 13 XJ. S. Stat, at L. ch. 8Z, sec. 
 
 spection laws. 3, pp. 69-72, U. S. Rev. Stat. sec. 
 
 40 U. S. Const, art. I, sec. 10, 4153 ; Cox v. Lott, 12 Wall. 204, 220 
 
 el. 3. (20:370); Inman Steamship Co. v. 
 
 50 Cox V. Lott, 12 Wall. 204 (20: Tinker, 94 U. S. 238 (24:118). 
 370); Mobile Trade Co. v. Lott, 62 Huse v. Glover, 119 V. S. 543 
 
 12 Wall. 204, 220 (20:376); Peete (30:478), opinion by Field, Jus- 
 
 V. Morgan, 19 Wall. 581 (22:20i;j ; tice; Cox v. Lott, 12 Wall. 204, 220 
 
 Cannon V. New Orleans, 20 Wall. (20:370); Mobile Trade Co. v. 
 
 522 (22:417); Inman Steamship Lott. 12 Wall. 221 (20:376) ; Inman 
 
§ 366 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 305 
 
 state of Louisiana, providing that the master and wardens of 
 the port of New Orleans shall be entitled to demand and re- 
 ceive, in addition to other fees, the sum of five dollars, whether 
 called on to perform any service or not, from every vessel ar- 
 riving in that port, imposed a tonnage tax.°^ In the course of 
 the opinion in that case, it was said: "We think, also, that the 
 tax imposed 'by the Act of Louisiana is, in the fair sense of the- 
 word, a duty on tonnage. In the most obvious and general 
 sense it is true, those words describe a duty proportioned tO' 
 the tonnage of the vessel; a certain duty on each ton. But it 
 seems plain that, taken in this restricted sense,, the constitu- 
 tional provision would not fully accomplish its intent. The 
 general prohibition upon the states against levying duties on 
 imports and exports, would have been ineffectual if it had not 
 been extended to duties on the ships which serve as the vehicles 
 of conveyance. This extension was, doubtless, intended by the 
 prohibition of any duty of tonnage. It was not only a pro rata 
 tax which was prohibited, but any duty on the ship, whether 
 a fixed sum on its whole tonnage, or a sum to be, ascertained 
 by comparing the amount of tonnage with the rate of duty. Iq 
 this view of the case, the levy of the tax in question is ex- 
 pressly prohibited." °* 
 
 § 366. The prohibition applies to vessels employed in local 
 commerce. — The constitutional inhibition against state tonnage 
 tax extends to all ships and vessels entitled to the privileges 
 
 Steamship Co. v. Tinker, 94 U. S. in his Law Dictionary, published 
 238 (24:118); Cannon v. New Or- In 1708, thus defines it: 'Ton- 
 leans, 20 Wall. 557 (22:417). nage (tonnagium) is a custonj or 
 
 53 Steamship Co. v. Port Ward- import paid to the King for mer- 
 
 ens, 6 Wall. 31, 35 (18:749). chandise carried out or brought 
 
 5* Steamship Co. v. Port Ward- In ships, or such like vessels, ac- 
 
 ens, supra. cording to a certain rate upon 
 
 "Tonnage, In our law, Is a ves- every ton, and of this you may 
 sel's 'Internal cubical capacity in read in the Statutes of 12 Edw. 
 tons of one hundred cubic feet IV, ch. 3; 6 Hen. VIII, ch. 14.' 
 each, to be ascertained' in the The vital principle of such a tax 
 manner prescribed by congress, or duty Is that it is Imposed, what- 
 Act of May 6, 1864, 13 Stat, at L. ever the subject, solely according^ 
 70, 72; R. S. 804, sec. 4153. 'Ton- to the rule of weight, either as. 
 nage duties are duties Upon ves- to the capacity to carry, or the' 
 sels In proportion to. their ca- actual weight of the thing itself." 
 pacity.' The term was formerly Swayne, Justice, in Inman Steam- 
 applied to merchandise. Cowel, ship Co. v. Tinker, supra. 
 
 20 
 
306 
 
 FEDERAL PEOCEDURE AT LAW. 
 
 § 368 
 
 of ships and vessels employed in the coasting trade, whether 
 employed in commercial intercourse between ports in different 
 states, or between different ports and places in the same state.'^ 
 
 § 367. The prohibition does not extend to property tax on 
 vessels. — Ships and vessels owned by individuals and belonging 
 to the commercial marine are the private property of their 
 owners, and are not instruments or means of the federal gov- 
 ernment, and are within the taxing power of the states; and 
 an ad valorem tax levied by a state on such ships and vessels, 
 as property, owned by citizens of the state is not within the 
 constitutional prohibition against the laying of duties of ton- 
 nage.^" 
 
 § 368. Charges for the use of local aids to commerce. — 
 Wharfage. — A reasonable compensation charged for the use of 
 artificial facilities and local aids to trade and commerce, and 
 conveniences furnished and assistance rendered to ships and 
 vessels, is not a tonnage tax ; and, therefore, wharfage, which is 
 a charge against a vessel for using or lying at a wharf or land- 
 ing, is not within the constitutional prohibition against the 
 
 55 Cox V. Lott, 12 Wall. 204 (20: 
 370) ; Mobile Trade Co. v. Lott, 12 
 Wall. 221 (20:376). 
 
 66 Wheeling, Parkersburg and 
 Cincinnati Transportation Co. v. 
 City of Wheeling, 98 U. S. 273, 285 
 (25:412); Cox v. Lott, 12 Wall. 
 204 (20:370); Mobile Trade Co. 
 V. Lott, 12 Wall. 221 (20:376). 
 
 "Power to Impose taxes for le- 
 gitimate purposes resides in the 
 states as well as in the United 
 States; but the states cannot, 
 without the consent of congress, 
 lay any duty of tonnage, nor can 
 they levy any imposts or duties 
 on imports or exports except what 
 may be absolutely necessary for 
 executing their inspection laws, 
 as without the consent of congress 
 they are prohibited from exercis- 
 ing -^ny such power. Outside of 
 these prohibitions, the power of 
 the state extends to all objects 
 within their sovereign power, ex- 
 
 cept the means and instruments 
 cf the federal government. 
 
 "Taxes levied by a state upon 
 ships or vessels as instruments 
 of commerce and navigation are 
 within the clause of the consti- 
 tution which prohibits the states 
 from le^'ying any duty of tonnage 
 without the consent of congress; 
 and It makes no difference 
 whether the ships or vessels taxed 
 belong to the citizens of the state 
 which levies the tax or to the citi- 
 zens of another state, as the pro- 
 hibition is general, withdrawing 
 altogether from the states the 
 power to lay any duty of tonnage 
 under any circumstances, without 
 the consent of congress. . . . 
 
 "Tonnage duties on ships by the 
 states are expressly prohibited, 
 but taxes levied by a state upon 
 ships or vessels owned by citizens 
 of the state as property, based on 
 a valuation of the same as prop- 
 
§ 370 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 307 
 
 states laying tonnage duties, although the rates of wharfage 
 charged are graduated by the size or tonnage of the vessel.^^ 
 
 § 369. Same — Same. — A charge for services rendered, or for 
 conveniences provided, is in no sense a tax or duty. It is not a 
 hindrance or impediment to free navigation. The prohibition 
 of the state against the imposition of a duty of tonnage was 
 designed to guard against local hindrances to trade and car- 
 riage by vessels, not to relieve them from liability to claims 
 for assistance rendered and facilities furnished to trade and 
 commerce. It is a tax or duty that is prohibited; something 
 imposed by virtue of sovereignty, not claimed in right of pro- 
 prietorship. "Wharfage is of the latter character. Providing 
 a wharf to which vessels may make fast, or at which they may 
 conveniently load or unload, is rendering them a service. °' The 
 exaction of tolls by the state, from vessels passing through 
 locks constructed by the state in a navigable river, is but a 
 compensation for the use of artificial aids to commerce, con- 
 structed for the improvement of navigation, and not an impost 
 upon the navigation of the stream.^' 
 
 § 370. Same — Same — What is not wharfage. — ^A tax which 
 is, by its terms, due from all vessels arriving and stopping in 
 a port, without regard to the pla,ce where they may stop, 
 whether it be in the channel of the stream, or out in the bay, 
 or landed at a natural river bank where there are no artificial 
 facilities or constructions maintained as local aids to commerce, 
 cannot be treated as a compensation for the use of a wharf; 
 and an ordinance of the city of New Orleans which imposes 
 upon all steamboats which shall moor or land in any part of the 
 port of New Orleans certain levee fees measured by the ton- 
 nage of the vessel is a tonnage tax within the meaning of the 
 
 erty, are not within the prohibi- v. Keokuk, 95 U. S. 80, 89 (24: 
 
 tion, for the reason that the pro- 376); Northwestern Union Packet 
 
 hibition, when properly construed, Co. v. St. Louis, 100 TJ. S. 423, 430 
 
 does not extend to the investments (25:688); Huse v. Glover, 119 U. 
 
 of the citizens in such structures." S. 543, 550 (30:487); Packet Co. 
 
 •Clifford, Justice, in Wheeling, v. Cattletsburg, 105 U. S. 559 (26: 
 
 Parkersburg & Cincinnati Trans- 1169) ; Vicksburg v. Tobin, 100 U. 
 
 portation Co. v. City of Wheeling, S. 430 (25:690). 
 98 U. S. 273, 285 (25:412). ss packet Co. v. Keokuk, 95 U. S. 
 
 57 Transportation Co. v. Park- 80 (24:377). 
 ersburg, 107 V. S. 691 (27:584); 69 Huse v. Glover, 119 U. S. 543, 
 
 Keokuk Northern Line Packet Co. 550 (30:487). 
 
308 
 
 PEDERAli PKOCEDURE AT LAW. 
 
 § 371 
 
 provision of the federal constitution inhibiting the states from 
 levying any tonnage tax, and is, therefore, void.'" 
 
 § 371. Tonnage tax cannot be levied to defray cost of execut- 
 ing quarantine regulations. — The power to establish and exe- 
 cute quarantine laws and regulations resides in the states, and 
 has not been surrendered to the general government. The 
 source of this power is in the acknowledged right and impera- 
 
 Orleans, 20 
 
 «o Cannon v. New 
 "Wall. 577 (22:417). 
 
 In deciding the case here cited, 
 holding the ordinance of the City 
 of New Orleans void, as being in 
 conflict with the constitutional in- 
 hibition, Mr. Justice Miller, deliv- 
 ering the opinion of the court, 
 said: 
 
 "We are of opinion that, upon 
 the face of the ordinance itself, 
 as applied to the recognized con- 
 dition of the river and its banks 
 within the city, the dues here 
 claimed cannot be supported as a 
 compensation for the use of the 
 city's wharves, but that It is a tax 
 upon every vessel which stops, 
 either by landing or mooring, in 
 the waters of the Mississippi 
 river within the city of New Or- 
 leans, for the privilege of so land- 
 ing or mooring^ In this v^ew of 
 the subject, as the assessment of 
 the tax is measured by the ton- 
 nage of the vessel, it falls directly 
 within the prohibition of the con- 
 stitution, namely: 'That no state 
 shall, without the consent of con- 
 gress, lay any duty of tonnage.' 
 Whatever more general or more 
 limited view may be entertained 
 of the true meaning of this clause, 
 it is perfectly clear that a duty 
 or tax or burden imposed under 
 the authority of the state, which 
 is, by the law imposing it, to be 
 measured by the cai)acity of the 
 vessel, and is in its essence a con- 
 
 tribution claimed for the privilege 
 of arriving and departing from a 
 port of the United States, is with- 
 in the prohibition. ... In saying 
 this we do not understand that 
 this principle interposes any hin- 
 drance to the recovery from any 
 vessel landing at a wharf or pier, 
 owned by an individual or by a 
 municipal or other corporation, a 
 just compensation for the use of 
 such property. It is a doctrine 
 too well settled, and a practice 
 too common and too essential to 
 the interests of commerce and 
 navigation, to admit of a doubt 
 that for the use of such struc- 
 tures, erected by individual en- 
 terprise, and recognized every- 
 where as private property, a rea- 
 sonable compensation can be ex- 
 acted. And It may be safely ad- 
 mitted, also, that it is within the 
 power of the state to regulate this 
 compensation, so as to prevent 
 extortion, a power which is often 
 very properly delegated to the 
 local municipal authority. 
 
 "Nor do we see any reason why, 
 when a city or other municipality 
 Is the owner of such structures, 
 built by its own money, to assist 
 vessels landing within its limits 
 in the pursuit of their business, 
 the city should not be allowed to 
 exact and receive this reasonable 
 compensation as well as individ- 
 uals." 
 
§ 373 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 309 
 
 tive duty of the state to provide for the preservation and pro- 
 tection of the health of its people, and although the power, when 
 exercised, may in a greater or less decree affect commerce, yet 
 such laws passed in the exercise of this power are not enacted 
 for the purpose of affecting commerce. They are enacted for 
 the sole purpose of preserving the public health, and if they 
 injuriously affect commerce, congress, under the powe;r to reg- 
 ulate it, may control the operation of such laws. Quarantine 
 laws of necessity operate on vessels engaged in commerce, and 
 may cause delay or inconvenience to such vessels and the com- 
 merce in which they are engaged, but they are still lawful and! 
 valid when they do not contravene any constitutional provi- 
 sion, or any constitutional enactment of congress. But while 
 the state has the power to establish, maintain and executci quar- 
 antine regulations, and to raise revenue necessary for that 
 purpose, it is also true that no state can levy a tonnage tax 
 upon ships and vessels entering its harbors in the pursuit of 
 commerce, for the purpose of raising a revenue to meet the ex- 
 penses of its quarantine regulations."^ 
 
 § 372. Whether a charge is wharfage or a tonnage duty is a 
 question of fact and law. — "Wharfage is a charge for the use of 
 a wharf, made by the owner thereof by way of rent or com- 
 pensation; while a duty of tonnage is a tax or duty charged 
 for the privilege of entering or loading or lying in a port or 
 harbor. Whether a charge is wharfage or a duty of tonnage, 
 is a question, not of intent, but of fact and law ; of fact, whether 
 it is imposed for the use of a wharf, or for the privilege of 
 entering a port; of law, whether according as the fact is shown 
 to exist, it is wharfage or a duty of tonnage."^ 
 
 § 373. Whether wharfage is reasonable must be determined 
 by the local law, — ^It is a general rule of law that charges for 
 the use of a public wharf must be reasonable ; but this rule is 
 established by thte local municipal law, and by that law the 
 question, whether wharf charges are reasonable or extortion- 
 ate, must be determined. The reasonableness of wharf charges 
 does not present a federal question, and a circuit court of the 
 United States has no jurisdiction to entertain a bill in equity 
 
 81 Peete v. Morgan, 19 Wall. 581 «" Transportation Co. v. Park- 
 
 (22:201). crsburg, 107 U. S. 691 (27:584). 
 
310 FEDERAL PROCEDURE AT LAW. § 374: 
 
 for relief against exorbitant wharfage, as a case arising under 
 the constitution and laws of the United States."^ 
 
 § 374. Purpose and design of the constitutional prohibition 
 against state tonnage duties. — The intent, purpose and design 
 of the constitutional provision, prohibitng the states from lay- 
 ing tonnage duties, were to guard against local hindrances to 
 commerce, trade and carriage by ships and vessels, and not to 
 relieve them from liability to claims for assistance rendered, 
 and facilities and local aids furnished to trade and commerce. 
 It is a tax or duty that is prohibited; something imposed by 
 virtue of sovereignty, not claimed in right of proprietorship. 
 Wharfage is of the latter character. Providing a wharf to 
 which vessels may make fast, or at which they may conven- 
 iently load or unload, is rendering them a service. The char- 
 acter of the service is the same whether the wharf is built and 
 offered for use by a state, a municipal corporation or a private 
 individual; and when compensation is demanded for the use 
 of the wharf, the demand is an assertion, not of sovereignty, 
 but of a right of property.** 
 
 «3 Transportation Co. v. Park- 6^ Keokuk Northern Line Packet 
 
 ersburg, 107 U. S. 691 (27:584); Co. v. Keokuk, 95 U. S. 80 (24: 
 
 Packet Co. v. Aiken, 121 U. S. 444 377). 
 (30:978). 
 
CHAPTER VII. 
 
 THE FEDERAL JUDICIARY. 
 
 ] 375. Judicial power requisite to 
 the existence of govern- 
 ment. 
 
 376. The vital principle virhich 
 
 supports written consti- 
 tutions — The duty of the 
 judiciary. 
 
 377. The legislative, executive 
 
 and judicial departments 
 of government to he kept 
 separate. 
 
 378. The confederacy under the 
 
 articles of confederation 
 was a league of sovereign 
 states and not a govern- 
 ment. 
 
 379. Same — No judiciary under 
 
 the confederacy. 
 
 380. Same — The confederation 
 
 had no power to enforce 
 its laws. 
 
 381. The federal government 
 
 created and invested with 
 full judicial power. 
 
 382. The limits of the judicial 
 
 power defined in the con- 
 stitution, but the power 
 not distributed by it. 
 
 383. Same — Limits of the grant 
 
 of judicial power. 
 
 384. Same — Constitutional dis- 
 
 tribution of judicial pow- 
 er to the supreme court. 
 
 385. The constitution requires 
 
 the judicial power to be 
 vested in a system of fed- 
 eral courts — Not in the 
 state courts. 
 
 386. Same — "Inferior courts" of 
 
 the United States. 
 
 § 387. Constitutional provision se- 
 curihg the independ- 
 ence of the federal ju- 
 diciary. 
 
 388. The constitution manda- 
 
 tory upon congress to or- 
 ganize the federal ju- 
 diciary. 
 
 389. Same — The federal judi- 
 
 ciary organized by con- 
 gress under the original 
 judiciary act. 
 
 390. Same — Creation of the Uni- 
 
 ted States circuit courts 
 of appeals. 
 
 391. Courts constituting the fed- 
 
 eral judicial system. 
 
 392. Same — Inferior courts not 
 
 inferior in the common 
 law sense. 
 
 393. The jurisdiction of the fed- 
 
 eral judiciary is co-ex- 
 tensive with the legisla- 
 tive power. 
 
 394. The federal judiciary nec- 
 
 essary to enforce the 
 constitutional limitations 
 upon the states. 
 
 395. The federal judiciary nec- 
 
 essary to restrain fed- 
 eral legislation within 
 constitutional limits. 
 
 396. The federal judiciary nec- 
 
 essary to maintain the 
 supremacy of the federal 
 constitution and the au- 
 thority of the federal 
 government. 
 
 397. The federal judiciary a 
 
 peaceful means of remov- 
 
312 
 
 FEDERAL PEOCEDUEE AT LAW. 
 
 § 375 
 
 ing obstructions to inter- 
 state commerce. 
 § 398. Relation of the federal ju- 
 diciary to the national 
 peace. 
 399. Relation of the federal ju- 
 
 diciary to domestic tran- 
 quility and peace. 
 § 400. Territorial courts not 
 courts of the United 
 States. 
 401. The court of claims a spe- 
 cial court. 
 
 § 375. Judicial power requisite to the existence of govern- 
 ment. — The judicial power is a co-ordinate constituent princi- 
 ple of all just civil government; and, in every well-constituteid 
 government, the judicial power must be co-extensive with the 
 legislative power, and vested in a separate and distinct judicial 
 department, capable of receiving and exercising jurisdiction in 
 all cases arising under its constitution and laws, and of decid- 
 ing all judicial questions arising out of them, and vested with 
 the power of enforcing its judgments and decrees, whoever 
 may be parties.^ 
 
 1 Cohens v. Virginia, 6 Wheat. 
 264 (5:257); Osborne v. Bank, 9 
 Wheat. 738 (6:204); Federalist, 
 Nos. XLVI and LXXX; 1 Spirit 
 of Laws (Rev. Ed.) 151. 
 
 Montesquieu, in The Spirit of 
 Ijaws, says: "In every govern- 
 ment there are three sorts of pow- 
 er: the legislative; the executive 
 in respect to things dependent on 
 the law of nations; and the ex- 
 ecutive in regard to matters that 
 depend on the civil law. 
 
 "By virtue of the first, the 
 prince or magistrate enacts tempo- 
 rary or perpetual laws, and 
 amends or abrogates those that 
 have been already enacted. By 
 the second, he makes peace or 
 war, sends or receives embassies, 
 establishes the public security, 
 and provides against invasions. 
 By the third, he punishes crim- 
 inals, or determines the disputes 
 that arise between individuals. 
 The latter we shall call the ju- 
 diciary power, and the other sim- 
 
 ply the executive power of the 
 state. 
 
 "The political liberty of the 
 subject is tranquility of mind aris- 
 ing from the opinion each person 
 has of his safety. In order to 
 have this liberty, it is requisite 
 the government be so constituted 
 as one man need not be afraid of 
 another. 
 
 "When the legislative and ex- 
 ecutive powers are united in the 
 same person, or in the same body 
 of magistrates, there can be no 
 liberty; because apprehensions 
 may arise, lest the same monarch 
 or senate should enact tyrannical 
 laws, to execute them in a tyran- 
 nical manner. 
 
 "Again, there is no liberty, if 
 the judiciary power be not sep- 
 arated from the legislative and 
 executive. Were it joined with 
 the legislative, the life and lib- 
 erty of the subject would be ex- 
 posed to arbitrary control; for the 
 judge would then be the legisla- 
 
•§ 378 THE FEDERAL JUDICIAEY. 313 
 
 § 376. The vital principle which supports written constitu- 
 tions — The duty of the judiciary. — The vital principle in poli- 
 tical science which supports all written constitutions, and 
 -which is essential to the existence of governments founded on 
 them is that: A nation or political community in adopting a 
 written constitution intends that it shall form and constitute 
 the fundamental and paramount law of the land, and that all 
 acts of the legislature repugnant thereto shall be absolutely 
 null and void, and wholly inoperative for any purpose what- 
 ever; and the judicial department, as well as the other depart- 
 ments of the government, is bound by the constitution ; and, it 
 being the, special province and duty of the courts to interpret 
 •and declare the law, the judiciary is bound, in all cases where 
 •a statute conflicts with the constitution, to pronounce such stat- 
 ute void.^ 
 
 § 377. The legislative, executive and judicial departments of 
 Ifovernment to be kept separate. — The legislative, executive and 
 judicial departments of government ought to be kept separate 
 and distinct, and each confided to a separate magistracy. The 
 assembling of the whole power of these three departments, or 
 any two of them, in the same hands, is subversive of the funda- 
 mental principles of free government. There can be no liberty 
 under a government so constituted. But this principle is not 
 violated by the trial of impeachments before the upper house 
 of the legislature.^' 
 
 § 378. The confederacy under the articles of confederation 
 was a league of sovereign states and not a government. — ^The 
 "confederacy" under the articles of confederation was not a 
 government, but "a league of friendship" of sovereign states, 
 "for their common defense, the security of their liberties, and 
 their mutual and general welfare," in which each state re- 
 tained its sovereignty, freedom and independence, and every 
 
 tor. Were it joined to the execu- the public resolutions, and of try- 
 
 tive power the judge might be- ing the causes of individuals." 1 
 
 have with violence and oppres- Spirit of Laws (Rev. Ed.) 151, 
 
 sion. 152. 
 
 "There would be an end of ev- 2 Marbury v. Madison, 1 Cranch, 
 
 erything were the same man or 137 (2:60); Federalist, No. 
 
 the same body, whether of the LXXVIII. 
 
 nobles or of the people, to exer- a Federalist, Nos. XLVI and 
 
 cise those three powers, that of XLVII; 1 Spirit of Laws (Rev. 
 
 enacting laws, that of executing Ed.) book XI, pp. 149-182. 
 
314 FEDERAL PEOCEDURE AT LAW. § 380^ 
 
 power, jurisdiction, and right, which was not by the confedera- 
 tion expressly delegated to the United States in congress as- 
 sembled. The confederation had no power to legislate for the 
 individual citizens of the country, but only for the states in 
 their corporate or political capacity, and the concurrence of 
 thirteen distinct sovereign wills was requisite for the full and 
 complete execution of every important measure enacted by con- 
 gress.* 
 
 § 379. Same — No judiciary under the confederation. — The 
 Articles of Confederation vested in congress the power of 
 (1) appointing courts for the trial of piracies and felonies; 
 committed on the high seas and establishing courts for receiv- 
 ing and determining finally appeals in all cases of capture,^ 
 and (2) of deciding in the last resort on appeal all disputes be- 
 tween two or more states concerning boundary, jurisdiction 
 or any other cause whatever.* This was the exteint of the 
 judicial power of the United States under that instrument,. 
 and the want of a federal judiciary has been declared to be the 
 crowning defect of the confederation.'' 
 
 § 380. Same — The confederation had no power to enforce 
 its laws, — The essential principle of government is the power 
 
 * Articles of Confd. arts. II and gress of ambassadors, deputed to- 
 ll I, 8 Fed. Stat. Anno. 7, 8; Fed- deliberate on their common con- 
 eralist, Nos. XV and XVI; Gib- oerns, and to recommend meas- 
 bons V. Ogden, 9 Wbeat. 1-240 ures of general utility, into a 
 (6:23, 81). legislature, empowered to enact 
 
 In Gibbons v, Ogden, supra, laws on the most interesting sub- 
 Chief Justice Marshall said: jects, the whole character in 
 
 "As preliminary to the very which the states appear, under- 
 able discussions of the constitu- went a change, the extent of 
 tion, which we have heard from which must be determined by a 
 the bar, and as having some influ- fair consideration of the instru- 
 ence on its construction, reference ment by which that change was; 
 has been made to the political sit- effected." 
 
 nation of these states, anterior to s Articles of Confd. art. IX, 8 
 
 its formation. It has been said Fed. Stat. Anno. 11; Penhallow v. 
 
 that they were sovereign, were Doane, 3 Dall. 54 (1:508); Doane 
 
 completely independent, and were v. Penhallow, 1 Dall. 218 (1:108). 
 connected with each other only by « Articles of Confd. art. IX, 8. 
 
 a league. This is true. But when Fed. Stat. Anno. 11; Federalist, 
 
 these allied sovereigns converted No. VII. 
 their league into a government, ^ Federalist, No. XXII. 
 
 when they converted their con- 
 
§ 381 THE FEDERAL JUDICIARY. bl5' 
 
 to make and enforce laws. The only way in which the enforce- 
 ment of laws can be effectuated is either (1) by the orderly 
 and peaceful methods of judicial power, exercised through a 
 duly organized judicial department of government, or (2) by 
 force of arms. The confederacy did not possess the power to 
 proceed in either way, and its measures amounted "to nothing 
 more than advice or recommendations;" and while the league 
 of states, sustained by the spirit of patriotism, was competent 
 to successful revolution, yet, as a civil government, it was 
 doomed to dismal failure.' 
 
 § 381. The federal government created and invested with 
 full judicial power. — When "that best oracle of wisdom, ex- 
 perience," had shown the "insufficiency of the * * * eon- 
 federation to the preservation of the Union," and its destitu- 
 tion of "energy" had brought the country to "almost the 
 last stage of national humiliation, ' ' " the people of the United 
 States, acting, not as one consolidated community, but as the 
 people of the states, each respectively, assembled in convention 
 in their several states,^" "in order to form a more perfect union, 
 establish justice, insure domestic tranquility, provide for the 
 common defense, promote the general welfare, and secure the 
 blessings of liberty to" themselves and their "posterity," 
 
 8 Federalist, Nos. XV and XXII. vention, by congress, and by the 
 
 9 Federalist, No. XV. state legislatures, the instrument 
 
 10 McCulloch V. Maryland, 4 was submitted to the people. They 
 Wheat. 316, 403 (4:579, 600). In acted upon it in the only manner 
 the opinion in this case Chief Jus- in which they can act safely, ef- 
 tice Marshall said: "The conven- fectively, and wisely, on such a 
 tion which framed the constitu- subject, by assembling in conven- 
 tion was indeed elected by the tion. It is true, they assembled in 
 state legislatures. But the instru- their several states — and where 
 ment, when it came from their else should they have assembled? ' 
 hands, was a mere proposal, with- No political dreamer was ever 
 out obligation, or pretensions to wild enough to think of breaking 
 it. It was reported to the then down the lines which separate the 
 existing congress of the United states, and of compounding the 
 States, with a request that it American people into one common 
 might ' be submitted to a conven- mass. Of consequence, when they 
 tion of delegates, chosen in each act, they act in their states. But 
 state by the people thereof, under the measures they adopt do not, 
 the recommendation of its legis- on that account, cease to be the 
 lature, for their assent and rat- measures of the people them- 
 ification.' This mode of proceed- selves, or become the measures of 
 ing was adopted; and by the con- the state governments." 
 
316 FEDERAL PKOCEDUEE AT LAW. § 383 
 
 ordained and established the federal constitution ; " and by the 
 adoption of that instrument, the league of states was displaced, 
 and a complete and symmetrical federal government was created 
 and established,^^ with legislative, executive and judicial depart- 
 ments ; ^^ and this government, so created, was, by the constitu- 
 tion, granted full judicial power, commensurate with all its pos- 
 sible needs, and sufficient for the execution of the great powers 
 of government vested in it, and the enforcement of the limita- 
 tions imposed upon the states by the creative instrument.^* 
 
 § 382. The limits of the judicial power defined in the consti- 
 tution, but the power not distributed by it. — The limits of the 
 judicial power of the United States are defined in the federal 
 •constitution; but that instrument did not, except in a few 
 enumerated instances, applicable exclusively to the supreme 
 court, distribute that judicial power, nor provide the detailed 
 regulations for its appropriate exercise, devolving that duty 
 •on congress, in whom was vested,' by express constitutional 
 grant, the power to make all laws which shall be necessary and 
 proper for carrying into execution all the powers vested by the 
 ■constitution in the government of the United States.^^ 
 
 § 383. Same — Limits of the grant of judicial power. — The 
 ■constitutional grant of judicial power to the United States is 
 that : ' ' The judicial powers 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, or other public 
 ministers, and consuls; to all cases of admiralty and maritime 
 
 11 Preamble to Federal Const. Peck, 6 Crancli, 87 (3:162); Able- 
 
 12 Gibbons v. Ogden, 9 Wheat. man v. Bootli, 21 How. 506, 526 
 1-241 (6:23, 81). (16:169) ; U. S. v. Tarble, 13 Wall. 
 
 13 Martin v. Hunter's Lessees, 1 379, 413 (20:597); Re Debs, 158 
 Wheat. 304 (4:97); Georgia v. U. S. 564, 600 (39:1093); U. S. 
 Stanton, 6 Wall. 50, 78 (18:721). Const, art. III. 
 
 14 Cohens v. Virginia, 6 Wheat. is Rhode Island v. Massachu- 
 264 (5:257); Martin v. Hunter's setts, 12 Pet. 657, 721, 722 (9: 
 Lessees, 1 . Wheat. 304 (4:97); 1233, 1259); Sheldon v. Sill, 8 
 Dartmouth College v,. Woodward, How. 441, 449 (12:1147, 1151); 
 4 Wheat. 518 (4:629); McCuUoch Gary v. Curtis, 3 How. 235, 245 
 V. Maryland,. 4 Wheat. 316 (4: (11:576, 581) ; Martin v. Hunter's 
 579); Gibbons v. Ogden, 9 Wheat. Lessees, 1 Wheat. 304, 381 (4:97, 
 1 (6:23); Brown v. Maryland, 12 116); Smith v. Jackson, 1 Paine, 
 Wheat. 419 (6:678); Fletcher v. 453, Fed. Cas. No. 13,064, 
 
§ 384 THE FEDERAL JUDICIARY. 317 
 
 jurisdiction; to controversies to which the United States shall 
 be a party; to controversies between two or more states; be- 
 between a state and citizens of another state; between citizens 
 of different states; between citizens of the same state claim- 
 ing lands under grants of different states ; and between a state 
 or the citizens thereof, and foreign states, citizens, or sub- 
 jects."" And a further limitation is placed upon the power 
 by the eleventh amendment which declares that : ' ' The judicial 
 power of the United States shall not be construed to extend to 
 any suit at law or in equity, commenced or prosecuted against 
 one of the United States by citizens of another state, or by citi- 
 zens or subjects of any foreign state." " 
 
 § 384. Same — Constitutional distribution of judicial power 
 to the supreme court. — The constitution distributes a portion 
 of the judicial power to the supreme court, declaring that in cer^ 
 tain enumerated classes of cases its jurisdiction shall be origi- 
 nal, and in others appellate. In the second section of the third 
 article, it is declared that: "In all cases affecting ambassadors, 
 other public ministers and consuls, and those in which a state 
 shall be a party, the supreme court shall have original juris- 
 diction. In all other cases before mentioned, the supreme 
 court shall have appellate jurisdiction, both as to law and fact, 
 with such exceptions, and under such regulations as the con- 
 gress shall make." 
 
 It is not within the power of congress to vest in the supreme 
 court original jurisdiction in other cases than those specified 
 in the constitutional provision just quoted, although such cases 
 be within the general grant of judical power.^* In cases aris- 
 ing under the constitution, laws and treaties of the United 
 States, the jurisdiction of the supreme court is appellate only ; 
 this is fixed by the distributive clause of the constitution. Aud 
 although a state may be a party to a case which arises under 
 the constitution, or a law, or a treaty of the United States, yet 
 the jurisdiction of the supreme court in such case is appellate 
 and not original. "When the framers of the constitution de- 
 clared, in the distributive clause that the jurisdiction shall be 
 original in cases where a state shall be a party, and that it 
 
 "U. S. Const, art. III. 137 (2:60); Ex parte Yerger, 8 
 
 "XI art. of Amendt., Wall. 96, 97 (19:336). 
 
 18 Marbury v. Madison, 1 Cranch, 
 
318 FEDERAL PROCEDURE AT LAW. § 385 
 
 shall be appellate in all eases arising under the constitution or 
 laws, they designed to include in the first class those cases in 
 which jurisdiction is given because a state is a party, and to 
 include in the second class those cases in which jurisdiction 
 is given because they arise under the constitution or laws. 
 And, hence, it is, that writs of error lie from the supreme court 
 of the United States, to the highest courts of the state, in cases 
 of the second class, although the state itself may be a party.^* 
 
 § 385. The constitution requires the judicial power to be 
 vested in a system of federal courts — Not in the state courts. — 
 It is a principle of governmental science of universal applica- 
 tion, that every government ought to contain within itself the 
 means necessary to the full and complete execution of its own 
 laws and the effectual enforcement of its own authority, with- 
 out the aid, and free from the interference or control of all other 
 governments, and courts of justice are the means most usually 
 employed for the attainment of these ends; every government 
 must repose upon its own courts, and not upon the courts of 
 another government.^" And, accordingly, the federal constitu- 
 tion expressly requires that the judicial power of the United 
 States shall be vested in a system of courts established and or- 
 ganized by congress, pursuant to the authority vested in it by 
 that instrument, and no part of that judicial power can be 
 vested in the courts of the several states. ^'^ The language of 
 the constitution upon the point is that: "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. ' ' ^^ But congress may authorize the ju- 
 dicial officers of the several states to exercise such powers and 
 to perform such duties as are incidental to the judicial power, 
 rather than a part of it, such as the power to take affidavits, 
 to arrest and commit for trial offenders against the laws of 
 the United States, the naturalization of aliens, and to arrest 
 deserting seamea and deliver them on board their vessels.^^ 
 
 18 Cohens v. Virginia, 6 Wheat. ton v. Moore,' 5 Wheat. 1, 27 (5: 
 
 264 (5:257). 19, 25); Robertson v. Baldwin, 
 
 20 Cohens v. Virginia, 6 Wheat. 165 U. S. 275 (41:715); United 
 264. 387, 388 (5:257, 287); Fed- States v. Lathrop, 17 Johns. 4 (6: 
 erallst, Nos. XV and XVI. 264). 
 
 21 Martin v. Hunter's Lessees, 1 22 u. S. Const, art. Ill, sec. 1. 
 Wheat. 304, 335 (4:97,105); Hous- 2'3 Robertson v. Baldwin, 165 U. 
 
-§ 387 THE FEDEEAL JUDICIARY. 319 
 
 § 386. Same— "Inferior Courts" of the United States.— The 
 principles upon which the federal government was constructed, 
 and the relations between that government and the state gov- 
 ■ernments, required that the judicial power of the United States 
 should be exercised in both (1) the original and (2) the appel- 
 late form; and the original jurisdiction of the supreme court 
 having been limited by the constitution to a few classes of 
 cases, and declared in all others to be appellate, it was neces- 
 sary that the large residuum of original jurisdiction should be 
 vested in other tribunals; and it was necessary that there 
 .should be in each state or district of the United States federal 
 courts of original jurisdiction of federal causes; and it was, 
 therefore, provided in the constitution that the congress should 
 have power "to constitute tribunals inferior to the> supreme 
 court."" 
 
 § 387. Constitutional provision securing the independence 
 oi the federal judiciary. — The complete independence of the 
 .judges is requisite to the due and faithful administration of 
 justice, and the stability of the government; and this is espe- 
 cially true in a government founded upon a written constitu- 
 tion, which imposes limitations upon the legislative power, and 
 in consequence of which the judges will be called upon to de- 
 clare void legislative enactments which are found to be repug- 
 nant to the fundamental law, a duty, the performance of which 
 may, and often does, require high courage and an "independ- 
 ent spirit in the judges." Such independent judicial action is 
 often necessary to prevent "dangerous innovations in the gov- 
 •emment, ' ' defeat efforts to subvert the constitution, and to pro- 
 tect the rights of the life, liberty and property of persons. The 
 usual means of securing the independence of the judges are : 
 (1) A permanent tenure of office, (2) a fixed provision for their 
 -support, which may not be diminished, but may be increased 
 during their continuance in office, and (3) precautions for their 
 responsibility.^^ 
 
 The independence of the judges of the courts of the United 
 States is secured by constitutional provision, namely: "The 
 judges, both of the supreme and inferior courts, shall hold 
 
 S. 275 (41:715); Ex parte Gist, 26 25 Hallam's Const. Hist. 597, 
 
 Ala. 156. 598; Federalist, Nos> LXXVIII 
 
 21U. S. Const, art. I, sec. 8, cl. 9. and LXXIX. 
 
320 FEDERAL PEOCEDUEE AT LAW. § 389' 
 
 their ofiSees during good behavior, and shall, at stated times, 
 receive for their services, a compensation, which shall not be 
 diminished during their continuance in office. ' ' ^' 
 
 § 388. The constitution mandatory upon congress to organ- 
 ize the federal judiciary. — The supreme court was created by 
 the constitution; it exists by a direct grant to it of judicial 
 power. That instrument declares that there shall be "one 
 supreme court," that a part of judicial power, both original 
 and appellate, shall be vested in it, determines the mode of 
 the appointment of the judges of the court, fixes their ten- 
 ure of office, makes provision for their compensation, author- 
 izes congress to ordain and establish other and inferior courts 
 in whom shall be vested the residue of judicial power, and 
 gives it power to make all laws necessary and proper for carry- 
 ing into execution all powers vested by the constitution in the 
 government of the United States. But, in the nature of things, 
 the judicial system of the United States, which had been pro- 
 vided for in the constitution, could not be organized and its 
 jurisdiction distributed, and the powers of the several courts 
 defined and their exercise regulated, without legislative action ; 
 and the principle has long been settled that the constitution 
 was mandatory upon congress to organize the supreme court, 
 establish inferior courts, distribute the judicial power, regulate 
 its exercise, and bring into operation the federal judiciary, con- 
 sistently with the great outlines delineated in the fundamental' 
 law; and to suppose that congress could have declined to per- 
 form that duty, is to suppose that it could, by inaction, have- 
 defeated the constitution itself.^'' 
 
 § 389. Same — The federal judiciary organized by congress 
 under the original judiciary act. — ^In obedience to the mandate 
 of the constitution,^' congress, by the original judiciary act,^'*' 
 passed at its first session after the adoption of the constitution^ 
 organized the supreme court, and defined its jurisdiction, origi- 
 nal and appellate, consistently with the organic law, and di- 
 vided the United States into judicial districts and judicial eir- 
 
 20 U. S. Const art. Ill, sec. 1. 8 How. 441 (12:1147); Gary v. 
 
 2' Martin v. Hunter's Lessees, 1 Curtis, 3 How. 236 (11:577). 
 Wheat. 304 (4:97) ; Rhode Island 28 Rhode Island v. Massachu- 
 
 V. Massachusetts, 12 Pet. 657 (9: setts, 12 Pet. 657 (9:1233). 
 1233, 1259, 1262) ; Sheldon v. Sill, 20 1 u. S. Stat at L. ch. 20, pp. 
 
 73-79. 
 
§ 391 THE PEDEEAL JUDICIARY. 321 
 
 euits, created district courts and circuit courts, defined their 
 powers and jurisdiction, and regulated the exercise thereof, 
 and gave to all the courts of the United States power to issue 
 writs of scire facias, habeas corpus, and all other writs not 
 specialy provided for by statute, and which might be necessary 
 for the exercise of their respective jurisdictions, and agreeable 
 to the prnciples and usages of law; and fully organized the 
 federal judicial system and brought it into active operation.^* 
 
 § 390. Same — Creation of the United States circuit courts of 
 appeals. — All of the appellate judicial power of the United 
 States was not vested by the constitution in the supreme court ; 
 appellate jurisdiction was given by that instrument to that 
 court, in a designated class of cases, "with such exceptions and 
 under such regulations as the congress shall make," which 
 left congress free to create inferior courts and vest in them a 
 part of the appellate jurisdiction.^^ And congress, by the act 
 of March 3, 1891, in the exercise of its acknowledged power, 
 and in order to facilitate the prompt disposition of cases in the 
 supreme court, and to relieve it of the overburden of cases and 
 controversies resulting from the rapid growth of the country 
 and the steady increase of litigation, created in and for each 
 circuit a circuit court of appeals, and transferred to them a 
 large part of the appellate jurisdiction which had been there- 
 tofore vested in the supreme court, and distributed between 
 the former and the latter the entire appellate jurisdiction over 
 eases from the circuit and district courts of the United States.'** 
 
 § 391. The courts constituting the federal judicial system. — 
 The courts now constituting the federal judicial system, as 
 provided for by the constitution are: (1) District courts; 
 (2) circuit courts; (3) circuit courts of appeal; and (4) the 
 supreme court. The first, second and third are, within the 
 meaning of the constitution, inferior courts, constituted by con- 
 gress, in the execution of the power invested in it by the consti- 
 tution for that purpose.^' 
 
 30 Rhode Island v. Massachu- S. 583 (35:868), S. C. 144 U. S. 
 setts, 12 Pet. 657 (9:1233). - 47 (36:340); American Construc- 
 
 31 Martin v. Hunter's Lessees, 1 tion Co. v. Jacksonville, Tampa & 
 Wheat. 304 (4,:97); U. S. Const. Key West Ry. Co., 148 U. S. 372, 37S 
 art. Ill, sec. 2, cl. 2. (37:486); 26 U. S. Stat at L. ch. 
 
 32 McLish V. Robb, 141 U. S. 661 517, p. 826. 
 
 35:893); Re Lau Ow Bew, 141 U. ssU. S. Const, art. I, sec. 8, cl. 9. 
 
 21 
 
322 FEDERAL PKOCEDUEE AT LAW. , § 393 
 
 § 392. Same — Inferior courts not inferior in the common- 
 law sense. — The district courts, and circuit courts, and circuit 
 courts of appeal of the United States, are not "inferior courts" 
 in the common-law or technical sense ; they are so only in the 
 sense of the federal constitution, and in subordination to the 
 supreme court ; and their judgments and proceedings are not to 
 be regarded and interpreted in the light of the common-law 
 rules appplicable to inferior common-law courts.^^ , 
 
 § 393. The jurisdiction of the federal judiciary is co-exten- 
 sive with the legislative power. — It is requisite to a free and 
 balanced constitution, that there be a judicial department co- 
 ordinate and co-extensive with the legislative power, vested 
 with jurisdiction adequate to the enforcement of all legislative 
 enactments, the administration of justice between parties claim- 
 ing rights and immunities under the constitution and laws, and 
 the execution of all the powers of government which can be 
 rightfully exercised, in so far as these objects can be conveni- 
 ently and legitimately accomplished through courts of justice. '° 
 The federal judiciary meets this requirement. It has exclu- 
 sive jurisdiction of all criminal violations of the laws of the 
 United States, whether committed on land or on the high ,seas ; 
 all suits for penalties and forfeitures under any law of the 
 United States; all suits under the revenue and postal laws of 
 the United States; all causes of admiralty and maritime juris- 
 diction, saving to suitors in all cases a common-law remedy 
 where the common law is competent to give it; all prize 
 causes; all suits brought by any alien for a tort only in viola- 
 tion of the laws of nations, or of a treaty of the United States ; 
 all suits against ambassadors and ministers; many classes of 
 
 3* Livingston v. Van Ingen, 1 (33:154); Ex parte Cooper, 143 
 
 Paine, 45, Fed. Gas. No. 8,420; U. S. 472, 513 (36:232); Dowell 
 
 Turner v. Bank of North America, v. Applegate, 152 U. S. 327, 34G 
 
 4 Dall. 8 (1:718); McCormick v. (38:463). 
 
 Sullivan, 10 Wheat. 192 (6:300); ss Cohens v. Virginia, 6 Wheat. 
 
 Kempe's Lessees v. Kennedy, 5 264 (5:257); Osborn v. Bank, 9 
 
 Cranch, 173 (3:70); Cutler v. Wheat. 738 (6:204); Marbury v. 
 
 Houston, 158 U. S. 4i23, 431 (39: Madison, 1 Cranch, 137 (2:60); 
 
 104); Evers v. Watson, 156 XJ. S. Federalist, Nos. XLVI, XLVII, 
 
 B27 (39:520); Navigation Co. v. LXXVIII and LXXX; 1 Spirit of 
 
 Homestead Co., 123 U. S. 552 (31: Laws (Rev. Ed.) 149-182. 
 202); Ex parte Cuddy, 131 U. S. 
 
§ 394 THE FEDERAL JUDICIARY. 323 
 
 civil actions arising under the laws of the United States ; ^* 
 suits to enforce the interstate commerce act,'' and the anti- 
 trust act ; ^* mqitters in bankruptcy.'" And it has concurrent 
 jurisdiction with the state courts in a large class of civil cases 
 arising under the constitution, laws and treaties of the United 
 States, and cases based on diversity of citizenship, in which it 
 administers the municipal laws of the states ; *" and exclusive 
 jurisdiction of suits between states." This jurisdiction enables 
 the government to punish all violations of its criminal laws, 
 collect its revenues, execute the powers of government vested 
 in it by the constitution, secure domestic tranquility,*^ and con- 
 trol all matters affecting the relations of this country with for- 
 eign governments.*' 
 
 § 394. The federal judiciary necessary to enforce the consti- 
 tutional limitations upon the states. — The active principle ** in 
 republican governments based upon written constitutions re- 
 quires that there shall be a peaceful and "constitutional 
 method of giving efficacy to constitutional provisions, ' ' and es- 
 pecially so in a complex system where there are several legisla- 
 tive bodies, legislating for distinct local communities, but re- 
 strained by constitutional limitations ; and this object of giving 
 cipcacy to the fundamental law can be attained with greater 
 uniformity and certainty, with better security to the life, lib- 
 erty and property of the citizen, with less friction and better 
 security of the public tranquility and preservation of the pub- 
 lie faith, by the exercise of judicial pcJwer, through a compe- 
 tent, independent and efficient judiciary, than by any other 
 
 38 U. S. Rev. Stat. sees. 563, 564, soU. S. R. S. sec. 630; 30 U. S. 
 
 629, 630, 687, 711, 3039, 4270, 4540, Stat, at L ch. 541, p. 544. 
 
 4610, 4970, 5308, 5309, 5555; 4 Fed. mis U. S. Stat, at L. ch. 137, 
 
 Stat. Anno. 216-236, 245-251, 493- pp. 470, 473;' 25 U. S. Stat, at L. 
 497; 1 U. S. Comp. Stat. 455-460, , ch. 866, p. 433. 
 
 501-517, 576-578. ^i U. S. R. S. sec. 687. 
 
 37 U. S. R. S. sec. 4386, 4389, «Re Debs, 158 U. S. 564 (39? 
 5258; "23 U. S. Stat, at L. ch. 60, 1092). 
 
 sec. 6, pp. 31, 32; 24 U. S. Stat, at *3 u. S. Rev. Stat. sec. 5283,; 
 
 Li. ch. 104, p. 379 ; 26 TJ. S. Stat, at United States v. The Three 
 
 L. ch. 128, p. 743; 25 U. S. Stat, at Friends, 166 U. S. 1, 83 (41:897, 
 
 L. ch. 1063, p. 501; 27 U. S. Stat. 925). 
 
 at L. ch. 196, p. 531; Re Debs, 158 **1 Spirit of Laws (Rev. Ed.)' 
 
 tr. S. 564 (39:1092). 19-22. 
 
 38 28 tJ. S. Stat, at L. ch. 349, sec. 
 73, 74, p. 570. 
 
324 FEDERAL PEOCEDURE AT LAW. § 394 
 
 means.^' And such were the means provided for in the fed- 
 eral constitution.*^ 
 
 The people of the original thirteen states/' having, under "a 
 firm league of friendship, ' ' *^ achieved their independence by 
 successful revolution, desiring to enter into a "more perfect 
 union," iipon "reflection and choice," established a complex 
 polity, dividing the attributes of sovereignty between the state 
 and federal governments, vesting in the former the powers of 
 national sovereignty and reserving to the latter the powers of 
 miinicipal sovereignty, and imposing upon the states import- 
 ant limitations; and declared that "this constitution, and the 
 laws of the United States which shall be made in pursuance 
 thereof, and all treaties made or which shall be made under 
 the authority of the United States, shall be the supreme law of 
 the land, and the judges in every state shall be bound thereby, 
 anything in the constitution or laws of any state to the con- 
 trary notwithstanding," and that "the members of the several 
 state legislatures, and all executive and judicial officers, both of 
 the United States and of the several states, shall be bound by 
 oath or affirmation to support this constitution;" *" and vested 
 in the supreme court appellate jurisdiction in cases in law and 
 equity arising under the constitution, laws and treaties of the 
 United States, intending that this appellate jurisdiction should 
 be exercised over the state courts, and that all provisions in 
 the constitution of any state, and all laws enacted by any state 
 legislature, which should be found by the supreme court, in 
 the exercise of its jurisdiction, to be repugnant to "the su- 
 preme law of the land," should be held and declared null and 
 void. It was only in this way that the supremacy of the fed- 
 eral constitution could be maintained, and the Union preserved. 
 Had not this principle been incorporated in the constitution, 
 there could have been no uniformity in the construction of its 
 provisions; there would have been as many different construc- 
 tions as there were state courts of last resort, and it would 
 have been both possible and practical for the states to have 
 
 ■ « Federalist, No. LXXX; , Co- ■" McCulloch v. Maryland, 4 
 
 hens V. Virginia, 6 Wheat. 264, 448 "Wheat. 316, 403, 404, 405 (4:597, 
 
 (5:257); Re Debs, 158 U. S. 564, 600, 601); Scott v. Sanford, la 
 
 600 (39:1092); Ableman v. Booth, How. 393, 633 (15:691). 
 
 21 How. 506, 526 (16:169). *8 Articles of Confed. art. II. 
 
 *eV. S. Const, art. III. " U. S. Const, art. VI. 
 
§ 395 THE FEDERAL JUDICIARY. 325 
 
 subordinated the federal constitution, laws and treaties to their 
 own laws, to have annulled the limitations imposed upon them 
 by that instrument, and to have effectually defeated the entire 
 scheme of government embodied in it.'" The appellate juris- 
 diction of the supreme court over the judiciary of the states 
 in cases involving a federal question, and the power of that 
 court to hold and declare void state laws when found by it to 
 be in contravesntion of the federal constitution, and the laws 
 and treaties made pursuant to it, were not an after-thought, 
 fortuitously fallen upon subsequently to the organization of 
 the government; but it was charged by the enemies, and ad- 
 mitted and justified by the friends of the constitution, while 
 that instrument was pending before the country, that its adop- 
 tion would be followed by such results.'^ 
 
 § 395. The federal judiciary necessary to restrain federal 
 legislation within constitutional limits. — The government of 
 the United States, although sovereign and supreme within its 
 appropriate sphere of action, is, nevertheless, a government of 
 delegated, limited and enumerated powers, defined in the con- 
 stitution, and neither its executive, legislative, nor judicial de- 
 partments, can lawfully exercise any power in excess of the 
 limits defined in the constitution; the provision that the "con- 
 stitution, and the laws 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," is just as binding on the federal government, as 
 it is on the states, and any legislation of congress not author- 
 ized by the constitution, or in contravention of it, is absolutely 
 null and void.'- But, in order to restrain congress within con- 
 so Federalist, Nos. XXII, LXXX, V. Tarble, 13 Wall. 397, 413 (20: 
 LXXXI and LXXXII; Cohens v. 597). 
 
 Virginia, 6 Wheat. 264 (5:257); si Federalist, Nos. LXXX, 
 
 Martin v. Hunter's Lessees, 1 LXXXI and LXXXII; Cohens v. 
 Wheat. 304, 382 (4:97); Sturges Virginia, 6 Wheat. 264 (5:257). 
 V. Crowninshield, 4 Wheat. 122, 209 62 McCuUoch v. Maryland, 4 
 
 (4:529); McCulloch v. Maryland, Wheat. 316, 437 (4:597); Ableman 
 4 Wheat. 316, 437 (4:579); Dart- v. Booth, 21 How. 506, 526 (16: 
 mouth College v. Woodward, 4 169); Scott v. Sandford, 19 How. 
 Wheat. 518 (4:629); Gibbons v. 393, 633 (15:691); Marbury v. 
 Ogden, 9 Wheat. 1 (6:23); Brown Madison, 1 Oranch, 137 (2:60); 
 V. Maryland, 12 Wheat. 419 (6: Hodges v. United States, 203 U. S. 
 678); Ableman v. Booth, 21 How. 1-38 (51:65). 
 506, 526 (16:109); United States 
 
326 FEDERAL PROCEDURE AT LAW. § 396 
 
 stitutional limits, and to avoid any legislation in excess of its 
 power; it was necessary that there should be a tribunal vested 
 with power, in the last resort, to pass upon the validity of such 
 legislation, and, accordingly, the constitution vested in the su- 
 preme court final appellate jurisdiction in all cases arising 
 under the constitution, laws and treaties of the United States, 
 whether such cases originate in the state courts or in the in- 
 ferior courts of the United States, and, as the final appellate 
 tribunal, it is the duty of the supreme court to declare void 
 and refuse to execute any act of congress brought before it 
 and found to be in contravention of the constitution, and the 
 court has, in a number of cases, exercised this power, and de- 
 clared void congressional legislation, because in excess of the 
 power conferred by the constitution upon the government, or 
 in violation of some constitutional limitation imposed upon it 
 for the protection and security of the life, liberty or property 
 of the citizen."^ The judicial power of the United States covers 
 eveiy legislative enactment of congress, -whether it be made 
 within the limits of its delegated powers, or be an assumption 
 of power beyond the grant of the constitution; and this judi- 
 cial power was justly regarded by the founders of the govern- 
 ment as indispensable, not merely to maintain the supremacy 
 of the constitution and laws of the United States, but also to 
 guard the states from any encroachment, by the general govern- 
 ment, upon their reserved rights.*^* 
 
 § 396. The federal judiciary necessary to peacefully main- 
 tain the supremacy of the federal constitution and the author- 
 ity of the federal government. — In order that the scheme of 
 government proposed and submitted by the constitutional con- 
 vention should be free from the defects and deficiencies of the 
 
 53 United States v. Harris, 106 Wall. 41, 45 (19:593); United 
 
 U. S. 629 (27:290); Civil Rights States v. Fox, 95 U. S. 670, 673 
 
 Cases, 109 U. S, 3, 62 (27:836); (24:538); United States v. StefE- 
 
 United States v. Reese, 92 U. S. ens, 100 U. S. 82, 99 (25:550); Pol- 
 
 214, 256 (23:563); Ex parte Gar- lock v. Farmers' Loan & Trust Co., 
 
 land, 4 Wall. 333, 339 (18:366); 157 U. S. 429, 654 (39:759), S. C. 
 
 Justices V. United States, 9 Wall. 158 U. S. 601, 715 (39:1108); Fed- 
 
 274, 282 (19:659); United States eralist, No. LXXVIII; Hodges v. 
 
 V. Klein, 13 Wall. 128, 150 (20: United States, 203 U. S. 1-38 (51: 
 
 519): Boyd v. United States, 116 65). 
 
 U. S. 616, 641 (29:746); Scott v. '-tMarbury v. Madison, 1 
 
 Sanford, 19 How. 393, 633 (15: Cranch, 137 (2:60); Ableman v. 
 
 691); United States v. be Witt, 9 Booth, 21 How. 506, 526 (16:169). 
 
§ 397 THE FEDERAL JUDICURY. 327 
 
 "firm league of friendship" which existed under the articles 
 of confederation, and should be effective and legally and politi- 
 cally competent to the full realization of the hopes of the 
 country, the statesmen and patriots who framed and adopted 
 it deemed it essential (1) that the constitution and valid laws 
 and treaties of the United States, which were to be operative 
 throughout the Union, should be the supreme law of the land, 
 and that no state should be able to defeat their operation within 
 its territorial limits, (2) that th6 general government should 
 be supreme within the limits of its appropriate sphere of ac- 
 tion, and strong enough to execute its own laws, without in- 
 terference from the states, and (3) that, in order to peacefully 
 maintain that supremacy, it was necessary that the general 
 government should be clothed with judicial power equally 
 paramount in authority to carry into execution the constitu- 
 tion, laws and treaties, and vested with the absolute right of de- 
 cision in the last resort in all cases of a conflict between state 
 and federal authority; and, accordingly, this great principle 
 was embodied in the constitution, and the supreme court was 
 given final appellate jurisdiction over the courts of the states 
 in all cases arising under the constitution, laws and treaties of 
 the United States. It was, indeed, essential to the very exist- 
 ence of the federal government, as a government, that it should 
 have the power, of establishing courts of justice, altogether 
 independent of state power, to carry into effect its own laws; 
 and that a tribunal should be established in which all cases 
 which might arise under the constitution and laws And treaties 
 of the United States,' wheth&r in a state court or a court of the 
 United States, should be finally and conclusively decided.^^ 
 
 § 397. The federal judiciary a peaceful means of removing 
 obstructions to interstate commerce. — Whilst the United States 
 may rightfully use physical force to remove and prevent ob- 
 structions to the freedom of interstate commerce and the car- 
 
 sBAbleman v. Booth, 21 How. Gibbons v. Ogden, 9 Wheat. 1 
 
 506, 526 (16:169); United States (6:23); McCulloch v. Maryland, 4 
 
 V. Tarble, 13 Wall. 397, 413 (20: Wheat. 316 (4:579); Brown v. 
 
 597); Cohens v. Virginia, 6 Maryland, 12 Wheat. 419 (6:678) ; 
 
 'Wheat. 264 (5:257); Martin v. Fletcher v. Peck, Cranch, 87 (3: 
 
 Hunter's Lessees, 1 Wheat. 304 162); Federalist, Nos. LXXX, 
 
 (4:97); Dartmouth College v. LXXXI and LXXXII. 
 Woodward, 4 Wheat. 518 (4:629); 
 
328 FEDERAL PEOCEDUEE AT LAW. § 399. 
 
 riage of the mails, when such obstruction has been created by 
 lawlessness and violence, and may, for that purpose, when the 
 emergency arises, call into action the army, yet the right to 
 use force does not exclude the right of the government in such 
 cases to resort to its own courts for a judicial determination 
 of the questions of right and wrong involved, and for a peace- 
 ful enforcement of that determination when made, and also for 
 a prevention, by the extraordinary processes of the court, of 
 a recurrence or continuance of such obstructions ; and for such 
 a choice of peaceful means and instrumentalities for the execu- 
 tion of its powers, the government is to be praised rather than 
 blamed."" 
 
 § 398. Relation of the federal judiciary to the national peace. 
 Inasmuch as the constitution devolved upon the federal gov- 
 ernment the powers and correlative duties and responsibilities 
 of national sovereignty, one of the most important of which is 
 the conduct of the relations of this country with foreign na- 
 tions, and "as the denial or perversion of justice by the sen- 
 tences of courts, as well as in any other manner, is with reason 
 classed among the just causes of war," it inevitably follows 
 "that the federal judiciary ought to have cognizance of all 
 causes in which the citizens of other countries are concerned," 
 such as cases arising under treaty stipulations, suits in ad- 
 miralty, prize causes, and suits against ambassadors, other pub- 
 lic ministers and consuls, and crimes committed on the high 
 seas.''' 
 
 § 399. Relation of the federal judiciary to domestic tran- 
 quility and peace. — The creation of the federal government by 
 ■the constitution was not merely to guard the states against 
 danger from foreign nations, but mainly to secure union and 
 harmony at home — to "insure domestic tranquility;" for if 
 that object could be attained, there would be but little danger 
 from abroad ; °^ and, with that end in view, the supreme court 
 was given original jurisdiction of controversies between two 
 or more states, having in mind, no doubt, the subject of con- 
 troverted boundaries between different states, which had been, 
 
 66 Re Debs, 158 U. S. 564, 600 fax v. Hunter, 7 Cranch, 603 (3: 
 
 (39:1092); United States v. Trans- 453); Martin v. Hunter's Lessees, 
 
 Missouri Freight Ass'n, 166 U. S. 1 Wheat. 304 (4:97). 
 
 290, 374 (41:1007). ss Ableman v. Booth, 21 How. 
 
 B7 Federalist, No. LXXX; Fair- 506, 526 (16:169). 
 
§ 401 THE FEDERAL JUDICIAEY. 329 
 
 before the adoption of the constitution, and continued some 
 time afterwards, a source of dissension and irritating and an- 
 gry controversies, threatening at times to end in force and vio- 
 lence, but which were, however, averted hy the exercise of the 
 judicial power."" 
 
 § 400. Territorial courts not courts of the United States. — 
 The territorial courts are not, within the meaning of the con- 
 stitution, courts of the United States, although they have the 
 same jurisdiction in all cases arising under the constitution and 
 laws of the United States as is vested in the circuit and district 
 courts of the United States; but they are legislative courts 
 created in the exercise of the power granted by the clause of 
 the constitution authorizing congress to make all needful rules 
 and regulations respecting the territories belonging to the 
 United States."" Congress is vested with both national and 
 municipal sovereignty in the territories, and exercises therein 
 the powers of both the state and federal governments, and the 
 territorial courts administer two distinct jurisdictions, namely 
 (1) the local laws of the territory, and (2) the laws of the 
 United States within the territory."^ 
 
 § 401. The court of claims a special court. — The court of 
 claims established by the act of February twenty-fourth, eight- 
 een hundred and .fifty-five, is a special court for the adjudica- 
 tion of claims against the government, and, while it is a court 
 of great importance, it is not a part of the. regular federal judi- 
 cial system.'^ 
 
 59 Rhode Island v. Massachu- 145,168 ('25:244); Benner v. Por- 
 
 setts, 12 Pet. 567, 755 (9:1233); ter, 9 How. 235 (13:119); TMed 
 
 Florida v. Georgia, 17 How. 478 v. Utah, 159 U. S. 510, 523 (40: 
 
 (15:181); Missouri v. Iowa, 7 237); McAllister v. United States, 
 
 How. 660 (12:861); Alabama v. 141 U. S. 174, 201 (35:693). 
 
 Georgia, 23 How. 506 (16:556); ciex parte Kang-Gi-Shun Co., 
 
 Missouri v. Kentucky, 11 Wall. 109 U. S. 556, 572 (27:1030); Ex 
 
 395 (20:116). parte Gon-Shay-Ee, 130 U. S. 343, 
 
 80 Ins. Co. V. Canter, 1 Pet. 511 353 (32:973). 
 
 (7:242); Clinton v. Englebrecht, 62 U. S. Rev. Stat. sees. 1049- 
 
 13 Wall. 434, 449 (20:659); Rey- 1093; 1 U. S. Comp. Stat. pp. 729- 
 
 nolds V. United States, 98 U. S. 764; 2 Fed. Stat. Anno. 53-100. 
 
CHAPTER VIII. 
 
 THE RELATION OP THE FEDERAL JUDICIARY AND THE STATE: 
 JUDICIARY TO EACH OTHER. 
 
 402. Exclusive jurisdiction of 
 
 federal courts over par- 
 ticular subjects. 
 
 403. Same — Not affected by gen- 
 
 eral statutes defining the 
 concurrent jurisdiction. 
 
 § 404. The three-fold character of 
 federal jurisdiction. 
 405. The federal courts and 
 state courts for some pur- 
 poses constitute one ju- 
 dicial system. 
 
 § 402. Exclusive jurisdiction of federal courts over particu- 
 lar subjects. — It resulted, inevitably, from the nature of the 
 dual system '- of government established by the federal consti- 
 tution, that a large field of jurisdiction should be vested in the 
 federal judiciary, in which the state judiciary could have no- 
 participation, as no part of the judicial power of the United 
 States can be vested in the courts of the states ; ^ and it also re- 
 sulted from the constitution that at the election of congress the 
 federal courts may be given exclusive jurisdiction of cases 
 arising under the laws of the United States, but in the absence 
 of exclusive- words the state courts would in a large class of 
 such cases exercise concurrent jurisdiction ; ^ and, accordingly,, 
 federal legislation, commencing with the original judiciary act,, 
 has, from time to time, vested in the district and circuit courts, 
 a very comprehensive jurisdiction in special cases and over 
 particlar subjects, exclusive of the state courts, which is, in 
 some instances, vested exclusively in the district courts, in 
 
 1 Ableman v. Booth, 21 How. 
 506, 526 (16:169); United States 
 V. Tarble, 13 Wall. 397, 413 (20: 
 597). 
 
 2 Martin v. Hunter's Lessees, 1 
 Wheat. 304, 335 (4:97, 105); Hous- 
 ton v. Moore, 5 Wheat. 1, 27 (5: 
 19, 25) ; Robertson v. Baldwin, 165 
 U. S. 275 (41:715); United States 
 V. Lathrop, 17 Johns. 4 (6:264); 
 R. Co. v. Whitton, 13 Wall. 288 
 
 (20:577); The Moses Taylor, 4 
 Wall. 429 (18:401); Gaines v. 
 Puentes, 92 U. S. 10, 26 (23:524). 
 3 Stearns v. United States, 3'. 
 Paine, 300, Ped. Cas. 13,341; Mar- 
 tin V. Hunter's Lessees, 1 Wheat.. 
 304, 335 (4:97, 105); R. Co. v. 
 Whitton, 13 Wall. 288 (20:571);; 
 The Moses Taylor, 4 Wall. 429. 
 (18:401). 
 
§ 403 RELATION OF FEDEEAD AND STATE JUDICIAR-?. 331 
 
 others exclusively in the circuit courts, and still in others the 
 the district and circuit courts have concurrent jurisdiction,* 
 and, under the second section of what is known as the Tucker 
 Act, the district court and the circuit court, each has, in certain 
 specified classes of cases, concurrent jurisdiction with the court 
 of claims, according to the amount involved, but the jurisdic- 
 tion of the district and circuit court is, as between themselves 
 under that act, exclusive.' 
 
 § 403. Same — Not affected by general statutes defining the 
 concurrent jurisdiction of the federal and state courts. — It is a 
 fundamental rule of federal jurisprudence that general statutes, 
 passed by congress defining the concurrent jurisdiction of the 
 federal and state courts are not intended to interfere with the 
 prior statutes conferring jurisdiction upon the circuit or dis- 
 trict courts in special cases, and over particular subjects, nor 
 to alter the distribution of jurisdiction, as between the circuit 
 court and the district court, of cases which, by reason of their 
 subject-matter, have been committed by congress to the ex- 
 clusive determination of the federal courts, nor to repeal the 
 special provisions of former laws conferring on the circuit and 
 district courts jurisdiction of such cases without regard to the 
 amount in dispute, or the citizenship of the parties ; and it has 
 been accordingly held, uniformly, that the provision of the later 
 general judiciary Sets conferring upon the circuit courts of the 
 United States "original cognizance, concurrent with the courts, 
 of the several states, 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 two thousand dollars, 
 and arising under the constitution or laws of the United States, 
 or treaties made, or which shall be made, under their author- 
 ity," does not take away from the circuit or district courts 
 the jurisdiction conferred upon them by prior statutes in spec- 
 ial cases and over particular subjects, nor divest the jurisdic- 
 tion which had for so long a time been vested exclusively in 
 
 4 1 U. S. Stat, at L. ch. 20, sec. p. 321; 26 U. S. Stat, at L. eh. 407, 
 
 9, pp. 73-79; U. S. Rev. Stat. art. sec. 15, p. 138; 26 U. S. Stat, at L. 
 
 711; U. S. Comp. St. 576-578; 24 ch. 647, p. 209; 28 U. S. Stat, at 
 
 TJ. S. Stat, at L. ch. 359, p. 505; 23 L. ch. 349, sees. 73-77, p. 570, and 
 
 ir. S. Stat, at L. ch. 164, p. 332; many others. 
 
 26 U. S. Stat, at L. ch. 551, p. s 24 U. S. Stat, at L. ch. 359, p. • 
 
 1084; 23 U. S. Stat, at L. ch. 149, 505. 
 
332 FEDERAL PKOCEDUEE AT LAW. § 404 
 
 the district courts, nor in any manner alter the prior distribu- 
 tion of jurisdiction, as between the circuit and district courts 
 in such special oases and over such particular subjects." 
 
 § 404. The three-fold character of. federal jurisdiction. — The 
 jurisdiction of the federal courts is either (1) original and ex- 
 clusive of the state courts, or (2) original and concurrent with 
 the state courts, or (3) it is appellate. 
 
 1. In all suits arising out of any subject-matter of judicial 
 cognizance, over which the exercise of judicial power is neces- 
 sary in order to enforce the authority of the federal govern- 
 ment, or to specifically execute the powers exclusively vested 
 in it by the constitution, or to collect its revenues and carry on 
 its operations, and in all suits arising out of any subject-matter 
 over which the exercise of judicial power may directly affect 
 the relations of this government with foreign governments, the 
 district courts and circuit courts of the United States are vested 
 with original jurisdiction, exclusive of the courts of the states.' 
 
 2. In two classes of suits of a civil nature, one class depend- 
 ent upon the character of the parties, their- rights arising out 
 of state laws and jurisprudence, and the other class dependent 
 upon the nature of the suit, the rights of the parties arising 
 out of the constitution, laws and treaties of the United States, 
 the circuit courts of the United States are vested with original 
 jurisdiction concurrent with the courts of the several states.' 
 
 « United States v. Mooney, 11 Fed. R. 462; Stephens v. Bornays, 
 
 Fed. R. 476, S. C. 116 TJ. S 104, 44 Fed. R. 642; Bank v. Harrison, 
 
 108 (29:550); Price, Receiver, v. 3 McCrary, 162, Fed. Cas. ; 
 
 Abbott, 17 Fed. R. 506; Hendee v. United States v. Whitcomb Bed- 
 
 R. Co., 26 Fed. R. 677; Stephens stead Co., 45 Fed. R. 90.- 
 V. Bernays, 41 Fed. R. 401; Arm- ? 1 U. S. Stat, at L. ch. 20, sec. 
 
 strong V. Bttlesohn, 36 Fed. R. 9, pp. 73-79; U. S. Rev. Stat. art. 
 
 209; Piatt V. Beach, 2 Ben. 303, 711; U. S. Comp. Stat. 576-578; 
 
 Fed. Cas. 11,215; Stanton v. Wilk- 24 U. S. Stat, at L. ch. 359, p. 505; 
 
 eson, 8 Ben. 357, Fed. Cas. 13,297; 23 U. S. Stat, at L. ch. 164, p. 332; 
 
 U. S. V. Mexican National Ry. Co., 26 U. S. Stat, at L. ch. 551, p. 
 
 40 Fed. R. 769; Frelinghuysen v. 1084; 23 U. S. Stat, at L. ch. 149, 
 
 Baldwin, 12 Fed. R. 395; Fisher p. 321; 26 U. S. Stat, at L. ch. 407, 
 
 V. Yoder, 53 Fed. R. 565; Thomp- sec. 15, p. 138; 26 U. S. Stat, at h. 
 
 son V. Pool, 70 Fed. R. 725; Short ch. 647, p., 209; 28 U. S. Stat, at 
 
 V. Hepburn, 75 Fed. R. 113; Brown L. ch. 349, sec. 73-77, p. 570; 24 
 
 V. Smith, 88 Fed. R. 565; Myers U. S. Stat, at L. ch. 359, p. 505. 
 V. Hettinger, 94 Fed. R. 370; Aid- s 25 U. S. Stat, at L. ch. 866, sec. 
 
 rich V, Campbell, 97 Fed. R. 663; 1, p. 433. 
 McCartney v. Earl (C. C. A.) 115 
 
§ 405 KELATION OB' FEDERAL AND STATE JUDICIARY. 333 
 
 3. In all eases decided by the district courts and circuit 
 courts, an appeal or writ of error lies from their final decrees- 
 and judgments to the United States supreme court, or to the 
 circuit court of appeals, according to the nature of the ques- 
 tions involved,' and in all cases decided by a state court involv- 
 ing a federal question, the final judgment or decree of the 
 highest court of the state in vs^hich a decision, of the case may 
 be had may be reviewed on writ of error by the United States 
 supreme court.^" 
 
 § 405. The federal courts and state courts for some purposes 
 constitute one judicial system. — The circuit courts of the 
 United States, in exercising concurrent jurisdiction with the 
 courts of the states in the class of cases in which their jurisdic- 
 tion is dependent upon the character of the parties, are, for all 
 practical purposes, courts of the state in which they sit, and 
 their function, under such circumstances, is to enforce the 
 rights of parties according to the laws of the state, taking care, 
 always, as the courts of the states must take care, not to in- 
 fringe any right secured by the constitution and laws of the 
 United States ,• ^^ and the state courts in exercising jurisdiction 
 concurrent with the circuit courts of the United States in cases 
 arising under the constitution, laws and treaties of the United 
 States, become "auxiliaries to the execution of the laws of 
 the Union," and the support of its authority, and, in this 
 aspect of the dual polity established by the constitution, the 
 state and federal courts reciprocally support the authority of 
 the state and federal governments, and for this purpose the 
 two systems of courts constitute one judicial system.^^ 
 
 9 26 U. S. Stat, at L. ch. 517, 304 (4:97); Brown v. Maryland, 
 
 p. 826. 12 Wheat. 419 (6:678); Ableman 
 
 10 U. S. R. S. sec. 709; Murdock v. Booth, 21 How. 506, 526 (16: 
 
 V. City of Memphis, 20 Wall. 590- 169). 
 
 636; Dartmouth College v. Wood- n Madisonville Traction Co. v. 
 
 ward, 4 Wheat. 518 (4:C29); Mc- Mining Co., 196 U. S. 239-261 
 
 Culloch V. Maryland, 4 Wheat. 316 (49:462). 
 
 (4:579); Cohens v. Virginia, 6 12 Federalist, No. LXXXII; Co- 
 Wheat. 264 (5:257); Gibbons v. hens v. Virginia, 6 Wheat. 264, 
 Ogden, 9 Wheat. 1 (6:23); Mar- 419, 420 (5:257, 294, 295). 
 tin v. Hunter's Lessees, 1 Wheat. 
 
CHAPTER IX. 
 
 THE ORIGINAL JURISDICTION OP THE SUPREME COURT OF 
 THE UNITED STATES. 
 
 S 406. Two general classes of 
 cases over which, the su- 
 preme court is granted 
 original jurisdiction. 
 
 407. Same — Classification o f 
 
 cases in which a state 
 may be a party. 
 
 408. Same — Same — No jurisdic- 
 
 tion of suit by state 
 against own citizens. 
 
 409. The original jurisdiction 
 
 not made exclusive. 
 
 410. Same — Jurisdiction of the 
 
 court of claims — ^United 
 States V. Louisiana. 
 
 411. Suits between states to set- 
 
 tle boundaries. 
 
 412. Jurisdiction of suits be- 
 
 tween states not confined 
 to controversies to settle 
 boundaries. 
 § 413. Same — Division by one 
 state of flow of water 
 into another. 
 
 414. In suits between states 
 
 there must be a justi- 
 ciable controversy be- 
 tween them as states. 
 
 415. Suits by the United States 
 
 against a state. 
 
 416. The jurisdiction extends to 
 
 suits of a civil nature 
 only. 
 
 417. Procedure in the supreme 
 
 court in cases of original 
 jurisdiction. 
 
 § 406. Two general classes of cases over which the supreme 
 court is granted original jurisdiction. — The supreme court of 
 the United States is, by the constitution, vested with original 
 jurisdiction over two general classes of cases, namely: (1) All 
 cases affecting ambassadors, other public ministers and con- 
 suls; and (2) cases in which a state shall be a party.'^ It is not 
 within the competency of congress to vest in the supreme court 
 original jurisdiction in any other classes of cases than those 
 specified in the constitution.^ 
 
 § 407. Same — Classification of cases in which a state may be 
 a party. — The cases in which a state may be a party, and over 
 which the supreme court is, by the constitution, vested with 
 original jurisdiction, are classified as follows: (1) Controver- 
 sies between two or more states; (2) controversies between a 
 
 1 U. S. Const, art. Ill, sec. 2. 
 
 2 Marbury v. Madison, 1 Cranch, 
 
 137 (2:60); Ex parte Yerger, 8 
 Wall. 96, 97 (19:336). 
 
•§ 409 ORIGINAL JURISDICTION OF THE SUPREME COURT. 335 
 
 state and citizens of another state; (3) controversies between 
 a state and foreign states; (4) controversies between a state 
 and citizens or subjects of foreign states, that is, aliens ; * and 
 (5) controversies between the United States and a state.* 
 
 § 408. Same — Same — No jurisdiction of suit by state against 
 own citizens. — The supreme court has no original jurisdiction 
 •of a suit brought by a state against one of its own citizens,.^ 
 nor of a suit between a state and citizens of another state and 
 its own citizens, and corporations joined as defendants." 
 
 § 409. The original jurisdiction not made exclusive. — The 
 ■original jurisdiction conferred upon the United States supreme 
 ■court by the federal constitution is not, by that instrument, 
 made exclusive ; and it is competent for congress to vest in the 
 inferior courts of the United States original jurisdiction of the 
 same classes of controversies, of which the supreme court is by 
 the constitution given original cognizance.'' And congress has, 
 in the exercise of its power, provided that in certain classes of 
 those eases the original jurisdiction shaU be exclusive, and in 
 ■others it shall not be exclusive. The exclusive jurisdiction is : 
 (1) of all controversies of a civil nature where a state is a 
 party, except between a state and citizens of other states or 
 aliens; and (2) of all such suits or proceedings against ambas- 
 sadors, or other public ministers, or their domestics or servants, 
 as a court of law can take cognizance of, consistently with the 
 laws of nations. The original jurisdiction of the supreme court 
 which is not exclusive is: (1) of suits between a state and citi- 
 zens of other states or aliens; and (2) of suits brought by am- 
 bassadors, or other public ministers, or in which a consul or vice- 
 consul is a party.^ It seems, also, that the original jurisdic- 
 
 3tr. S. Const, art. Ill, sec. 2; s Pennsylvania v. Quicksilver 
 
 Ames V. Kansas, 111 U. S. 449- Min. Co., 10 Wall. 553 (19:998). 
 
 472 (28:482); St. Luke's Hospital 6 California v. Southern Pac. Co., 
 
 V. Barclay, 3 Blatchf. 265; Gra- 157 U. S. 229-271 (39:683) ; Minne- 
 
 ham V. Stucken, 4 Blatchf. 50; sota v. Northern Securities Co., 184 
 
 California v. Southern Pac. Co., U. S. 199-247 (46:499). 
 
 229-271 (39:683); Pennsylvania 7 Ames v. Kansas, 111 U. S. 449- 
 
 v. Quicksilver Min. Co., 10 Wall. 472 (28:482); Gittings v. Craw- 
 
 553 (19:998). ford, 1- Taney, Dec. 1; United 
 
 4 United States v. Texas, 143 U. States v. Louisiana, 123 U. S. 32- 
 
 S. 621 (36:285); United States v. 39 (31:69); Bors v. Preston, 111 
 
 North Carolina, 136 U. S. 221- U. S. 252-263 (28:419). 
 
 222 (34:336). s u. S. ReV. Stat. sec. 687; 4 Fed. 
 
 Stat. Anno. 436. 
 
336 FEDERAL PROCEDURE AT LAW. § 411 
 
 tion of a suit by a state against the United States is not ex- 
 clusive in the supreme court.' 
 
 § 410. Same — Jurisdiction of the court of claims — United 
 States V. Louisiana. — The United States having by statute con- 
 sented to be sued in the court of claims, upon any claim founded 
 upon a law of congress, and being indebted to the state of 
 Louisiana in an aggregate sum of $71,385.83, arising under two 
 certain acts of congress, and the federal constitution not mak- 
 ing the original jurisdiction of the supreme court exclusive 
 in cases where a state is a party, and the federal st.atute 
 whereby the United States consents to be sued, as aforesaid, 
 making no exception when a state is a party, there is no more 
 reason why the jurisdiction of the court of claims should not 
 be exercised in such a case, than when a private person is a 
 suitor. The statute by which the government consents to be 
 sued making no exception as to the jurisdiction of the court of 
 claims in such cases, the supreme court can create no such ex- 
 ception. The jurisdiction of the court of claims was sus- 
 tained.^" 
 
 § 411. Suits between states to settle boundaries. — The most 
 numerous class of eases of which the supreme court has enter- 
 tained original jiirisdiction is that of controversies between 
 two states as to the boundaries of their territory, such as were 
 determined before the revolution by the king in council, and, 
 under the Articles of Confederation, while there was no na- 
 tional judiciary, by committees or commissioners appointed by 
 congress. All such suits have been entertained on the equity 
 side of the court, as suits in chancery, and the usual prayer of 
 the bill is that the court, by its decree, may ascertain and estab- 
 lish the boundary line between the states, parties plaintiff and 
 defendant, and that the plaintiff be restored to her right of jur- 
 isdiction and sovereignty over the disputed territory, and that 
 she be quieted in her title, possession and enjoyment of such 
 territory.^^ 
 
 » United States v. Louisiana, 123 Pet. 461 (7:741); S. C. 5 Pet. 284 
 
 U. S. 32-39 (31:69). (8:127); S. C. 6 Pet. 323 (8:414); 
 
 10 United States v. Louisiana, Rhode Island v. Massachusetts, 12 
 123 U. S. 33-39 (31:69). And Pet. 657-762 (9:1233-1275); S. 
 see, also. South Carolina V. United C. 13 Pet. 23 (10:41); S. C. 14 
 States, 199 U. S. 437-472 (50:261). Pet. 210 (10:423); S. C. 15 Pet. 
 
 11 New Jersey v. New York, 3 233 (10:71); S. C. 4 How. 591 (11: 
 
§ 413 ORIGINAL JURISDICTION OP THE SUPREME COURT. 337 
 
 § 412. Jurisdiction of suits beween states not confined to 
 controversies cencerning boundaries. — ^Although the history of 
 litigation in the supreme court shows that its original jurisdic- 
 tion has been more frequently invoked and exercised in suits 
 between states involving boundaries, and questions of jurisdic- 
 tion and sovereignty over lands and people, directly affecting: 
 the property rights and interests of a state, yet manifestly such, 
 cases do not cover the entire field in which controversies may 
 arise between states over Avhich the supreme court is, by the 
 constitution, vested with original jurisdiction, and that court, 
 has declared that it would be objectionable, and, indeed, im- 
 possible, for it to anticipate by definition what controversies; 
 between states can and what cannot be brought within its orig- 
 inal jurisdiction; and a bill filed by one state to enjoin another 
 and a* corporation created by it from discharging sewage into 
 the public waters of the plaintiff state, whereby such waters 
 and the soil under them would become polluted, and contagious 
 and typhoidal diseases would be introduced into the river 
 communities, spreading themselves throughout the state, and 
 threatening the impairment of the comfort, health and pros- 
 perity of the towns along such public waters, including its 
 commercial metropolis, stated a case affecting the entire state, 
 and of which the court had original jurisdiction under the 
 constitution.^^ It is also held that the court has jurisdiction 
 of a bill filed by one state against another to compel the pay- 
 ment of bonds lawfully issued by defendant state, and to fore- 
 close a mortgage given on certain railroad stock to secure the 
 debt, the plaintiff state being the owner of the bonds.^* 
 
 § 413. Same — Diversion by one state of flow of water into 
 another. — A bill in equity, which, by the averment of facts, pre- 
 sents the question as to the power of one state of the Union 
 to wholly deprive another of the benefit of water from a river 
 
 1116); Missouri v. Iowa, 7 How. 913); Iowa v. Illinois, 202 IT. S. 
 
 660 (12:861); S. CIO How. 1 (13: 59, 60 (50:934); Nebraska v. 
 
 303); Florida v. Georgia, 17 How. Iowa, 143 TJ. S. 359-370 (36:186). 
 
 478 (15:181); Alabama v. Georgia, 12 Missouri v. Illinois, 180 U. S. 
 
 23 How. 505 (16:556); Virginia V. 208-250 (45:497); S. C. 200 U. 
 
 West Virginia, 11 Wall. 39 (20: S. 496-526 (50:572). 
 
 67) ; Missouri v. Kentucky, 11 la South Dakota v. South Caro- 
 
 Wall. 395 (20:116); Louisiana v. Una, 192 U. S. 286-354 (48:448). 
 Mississippi, 202 U. S. 1-59 (50: 
 
 23 
 
338 FEDERAL PROCEDURE AT LAW. § 41-4 
 
 rising in the former, and, by nature, flowing into and through 
 the latter, and which seeks a decree enjoining such diversion, 
 presents a controversy between two states within the original 
 jurisdiction of the supreme court. ^* 
 
 § 414. In suits between states there must be a justiciable con- 
 troversy between them as states. — In a suit between states, in 
 order to maintain the jurisdiction, there must exist a real jus- 
 ticiable controversy, in which the entire state, plaintiff and de- 
 fendant, each respectively, is directly and immediately inter- 
 ested. The rights and interests represented by the plaintiff 
 must belong to it in its capacity as a state ; and the action of the 
 defendant complained of must be state action. A bill in equity 
 brought by one state against another and its state officers must 
 show by proper averments, made in conformity to the estab- 
 lished rules of equity pleading, that the controversy presented 
 for decision and determination is a controversy directly be- 
 tween the plaintiff state and the defendant state, and not a 
 controversy in which the plaintiff state seeks the redress of the 
 grievances of particular individual citizens of plaintiff state. 
 There must be a direct issue between the states; and. that issue 
 must, by reason of the subject-matter out of which it arises, be 
 susceptible of judicial solution. And one state cannot main- 
 tain a bill in equity to enjoin the execution of the quarantine 
 laws of the defendant state, upon the ground that in the execu- 
 tion of them the officers charged therewith, by rules and regu- 
 lations formed and put in force thereunder by them, unneces- 
 sarily and unreasonably interdict, absolutely and intentionally, 
 interstate commerce between plaintiff and defendant states, 
 and that the governor of the latter permits those rules and reg- 
 ulations to stand and be enforced, although he has the power to 
 modify them, and that such maladministration of its quaran- 
 tine laws injuriously affects the interests of the citizens of plain- 
 tiff state, and is a violation of the constitutional provision giving 
 congi'css the power to regulate interstate commerce. Neither 
 the regulation of interstate commerce, nor the vindication of the 
 freedom of that commerce is committed to any state; and no 
 state is engaged or can engage in interstate commerce; and 
 the absolute and intentional interdiction of commerce between 
 two states by means of unnecessary and unreasonable quaran- 
 
 14 Kansas v. Colorado, 185 U. S. 125-147 (46:838); S. C. 206 U. S. 
 46-48 (51:956). 
 
§ 416 ORIGINAL JURISDICTION OF THE StJPEEME COURT. 339 
 
 tine regulations established and enforced by one of them, does 
 not give a cause of action to the other, although' such quarantine 
 rules and regulations are more stringent than called for by the 
 particular exigency, and have been purposely framed with the 
 view of benefiting the commerce and commercial cities main- 
 taining them, at the expense of the complaining state and its 
 commercial cities.^' 
 
 § 415. Suits by the United States against a state, — ^Under the 
 constitutional grant to the supreme court of original jurisdic- 
 tion ia cases in which a state shall be a party, that court has 
 jurisdiction of a suit filed therein by the United States against 
 one of the states of the Union, to determine the boundary be- 
 tween such state and one of the territories of the United States. 
 A question of boundary between a territory of, the United 
 States and one of the states of the Union is not one of a poli- 
 tical nature, but is one susceptible of judicial determination by 
 a court having jurisdiction of such a controversy; and that 
 jurisdiction is vested, by the constitution, in the supreme 
 court.^" An action of debt may be brought and determined 
 upon its merits in the supreme court, by the United States 
 against one of the states of the Union.^^ 
 
 § 416. The jurisdiction extends to suits of a civil nature only. 
 The mere fact that a state is plaintiff is not a conclusive test 
 that the controversy presented is within thei original jurisdic- 
 tion of the supreme court, and in which that court can grant 
 relief against another state or her citizens or corporations 
 created by her. It is only suits of a civil nature which aire 
 within this jurisdiction, and it does not extend to a suit by a 
 state to recover of the citizens or corporations of another state 
 penalties for a breach of her own municipal laws. The courts 
 of no country or sovereignty execute the penal laws of an- 
 other; and this rule applies not only to prosecutions and sen- 
 tences for crimes arid misdemeanors, but to all suits in favor of 
 the state for the recovery of pecuniary penalties and forfeit- 
 ures for any violation of statutes for the protection of its rev- 
 enues, or otheir municipal laws, and to all judgments for such 
 
 15 Louisiana v. Texas, 176 U. S. it United States v. North Caro- 
 1-28 (44:347). lina, 136 U. S. 211 (34:336). 
 
 16 United States v. Texas, 143 U. 
 S. 621-649 (36:285). 
 
340 FEDERAL PROCEDURE AT LAW. § 417 
 
 penalties. And it has been accordingly held that the supreme 
 court has no original jurisdiction of an action of debt brought 
 by a state against an insurance corporation created by another 
 state upon a judgment recovered by the plaintiff state against 
 the defendant corporation for a penalty imposed by its statutes 
 upon an insurance company for doing business in that state 
 without having deposited in the offie? of the state commissioner 
 of insurance the annual statement of its business and property 
 as required by such statute. ^^ It is well settled that the court 
 has no jurisdiction of a suit brought by a state, the subject- 
 matter of which is political.^' 
 
 § 417. Procedure in the supreme court in cases of original 
 jurisdiction. — The distinction between legal and equitable 
 remedies is recognized in all the courts of the United States ; ^''' 
 and in eases of original jurisdiction in the supreme court, it 
 will frame its proceedings according to those which, at the 
 time of the Revolution, had been adopted in England in analo- 
 gous cases, the rules of the court of king's bench being fol- 
 lowed in actions at law, and the rules of the court of Chancery 
 governing in suits in equity, although the court is not bound 
 to follow that procedure when it would embarrass the case bj^ 
 unnecessary technicalities or defeat the puposes of justice.^^ 
 
 iswisconsin v. Pelican Ins. Co., Co., 157 U. S. 229-271 (39:683); 
 
 127 TJ. S. 265-300 (32:239); U. S. Rhode Island v. Massachusetts, 
 
 Rev. Stat. sec. 687;'* Fed. Stat. 12 Pet. 657 (9:1233); S. C. 13 
 
 Anno. 436. Pet. 23 (10:41); 14 Pet. 210 (10: 
 
 10 Georgia V. Stanton, 6 Wall. 50- 423); |^ 15 Pet. 233 (10:721); 
 
 78 (18:721). Georgia v. Grant, 6 Wall. 241 (18: 
 
 20 White V. Berry, 171 U. S. 366- 848) ; Florida v. Georgia, 17 How.. 
 378 (43:199). 478 (15:181). 
 
 21 California v. Southern Pacific 
 
CHAPTER X. 
 
 THE FEDERAL, APPELLATE JURISDICTION. 
 
 (a) The Appellate Jtjkisdiction 
 OF THE Federal Supbeme 
 Court Over State Courts. 
 
 418. The appellate jurisdiction 
 
 of the federal supreme 
 court over state courts 
 derived from the consti- 
 tution. 
 
 419. Same — Power of congress 
 
 to regulate the exercise 
 of the appellate jurisdic- 
 tion of the supreme 
 court. 
 
 420. Text of the federal statutes 
 
 regulating the exercise of 
 the appellate jurisdiction 
 of the supreme court over 
 the state courts. 
 
 421. Judgment of state court re- 
 
 viewed by supreme court 
 upon writ of error only. 
 
 422. Same — Writ of error de- 
 
 fined by the common law. 
 
 423. Same — Same — A writ of 
 
 error is not the com- 
 mencement of a suit but 
 the continuation of one 
 previously brought. 
 
 424. No re-examination of facts 
 
 upon writ of error from 
 Supreme Court to state 
 court. 
 
 425. Classification of cases in 
 
 which the supreme court 
 has jurisdiction to review 
 the final judgments and 
 decrees of state courts. 
 
 426. The jurisdiction of the su- 
 
 preme court must appear 
 
 from the face of the rec- 
 ord. 
 § 427. When the federal question 
 should be raised. 
 
 428. Same — Discretion of state 
 
 court as to when federal 
 question may be raised. 
 
 429. The federal question must 
 
 be raised and presented 
 in the proper way. 
 
 430. Degree of certainty required 
 
 in setting up the federal 
 question. 
 
 431. Same — Federal question 
 
 must be called to atten- 
 tion of state court. 
 
 432. The opinion , of the state 
 
 court is part of the rec- 
 ord — Certificate of the 
 presiding judge. 
 
 433. Neither petition for writ of 
 
 error noi- assignment of 
 errors forms part of rec- 
 ord. 
 
 434. The supreme court must de- 
 
 termine its own jurisdic- 
 tion. 
 
 435. To give the supreme court 
 
 jurisdiction the federal 
 question must have been 
 decided adversely to the 
 plaintiff in error. 
 
 436. Extent of the jurisdiction 
 
 of the supreme court on 
 writ of error to state 
 court — What questions 
 may be reviewed. 
 
 437. Writ of error lies to re- 
 
 view final judgments only. 
 
342 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 418 
 
 ! 438. Same — Pinal judgment de- 
 fined. 
 
 439. To what court of the state 
 
 the writ of error should 
 be directed. 
 
 440. Same — The writ should 
 
 run to the court where 
 the record remains. 
 
 441. Same — Same — When the 
 
 writ of error is issued be- 
 fore the record is sent 
 down to the inferior 
 court. 
 
 442. The writ of error the foun- 
 
 dation of the jurisdiction. 
 
 443. What judges may allow the 
 
 writ of error. 
 
 444. What clerks authorized to 
 
 issue the writ. 
 
 445. Form and requisites of the 
 
 writ of error. 
 
 446. Service and return of the 
 
 writ of error. 
 
 447. Same — When clerk of state 
 
 court refuses to naake re- 
 turn. 
 
 448. The writ of error may be 
 
 amended 
 
 449. Supersedeas upon writ of 
 
 error — A statutory rem- 
 edy. 
 
 450. Citation in error — By what 
 
 judges signed. 
 
 451. Service of citation in error 
 
 — Upon attorney and 
 counsel of record. 
 
 452. Mode of serving citation in 
 
 error. 
 
 453. Writ of error bond. 
 
 454. The writ of error must be 
 
 brought within two years. 
 
 455. Parties to writs of error. 
 
 456. The plaintiff in error must 
 
 have a personal interest 
 , in the federal question. 
 
 457. The plaintiff in error must 
 
 bring his case within the 
 judiciary act. 
 
 458. Same — Specific classifica- 
 
 tion of federal questions 
 embraced within the stat- 
 ute. 
 
 (6) Appellate Jukisdiction 
 
 Over the Inferior Fed- 
 eral CotTRTS. 
 
 459. Appellate jurisdiction of the 
 
 supreme court over cir- 
 cuit and district courts. 
 
 460. Same — No pecuniary limit. 
 
 461. Same^Two years allowed 
 
 in which to take appeals 
 and writs of error. 
 
 462. Same— Writs of error on 
 
 behalf of the United 
 States in criminal cases 
 where there has been no 
 jeopardy or verdict in 
 favor of defendant. 
 
 463. Appellate jurisdiction of the 
 
 supreme court over the 
 circuit courts of appeals. 
 
 464. Appellate jurisdiction of the 
 
 supreme court over the 
 
 court of claims. 
 4G5. Same — Time and manner 
 
 of taking. 
 466. Appellate jurisdiction of the 
 
 United States circuit 
 
 courts of appeals. 
 466o. Same — Time allowed for 
 
 taking writ of error on 
 
 appeal. 
 
 (a) The Appellate Jurisdiction op the Federal Supreme 
 Court Over State Courts. 
 
 § 418. The appellate jurisdiction of the federal supreme court 
 over state courts derived from the constitution. — The words of 
 the federal constitution defining the judicial power of the 
 
§ 419 FEDERAL APPELLATE JUEISDICTION. , 343 
 
 general government grants to the federal supreme court appel- 
 late jurisdiction in all cases arising under the constitution, 
 laws and treaties of the United States, in whatever court, state 
 or federal, those cases may originate and be decided, and who- 
 ever may be parties to them, and even though a state may be 
 party, and it is immaterial whether the ease be one of a civil 
 or a criminal nature; and from this constitutional grant of 
 appellate judicial power is derived the jurisdiction of the su- 
 preme court to re-examine and revise, upon writ of error, the 
 final judgments and decrees of the highest courts of the states 
 involving a federal .question, when that question is decided 
 adversely to the federal right claimed in the manner prescribed 
 by the federal statute. This appellate jurisdiction is granted 
 directly, and not mediately, by the constitution to the supreme 
 court.^ 
 
 § 419. Same — ^Power of congress to regulate the exercise of 
 the appellate jurisdiction of the supreme court. — While it is 
 true that the appellate jurisdiction of the federal supreme 
 court over the courts of the states in cases arising under the 
 constitution, laws and treaties of the United States, was de- 
 rived directly and not mediately from the fundamental law, 
 yet" it is also true that that instrument vested in congress the 
 power to regulate the exercise of that appellate jurisdiction. 
 The second clause of the second section of the third article 
 of the constitution, after distributing to the supreme court 
 original jurisdiction in two classes of eases, provides that: "In 
 all the other eases before mentioned, the supreme court shall 
 have appellate jurisdiction, both as to law and fact, with such 
 exceptions and under such regulations as the congress shall 
 make; " and, in the exercise of this power, congress has, be- 
 ginning with the twenty-fifth section of the original judiciary 
 act, by statute more fully and clearly defined this appellate 
 jurisdiction, and established regulations for its exercise, which 
 by amendments and judicial construction, have been matured 
 and crystalized into a well-defined system f and a writ of error 
 
 lU. S. const, art III. sees. 1, 2; wealth, 7 Wall. 321-327 (19:223); 
 
 Cohens v. Virginia, 6 Wheat. 264- Ward v. Maryland, 12 Wall. 418- 
 
 448 (5:257); Martin v. Hunter's 433 (20:449). 
 
 Lesees. 1 Wheat. 304-382 (4:97); =1 U. S. Stat, at L. ch. 20, sed 
 
 Ableman v. Booth, 21 How. 506-526 25, pp. 73-79; 14 U. S. Stat, at L. 
 
 (16:169); Twitchell v. Common- ch. 28, sec. 2 p. 38G; 18 U. S. Stat, at 
 
344 . FEDERAL, PROCEDURE AT LAW. § 420 
 
 from the supreme court to revise a judgment or decree of a 
 state court can only be maintained when within the purview of 
 the regulations established by federal legislation on the sub- 
 ject.' 
 
 § 420. Text of the federal statutes regulating the exercise 
 of the appellate jurisdiction of the supreme court over the state 
 courts. — The legislation of congress, enacted pursuant to the 
 power vested in it by the constitution, for the regulation of 
 the appellate power of the supreme court over the courts of the 
 state, has been consolidated in sections seven hundred and nine, 
 nine hundred and ninety-nine and one thousand and three of 
 the United States revised statutes,* the full text of each of 
 which is here given in the order named : 
 
 (1) "A final judgment or decree in any suit in the highest 
 court of a state, in which a decision in the suit could be had, 
 where is drawn in question the validity of a treaty or statute 
 of, or an authority exercised under, the United States, and the 
 decision is against their validity ; or where is drawn in question 
 the validity of a statute of, or an authority exercised under, 
 any state, on the ground of their being repugnant to the consti- 
 tution, treaties, or laws of the United States, and the decision is 
 in favor of their validity; or where any title, right, privilege, 
 or immunity iS claimed under the constitution, or any treaty 
 or statute of, or commission held or authority exercised under, 
 the United States, and the decision is against the title, right, 
 privilege, or immunity specially set up or claimed, by either 
 party, under such constitution, treaty, statute, commission, or 
 authority, may be re-examined and reversed or affirmed in the 
 supreme court upon a writ of error. The writ shall have the 
 same effect as if the judgment or decree complained of had 
 
 L. ch. 8 p. 318; U. S. Rev. Stat. National Bank, 172 U. S. 425-434 
 
 sees. 709, 999, 1003; 4 Fed. Stat. (43:502); Hurley v. Street, 14 
 
 Anno. 467, 468, 610, 616; U. S. Wall. 85-87 (20:786); Caperton v. 
 
 Comp. Stat. pp. 575, 712; Murdock Ballard, 14 Wall. 238-243 (20:885); 
 
 V. Memphis, 20 Wall. 590-642 Armstrong v. Treasurer, 16 Pet. 
 
 (22:429); Columbia Water Power 281-290 (10:905); Crowell v. Ran- 
 
 Co. V. Columbia Electric Street Ry. dall, 10 Pet. 308-399 (9:458) ; U. S. 
 
 Light & Power Co., 172 V. S. 475- Rev. Stat. sec. 709. 
 
 493 (43:521) ; Mutual Life Ins. Co. * Murdock v. Memphis, 20 Wall. 
 
 V. McGrew, 188 U. S. 291-313 (47: 590-642 (22:429) ; Mutual Life Ins. 
 
 480). Co. V. McGrew, 188 U. S. 291-313 
 
 3 Capital National Bank v. First (47:480). 
 
§ 421 FEDERAL APPELLATE JURISDICTION. 345 
 
 been rendered or passed in a court of the United States; the 
 supreme court may reverse, modify, or affirm the judgment or 
 decree of such state court, and may, at their discretion, award 
 execution, or remand the same to the court from which, it was 
 removed by the writ." ° 
 
 (2) "When the writ is issued by the supreme court to a cir- 
 cuit court, the citation shall be signed by a judge of such cir- 
 cuit court, or by a justice of the supreme court, and the ad- 
 verse party shall have at least thirty days' notice; and when 
 it is issued by the supi;eme court to a state court, the citation 
 shall be signed by the chief justice, or judge, or chancellor of 
 such court, rendering the judgment or passing the decree com- 
 plain^ed of, or by a justice of the supreme court of the United 
 States, and the adverse party shall have at least thirty days' 
 notice."® 
 
 (3) "Writs or error from the supreme court to a state court 
 in cases authorized by law, shall be issued in the same manner, 
 and under the same regulations, and shall have the same effect 
 as if the judgment or decree complained of had been rendered 
 or passed in a court of the United States. ' ' '' 
 
 § 421. Judgment of state court reviewed by supreme court 
 upon writ or error only. — Although the constitution declares 
 that the supreme court shall have appellate jurisdiction, 
 "both as to law and fact," in cases arising under the constitu- 
 tion, laws and treaties of the United States, and this jurisdic- 
 tion extends to such suits decided in the state courts, yet the 
 only method or procedure which has ever been provided by 
 congress for the exercise of this appellate jurisdiction to re- 
 examine and revise the judgments and decrees, at law and in 
 equity, of the highest courts of the state is "upon writ of er- 
 ror ' ' only, and not upon appeal, which removes nothing for re- 
 examination by the appellate court but the law of the case.' 
 
 str. S. Rev. Stat. 709; 4 Fed. s Dower v. Richards, 151 U. S. 
 
 Stat. Anno. 467-468; U. S. Comp. 658-673 (38:305); Cohens v. Vir- 
 
 Stat. 1901, p. 575. ginia, 6 Wheat. 264-448 (5:257); 
 
 6U. S. Rev. Stat. 999; 4 Fed. Verden v. Coleman, 22 How. 192 
 
 Stat. Anno. 610; U. S. Comp. Stat. (16:336); Egan v. Hart, 1C5 TJ. S. 
 
 1901, p. 712. 180 (41:680); Chicago, Burlington 
 
 7 U. S. Rev. Stat. sec. 1003 ; 4 & Qulncy Railroad Co. v. Chicago, 
 
 Fed. Stat. Anno. 616; U. S. Comp. 166 U. S. 226-263 (41:979); Bart- 
 
 Stat. 1901, p. 713. lett v. Lockwood, 160 U. S. 368 (40: 
 
346 FEDERAL PROCEDURE AT LAW. § 422 
 
 Th€ distinction between an appeal and a writ of error is, that 
 the former is a process of civil-law origin, and removes a cause 
 entirely, subjecting the facts as well as the law to a review and 
 retrial; while the latter is a process of common-law origin, and 
 removes nothing for re-examination but the law.' This system 
 of review of the judgments of the state courts was adopted 
 in the original judiciary act and has been adhered to ever 
 since, ^° and the provision contained in the seventh amendment 
 of the constitution of the United States, that "no fact tried by 
 a jury shall be otherwise re-examined in any court of the- 
 United States, than according to the rules of the common law,"' 
 applies to casos tried originally in the courts of the states, 
 and since its adoption it is not within the competency of con- 
 gress to allow appeals from state courts of the several states: 
 to the supreme court of the United States in suits at common- 
 law." 
 
 § 422. Same — Writ of error defined by the common law. — A. 
 writ of error is defined by the English common law to be an- 
 original writ, issuing out of the court of chancery, in the na- 
 ture (1) of a certiorari to remove a record upon which a judg- 
 ment has been given from an inferior court of law of record 
 into a superior court, and (2) also in the nature of a commis- 
 sion to the judges of the superior court to examine the record" 
 upon which the judgment was given, and, on such examina- 
 tion, to affirm or reverse the judgment according to law; and 
 
 460) ; Stanley v. Schwalby, 162 U. Santa Fe Railroad Co. v. Matthews, 
 
 S. 278 (40:968); 1 U. S. Stat, at L. 174 XJ. S. 96-125 (43:909). 
 
 ch. 20, sec. 25, pp. 73-79; 14 U. S. oWiscart v. Dauchy, 3 Ball. 321 
 
 Stat, at L. ch. 28, sec. 2, p. 386; (1:619); Dower v. Richards, 151 
 
 18 U. S. Stat, at L. ch. 8, p. 318; U. S. 658-673 (38:305); United 
 
 U. S. Rev. Stat. sec. 709; Clipper States v. Goodwin, 7 Cranch, 108- 
 
 Min. Co. V. Eli. Min. Co., 194 U. S. 112 (3:284); Chicago, Burlington. 
 
 220-235 (48:944); Adams v. & Quincy Railroad Co. v. Chicago, 
 
 Church, 193 U. S. 510-517 (48: 166 U. S. 226-263 (41:979). 
 
 769) ; Thai^er v. Spratt, 189 U. S. i» 1 XJ. S. Stat, at L. ch. 20, sec. 
 
 346-354 (47:845); Western Union 25, pp. 73-79; 14 C S. Stat, at L. ch. 
 
 Telegraph Co. v. Call Pub. Co., 181 28, sec. 2, p. 386; U. S. Rev. Stat. 
 
 U. S. 92-104 (45:765); Hedrick v. sec. 709. 
 
 Atchison, Topeka & Santa Fee n Chicago, Burlington & Quincy 
 
 Railroad Co., 167 U. S. 673-681 Railroad Co. v. Chicago, 166 U. S. 
 
 (42:320); Atchison. Topeka & 226-263 (41:979) ; Parsons v. Bed- 
 ford, 3 Pet. 433-458 (7:732). 
 
§ 422 FEDERAL APPELLATE JUBISDICTION. 347 
 
 the writ lay where a party conceived or alleged himself to be 
 aggrieved by an error in the foundation, proceedings, judg- 
 ment, or execution, of a suit in a court of law of record. The 
 writ of error consisted of two parts, namely: (1) a certiorari 
 to remove the record; and (2) a commission to the judges of 
 the superior court to examine it and affirm or reverse the judg- 
 ment according to law. Upon the principle that the writ was 
 in the nature of a certiorari, it was effectual to remove the rec- 
 ord, if rightly described, although irregularly sued out, and 
 the record remained in the superior court, after the writ was 
 quashed for such irregularity; and upon the principle that it 
 was in the nature of a commission to the judges of the superior 
 coiirt, the writ was not amendable at common law, because nO' 
 court was ever allowed to amend its own commission. The writ 
 was, by the rules of the common law, grantable in all cases ear 
 deiito justitiae, except in treason and felony, in which classes 
 of cases it was necessary to obtain the consent of the king be- 
 fore the writ could is^sue. No writ of error could be issued un- 
 til after judgment had been given, and it was requisite that it 
 should be a judgment upon the whole record ; and, when issued 
 after such judgment, the writ was, by the rules of the common 
 law, a supersedeas by implication. But, if the writ bore teste 
 of a date prior to the judgment, it was no supersedeas and 
 would be quashed. The writ lay only for errors of law appar- 
 ent upon the face of the record, which were not aided or cured 
 at common law, or by some of the statutes of jeofails; and upon 
 a writ of error, there could be no re-examination of facts, but 
 the judges of the superior court, in their examination of the 
 record, were confined to substantial errors of law upon the face 
 thereof: the extent of their jurisdiction was to examine points- 
 of law only, and only those duly presented by the record, and 
 to affirm or reverse the judgment according to law, and in case 
 of reversal to award a venire de novo. The errors of law ex- 
 amined were those which appeared upon the face of the record 
 proper, or which were made of record by bill of exceptions.^^ 
 
 32 Co. Lltt. 2886; 2 Bac. Abr. collecting authorities; 2 Tldd's. 
 
 187; 2 Inst. 4; Queen v. Paty, 2 Practice (1807) 784-791, 1051- 
 
 Salk. 504; 2 Chit. Prac. (1st Am. 1066; Lynes v. The State, 5 Porter 
 
 Ed.) 308, 570,571, 597; 2 Saunder's (Ala.) 236, S. C. 30, Am. Dec. 557- 
 
 report, page 100, extended note 561; Cohens v. Virginia, 6 Wheats 
 
■348 FEDERAL PROCEDURE AT LAW. § 423 
 
 § 423. Same — Same — ^A writ of error is not the commence- 
 ment of a suit but the continuation of one previously brought. — 
 
 The issuance and prosecution of a writ of error are not the 
 commencement and prosecution of a new suit, but are the con- 
 tinuation of a suit previously brought in an inferior court, the 
 writ being employed as the legal process to carry it into a su- 
 pervising court; and, under the federal judiciary act, in con- 
 sonance with the principles of the common law, the effect of 
 the writ is simplj^ to bring the record into the supreme court 
 and submit the judgment of the state court to re-examination, 
 for the sole purpose of inquiring and determining whether the 
 judgment violates the constitution or laws of the United States. 
 The writ of error rather than an appeal was authorized by the 
 judiciary act as the proceeding by which the supreme court 
 should review the judgment of the state courts in stiits involv- 
 ing federal questions, because it is the more usual mode of re- 
 moving suits at common law from an inferior court into a su- 
 perior court for review; and, also, because it is more techni- 
 cally appropriate where a single point of law, and not the 
 whole case, is to be re-examined. The writ of error is not di- 
 rected to, nor does it in any manner act upon the parties; it 
 is directed to the court having custody of the record, and acts 
 only upon the court and upon the record. The writ of error is, 
 therefore, properly directed to the court which holds the pro- 
 ceedings as part of its own records and exercises judicial power 
 over them. The citation is, however, directed to and served 
 upon the defendant in error, simply as a notice to him that the 
 record has been transferred into another court for re-examina- 
 tion upon questions of law, where he may appear or decline 
 to, as his judgment or inclination may determine. But the ci- 
 tation, with its service, while essential to the prosecution of 
 the writ of error after the record is returned, is not a suit, nor 
 has it the effect of original process ; for, if the defendant in er- 
 ror does not choose to appear, no default can be entered 
 against him, and the judgment of the state court is to be re- 
 examined, and reversed or affirmed in like manner as if he had 
 apjjeared and argued his ease.^^ 
 
 ^64-448 (5:257); Cotter v. Ala. G. is Cohens v. Virginia, 6 Wheat. 
 
 S. Co., 10 C. C. A. 35, 36; Kitchen v. 264-448 (5:257) ; Atherton v. Pow- 
 Tlandolph, 93 U. S. 86-92 (23:810). ler, 91 U. S. 143-149 (23:265) ; Kit- 
 
§ 425 FEDERAL APPELLATE JURISDICTION. 349 
 
 § 424. No re-examination of facts upon writ of error from 
 supreme court to state court. — The judiciary act, in iacorpo- 
 rating in the federal system of judicial remedies the common- 
 law writ of error as a procedure for the exercise of appellate 
 judicial power, thereby adopted the common-law incidents of 
 that writ, including the rule that it removes from the inferior 
 to the superior court for review questions of law only; ^* and, 
 therefore, upon a writ of error from the supreme court to a 
 state court, it is the settled rule that the supreme court cannot 
 re-examine the evidence, and has no jurisdiction to review the 
 conclusions of fact found by the state court, and this rule ap- 
 plies to suits in equity as well as to actions at common law.^° 
 
 § 425. Classification of cases in which the supreme court has 
 jurisdiction to review the final judgments and decrees of state 
 courts. — There are, under the federal judiciary act,^^ three 
 classes of cases ^^ in which the supreme court has jurisdiction 
 to review, upon writ of error, the final judgments and decrees 
 of state eoiirts, namely: 
 
 (1) "Where is drawn in question the validity of a treaty, or 
 statute of, or authority exercised under, the United States, and 
 the decision is against their validity.^* 
 
 Chen v. Rd,ndolph, 93 U. S. 86-92 845); Western "Union Telegraph 
 
 (23:810); Nations t. Johnson, 24 Co. v. Call Puh. Co., 181 U. S. 
 
 How. 195-207 (16:628). 92-104 (45:763); Atchison, Topeka 
 
 1* Generes v. Campbell, 11 Wall. & Santa Fe Railroad Co. v. Mat- 
 
 193 (20:110); Payne v. Niles, 20 thews, 174 U. S. 96-125 (43:907); 
 
 How. 219 (15:895); United States Hedrick v. Atchison, Topeka & San- 
 
 T. Dashiel, 3 Wall. 618 (18:268). ta Fe Railroad Co., 167 U. S. 673, 
 
 i5Dow_er v. Richards, 151 U. S. 681 (42:320). 
 658-673 (38:305); Cohens v. Vir- leU. S. Rev. Stat. sec. 709. 
 ginia, 6 Wheat. 264 (5:257); Ver- i' Columbia Water Power Co. v. 
 
 den V. Coleman, 22 How. 192 (10: Columbia Electric Street Ry., 
 
 336) ; Egan v. Hart, 164 U. S. 180 Light & Power Co., 172 U. S. 475- 
 
 (41:680); Chicago, Burlington & 493 (43:521) ; Mutual Life Ins. Co. 
 
 Quincy Railroad Co. v. Chicago, 166 v. McGrew, 188 U. S. 291-313 (47: 
 
 U. S. 226-263 (41:979); Bartlettv. 480). 
 
 Lockwood, 160 U. S. 368 (40:460); is Miller v. Cornwall Railroad 
 
 Stanley v. Schwalby, 102 U. S. 278 Co., 168 U. S. 131-135 (42:409); 
 
 (40:968); Clipper Min. Co. v. Eli Baltimore & Potomac R. Co. v. 
 
 Min. Co., 194 U. S. 220-235 (48: Hopkins, 130 U. S. 210-226 (32: 
 
 944); Adams v. Church, 193 U. S. 908); Stanley v. Schwalby, 162 U. 
 
 510-517 (48:767); Thayer v. S. 255-283 (40:960). 
 Spratt, 189 U. S. 346-354 (47: 
 
350 FEDERAL PEOCEDUftE AT LAW. § 426 
 
 (2) Where is drawn in question the validity of a statute of, 
 or authority exercised under, any state on the ground of their 
 being repugnant to the constitution, treaties, or laws of the 
 United States, and the decision is in favor of their validity.^" 
 
 (3) Or where any title, right, privilege or immunity is 
 claimed under the constitution, or any treaty or statute of, or 
 commission held or authority exercised under, the United 
 States, and the decision is against the title, right, privilege or 
 immunity specially set up and claimed by either party under 
 such constitution, statute, commission or authority.^" . 
 
 § 426. The jurisdiction of the. supreme court must appear 
 from the face of the record. — The jurisdiction of the supreme 
 court of the United States to re-examine, upon writ of error, 
 the final judgment or decree of a state court, cannot arise by 
 mere inference, but must appear by positive and direct aver- 
 ment, or by clear and necessary intendment, from the face of 
 the transcript of the record of the. state court annexed to and 
 returned with the writ of error. It must appear upon the face 
 of that record that some one of the federal questions mentioned 
 in section seven hundred and nine of the revised statutes was 
 raised by the plaintiff in error in the state court and decided 
 there against him, before the supreme court can take jurisdic- 
 tion of the cause. A definite issue as to the validity of a. 
 treaty, or statute of, or authority exercised under the United 
 States, Or as to the validity of a statute of, or authority exer- 
 cised under, a state, or as to the possession of some title, right, 
 privilege or immunity under the constitution, or a treaty or 
 
 18 Schollenberger v. Pennsyl- 131-135 (42:409); Baltimore & Po- 
 
 vania, 171 U. S. 1-30 (43:49); tomac Railroad Co. v. Hopkins, 130 
 
 Brown v. Maryland, 12 Wheat. 419 U. S. 210-226 (32:908). 
 (6:678); Leisy V. Hardin, 135 U. zoQxley Stave Co. v. Butler 
 
 S. 100 (34:128); Columbia Water County, 166 U. S. 648-600 (41: 
 
 Power Co. v. Columbia Electric 1149); Maxwell v. Newbold, 18 
 
 Street Ry., Light & Power Co., 172 How. oil (15:506); Crowell v. 
 
 U. S. 475-493 (43:521) ; Gibbons v. Randell, 10 Pet. 368 (9:458) ; Hoyt 
 
 Ogden, 9 Wheat. 1-240 (6:23); Mc- v. Thompson, 1 Black, 578 (17: 
 
 CuUoch V. Maryland, 4 Wheat. 316- 65) ; Miller v.-Texas, 153 U. S. 535 
 
 437 (4:579); Dartmouth College (38:812); Morrison v. Watson, 
 
 v. Woodward, 4 Wheat. 518-714 154 U. S. Ill (38:927); Mutual 
 
 (4:629); McCulloch v. Virginia, Life Ins. Co. v. McGrew, 188 U. S. 
 
 172 U. S. 102-133 (43:382); Miller 291-313 (47:480). 
 V. Cornwall Railroad Co., 168 U. S. 
 
•§ 427 FEDERAL APPELLATE JURISDICTION. 351 
 
 statute of, or eomnaission held or authority exercised under 
 the United States, must be distinctly deducible from the record 
 ■before the state court can be held to have disposed of a federal 
 question by its judgment. And the determination of the ex- 
 istence of the jurisdiction devolves upon the court itself, and 
 that it must do from the face of the record.^' 
 
 § 427. When the federal question should be raised. — When 
 should the federal question be raised, in order to give the fed- 
 eral supreme court jurisdiction to re-examine the final judg- 
 ment of the state court ? The answer to this question depends, 
 in everj^ case, very largely upon the procedure of the state in 
 which the case originates, and from whose courts it is removed 
 to the supreme court. The language of the judiciary act is 
 "that a final judgment or decree in any suit, in the highest 
 court of law or equity of a state in which a decision in the suit 
 could be had," when the requisite federal question is in- 
 volved, "may be re-examined and reversed or affirmed in the 
 supreme court of the United States upon a writ of error." 
 Each state establishes its own judicial system, with its own 
 forms of procedure. These differ materially in different states, 
 not only as to the jurisdiction of their courts, original and ap- 
 pellate, but also as to the time and manner of raising and pre- 
 senting questions of law, state or federal, in the progress of a 
 case, and whether' the judgments of the courts of original juris- 
 diction will be revised upon questions raised and presented for 
 the first time in the appellate courts, or whether the revising 
 court is confined to questions raised in the trial court, and, if 
 new questions may be presented in the appellate court, when 
 and in what manner' they should be raised and presented. 
 It was not intended that the exercise of the appellate jurisdic- 
 tion of the federal supreme court should interfere with the set- 
 
 21 Powell T. Supervisors of gage Co., 108 U. S. 477-490 (27: 
 
 Brunswick County, 150 TJ. S. 433- 795) ; Leiper v. State of Texas, 139 
 
 442 (37:1134); Oxley Stave Co. v. U. S. 462-468 (35:225); Ex parte 
 
 Butler County, 166 tl. S. 648-660 Spies, 123 U. S. 131-182 (31:80); 
 
 (41:1149) ; Mutual Life Ins. Co. v. Columbia Water Power Co. v. Col- 
 
 McGrew, 188 U. S. 291-313 (47: umbla Electric Street Ry., Light 
 
 480); Sayward V. Denny, 158 U. S. & Power Co., 172 U. S. 475-493 
 
 180-186 (39:941); Murdock v. (43:521); Michigan Sugar Co. v. 
 
 Memphis, 20 Wall. 590-642 (22: Dix, 185 U. S. 112-114 (46:829). 
 429) ; Gross v. United States Mort- 
 
352 PEDEKAL PROCEDURE AT LAW. § 427 
 
 tied judicial procedure of the state courts ; but to take the case 
 after the state courts have discharged their duty in relation to 
 it, and if, upon the record as there made, a federal question 
 appears, to affirm or reverse the judgment according to law. 
 It is, therefore, established as a fundamental principle, that the 
 federal supreme court, in deciding whether the federal ques- 
 tion was seasonably and properly raised, will give due consid- 
 eration and full effect to the settled judicial procedure of the 
 state from which the case comes, in so far as it may be done 
 consistently with the limitations placed upon its- own jurisdic- 
 tion.^^ In consonance with this principle, the decisions have 
 established the following rule upon the subject, namely: — The 
 proper time to raise the federal question is in the trial court 
 and before its judgment is made final, if that be required 
 by the state procedure, and in accordance with which the ap- 
 pellate courts of the state will not revise the judgment of the 
 trial court upon questions not therein raised ; ^^ but if, accord- 
 ing to the state procedure, the judgment of the trial court will 
 be revised by the state appellate court upon questions raised 
 for the first time in such appellate court, then the federal 
 question may be raised in the state appellate court at any time 
 before its decision and judgment are made final, even upon a 
 petition for a rehearing, if the court will entertain the petition, 
 grant the rehearing, and consider and decide the federal ques- 
 tion presented therein, and cause its action in the premises to 
 affirmatively appear from its record and proceedings.^* 
 
 22Crossley v. New Orleans, 108 187 U. S. 356-361 (47:214); Erie 
 
 U.S. 105 (27:667); Gross v. United Railroad v. Purdy, 185 U. S. 148- 
 
 States Mortgage Co., 108 U. S. 477 154 (46:847); Chicago, Indianapo- 
 
 (27:795); R. R. Co. v. Marshall, lis & Louisville Ry. Co. v. McGuire, 
 
 12 How. 165; Cousin v. Labatut, 19 196 U. S. 128-133 (49:413) ; McMul- 
 
 How. 202 (15:601); Murdock v. len v. Perrum Min. Co., 197 TJ. S. 
 
 Memphis, 20 "Wall. 590-642 (22: 343-348 (49:784); French v. Ful- 
 
 429). ler, 199 U. S. 274. 
 
 23 Mutual Life Ins. Co. v. Mc- 24 Mallett v. North Carolina, 181 
 
 Grew, 188 U. S. 291-313 (47:480); U. S. 589-601 (45:1015); Swer-' 
 
 Morrison v. Watson, 154 U. S. Ill- ingen v. St. Louis, 185 U. S. 38-47 
 
 115 (38:927); Ex parte Spies, 123 (46:795); Pirn v. St Louis, 165 V. 
 
 U. S. 131-180 (31:80); Miller v. S. 273-274 (41:714); Leigh v. 
 
 Texas, 153 U. S. 535-539 (38:812); Green, 193 TJ. S. 79-93 (48:623); 
 
 Jacobi V. Alabama, 187 U. S. 133- Pullerton v. Texas, 196 U. S. 192- 
 
 136 (47:106); Layton v. Missouri, 194 (49:443). 
 
§ 429 FEDERAL APPELLATE JURISDICTION.' 353 
 
 § 428. Same — Discretion of state court as to when federal 
 question may be raised. — If, by the local procedure, a federal 
 question may be presented in the supreme court of the state 
 upon a petition for a rehearing, but the court has plenary dis- 
 cretion as to allowing such (Question to be raised at such time' 
 and, in such manner, and actually exercises that discretion and' 
 refuses to entertain and decide it, the supreme court cannot 
 take jurisdiction in such a case.^^ But a state court cannot, 
 under the pretext of enforcing its local procedure, unreason- 
 ably and arbitrarily prevent a party from claiming a federal 
 right, when that claim is seasonably made.-'' 
 
 § 429. The federal question must be raised and presented in 
 the proper way. — The language of the authorities is, that the 
 federal question must be raised and presented, not only at the 
 proper time, but in the proper way. What is the proper way, 
 manner, method or procedure to raise and present the ques- 
 tion ? There is no rule applicable to all cases ; but the way or 
 method is as varied as the incidents of judicial procedure in 
 the progress of a cause from its commencement to final decree. 
 In the light of the adjudicated cases, it may be affirmed that, 
 in order to give the federal supreme court jurisdiction, upon 
 writ of error, to re-examine the final judgment or decree of a 
 state court, the federal question must be raised and presented 
 by some allegation, issue, claim, contention, offer, tender, re- 
 quest, prayer, objection, exception, or other legal proceeding 
 in the progress of the suit, duly made and entered of record in 
 accordance with the requirements of the judicial procedure 
 of the state where the suit arises; ^^ and the word "record," in 
 this connection, is not to be given the restricted meaning which 
 
 25Pullerton v. Texas, 196 U. S. Wheat. 316-437 (4:579); Cohens v. 
 
 192-194 (49:443); Western Elec- Virginia, 6 Wheat. 264-448 (5: 
 
 trie Supply Co. v. Ahbevllle Elec- 257) ; Brown v. Maryland, 12 
 
 trie Light & Power Co., 197 U. S. Wheat. 419 (6:678); Fairfax v. 
 
 299-303 ( 49 : 765 ) . Hunter, 7 Cranch. 603-632 ( 3 : 453 ) : 
 
 26 Rogers V. Alabama, 192 U. S. San Jose Land & Water Co. v. San 
 223-231 (48:419). Jose Ranch Co., 189 XJ. S. 177-185 
 
 27 Mutual Life Ins. Co. v. Mc- (47:705); Manley v. Park, 187 U. 
 Grew, 188 U. S. 291-313 (47:480); S. 547 (47:296); St. Louis Consol. 
 Gibbons v. Ogden, 9 Wheat. 1-240 Coal Co. v. Illinois, 185 XJ. S. 20a 
 (6:23); Dartmouth College v. (46:872) ; Yazoo & Mississippi Val- 
 Woodward, 4 Wheat. 518-714 (4: ley Railroad Co. v. Adams, 180 U. 
 629); McCuUoch v. Maryland, 4 S. 1-25 (45:395); Parmalee v. 
 
 23 
 
354 FEDERAL PEOCEDUEE AT LAW. § 429 
 
 it had at common law, but is to be construed liberally, and in 
 the light of the state system of procedure, and the means and 
 methods afforded by it to litigants for the raising and presen- 
 tation of issues of law and fact and their preservation upon the 
 reeord.^^ 
 
 A federal question may be raised and presented by the issue 
 joined upon a bill and answer in chancery ; ^^ by an " agreed 
 case;" ^" by a special verdict; '^ by a demurrer to an indictment 
 and judgment thereon against the defendant ; ^^ by request or 
 prayer for an instruction to the jury ; ^^ by motion to set aside 
 a judgment ; ^* by motion in arrest of judgment ; ^° by motion 
 to set aside the verdict of the jury and grant a new trial ; ^ 
 by motion to set aside a judgment rendered against the plaint- 
 iff on a demurrer to his declaration, although the question was 
 not so set up in the declaration as to be decided in passing on 
 the demurrer; ^^ by motion for new trial in the trial court, fol- 
 lowed by assignments of error in the state supreme court ; "^ 
 by motion to quash an indictment upon the ground of consti- 
 tutional invalidity in the selection and organization of the 
 grand jury which found and returned it, when the defendant 
 has had no opportunity to challenge the grand array; °' by mo- 
 tion to quash the panel upon the ground of constitutional in- 
 
 Lawrence, 11 Wall. 36-39 (20:48) ; 32 Brown v. Maryland, 12 "Wheat. 
 
 Sweringen v. St. Louis, 185 U. S. 419 (6:678). 
 
 38-47 (46:795). ss National Mutual Building & 
 
 28 Murdock v.' Memphis, 20 Wall. Loan Assn. v. Brahan, 193 TJ. S. 
 
 590-642 (22:429); Armstrong v. 635-651 (48:823). 
 
 Treasurer of Athens County, 16 3*Manley v. Parker, 187 TJ. S. 
 
 Pet. 281-290 (10:965); Crescent 547-553 (47:296). 
 
 City Live Stock Landing and ss Consolidated Coal Co. v. 1111- 
 
 Slaughter House Company v. But- nois, 185 U. S. 203-212 (46:872). 
 
 chers Union, 120 U. S. 141-160 se Chicago, Burlington & Quincy 
 
 (30:614); Moore v. Mississippi, 21 Railroad Company v. Chicago, 166 
 
 Wall. 636-640 (22:653). U. S. 226-263 (41:979). 
 
 20 Gibbons v. Ogden, 9 Wheat. 1- s' Meyer v. Richmond, 172 V. S. 
 
 '240 (6:23); Murdock v. Memphis, 82-101 (43:374). 
 
 20 Wall. 590-642 (22:429). ss San Jose Land & Water Corn- 
 so Fairfax v. Hunter, 7 Cranch. pany v. San Jose Ranch Co., 189 tJ. 
 
 603-632 (3:453); Cohens v. Vir- 8.177-185(47:765). 
 
 ginia, 6 Wheat. 264-448 (5:252); so Rogers v. Alabama, 192 U. S. 
 
 McCulloch V. Maryland, 4 Wheat. 226-231 (49:417); Carter v. Texas, 
 
 316-473 (4:579). 177 U. S. 442-449 (44:839); Neal 
 
 31 Dartmouth College v. Wood- v. Delaware, 103 U. S. 370-409 
 
 ward, 4 Wheat. 518-714 (4:629). (26:576). 
 
§ 430 FEDERAL APPELLATE JURISDICTION. 355 
 
 validity in its selection and organization ; *" by a petition filed 
 by a person indicted in the state court to remove the cause to 
 a federal circuit court for trial, upon the ground that the de- 
 fendant is by the laws of the state denied equality of civil 
 rights ; *^ by reserving exceptions to the action of the trial 
 court in admitting evidence to the jury over the objection of 
 the party, or the rejection of evidence, an exception being duly 
 reserved.*^ 
 
 § 430. Degree of certainty required in setting up the federal 
 question. — The language of section seven hundred and nine, 
 U. S. Eevised Statutes, which defines the jurisdiction of the su- 
 preme court to review, upon writ of error, the final judgments 
 and decrees of state courts, requires a greater degree of certainty, 
 in setting up a federal right under the third class of cases therein 
 mentioned, than in the first and second classes. It requires that 
 the "title, right, privilege, or immunity" be "specially set up or 
 claimed" — that is, "unmistakably" set up and claimed.*^* 
 And the rule is. firmly established, that the jurisdiction of the 
 supreme court to re-examine the final judgment of a state court, 
 under the third division of section seven hundred and nine of 
 "the revised statutes cannot arise from mere inference, but 
 only from averments so distinct and positive as to place it be- 
 yond question that the party carrying the case to the supreme 
 court from the state court intended to assert a federal right. 
 The statutory requirement is not met unless the party unmis- 
 takably declares that he invokes, for the protection of his 
 Tights, the constitution, or some treaty, statute, commission, or 
 authority of the United States.^' 
 
 But the general rule deducible from the adjudicated ca,ses, 
 as to the first and second classes of cases mentioned in the statute 
 is, that, if the federal question appears in the record. and was 
 decided, or such decision was necessarily involved in the case, 
 
 ^oNeal V. Delaware, 103 U. S. *2aOxley Stave Co. v. Butler 
 
 370-409 (26:567); Strauder v. County, 166 V. S. 648-660 (41: 
 
 West Virginia, 100 U. S. 303-312 1149) ; Yazoo & Mississippi Valley 
 
 (25:664). Railroad Co. v. Adams, 180 U. S. 
 
 "iStrauderv. West Virginia, 100 1-25(45:395). 
 
 IT. S. 303-312 (25:664). *3 Michigan Sugar Co. v. Dix, 
 
 42 Thompson v. Missouri 171 U. 185 U. S. 112-114 (46:829); Mu- 
 
 S. 380-388 (43:204); Haddock v. tual Life Ins Co. v. McGrew, 188 
 
 Haddock, 201 U. S. 562-633 (50: U. S. 291-313 (47:480). , 
 867). 
 
356 FEDERAL PKOCEDUEE AT LAW. § 432 
 
 and the ease could not have been decided without deciding^ 
 such question, then the fact that it was not specially set up or 
 claimed will not defeat the jurisdiction of the supreme court.** 
 § 431. Same — Federal question must be called to attention 
 of state court. — While it is true that, as a result of the lan- 
 guage of the statute, less particularity is required in asserting 
 federal rights of the first and second class, than of the third 
 class, yet it is well settled that the right of review by the su- 
 preme court dependent upon the adverse decision of a federal 
 question exists only in those cases where it appears from the 
 record that the federal right relied upon has been brought by 
 adequate specification to the attention of the state court and 
 adversely decided by it, or unless it appears from the record 
 that the judgment rendered could not have been given without 
 deciding the federal question upon which the jurisdiction of 
 the supreme court is invoked. It must appear from the record 
 
 (1) that the federal right was called to the attention of the 
 state court by adequate specification and decided by it, or 
 
 (2) that the judgment rendered necessarily involved its de- 
 termination.*' 
 
 § 432. The opinion of the state court is part of the record — 
 Certificate of the presiding judge. — The second section of the 
 8th supreme court rule, as modified in 1873, is as follows : 
 
 "In aU cases brought to this court, by writ of error or ap- 
 peal, to review any judgment or decree, the clerk of the court 
 by which such judgment or decree was rendered shall annex 
 to and transmit with the record a copy of the opinion or opin- 
 ions filed in the case." 
 
 This provision of the rule embraces opinions of the state 
 courts on writs of error to review their final judgments, and 
 make such opinions part of the record. *° While the certifi- 
 cate of the presiding judge of the state court as to the exist- 
 
 4* Columbia Water Power Co. v. Patten Paper Co., 172 U. S. 58-67' 
 
 Columbia Electric Street Railway, (43:364). 
 
 Light Power Co., 172 U. S. 475- *» Murdock v. Memphis, 20 Wall. 
 
 493 (43:521), and authorities 590 (22:429); Sayward v. Denny, 
 
 cited. 158 U. S. 180 (39:941); United 
 
 « Harding v. Illinois, 196 U. S. States v. Taylor, 147 U. S. 695 (37: 
 
 78-88 (49:394) ; Capital City Dairy 335) ; Gross v. United States Mort- 
 
 Co. V. Ohio, 183 U. S. 238-248 (46: gage Co., 108 U. S. 477-490 (27,:. 
 
 171) ; Green Bay & M. Canal Co. v. 795). 
 
§ 434 FEDEEAL APPELLATE JURISDICTION. 357 
 
 enee of the state of ease upon which the jurisdiction of the su- 
 preme court may be invoked is always regarded with respect, 
 it cannot confer jurisdiction upon the court to re-examine the 
 judgment of the court below; the office of such certificate, as 
 it respects the federal question, is to make more certain and 
 specific what is too general and indefinite in the record, but it 
 is incompetent to originate the question.^'' 
 
 § 433. Neither petition for writ of error nor assignment of 
 errors forms part of record. — It is well settled that neither the 
 petition for writ of error, nor the assignment of errors there- 
 with returned, upon a writ of error from the federal supreme 
 court to a state court, forms any part of the record upon 
 which action can be taken in the supreme court, nor can they 
 supply deficiencies in the record of the state court, if any ex^ 
 ist.*s 
 
 § 454. The supreme court must determine its own jurisdic- 
 tion. — The question whether a title, right, privilege or immun- 
 ity, claimed undor the constitution or laws of the United States, 
 was distinctly and sufficiently pleaded and brought to the 
 notice of the state court, or whether any federal question arises 
 upon the record, is itself a federal question, in the decision of 
 which the federal supreme court, on writ of error, is not con- 
 cluded by the view taken by the highest court of the state ; but 
 the supreme court is by the constitution vested with the ex- 
 clusive power to determine for itself, and it is made its duty 
 to so determine, the question of its own jurisdiction in all eases 
 carried before it upon writ of error to the state courts. The 
 
 *7Parmelee v. Lawrence, 11 S. 462-468 (35:225); Sayward v. 
 Wall. 36 (20:48) ; Powell v. Super- Denny, 158 U. S. 180-186 (39:941) ; 
 visors of Brunswick County, 150 U. WarHeld v. Chaffe, 91 U. S. 690 
 S. 433-442 (37:1134); Fullerton v. (23:383); Wabash Railroad Corn- 
 Texas, 196 U. S. 192-194 (49:443) ; pany v. Plann'igan, 192 V. S. 29-38 
 Allen V. Arguimbau, 198 U. S. 149- (48:328) ; Harding v. Illinois, 190 
 156 (49:990); Marvin V. Front, 199 U. S. 78-88 (49:394); Simmerman 
 U. S. 212; Henkel v. Cincinnati, v. Nebraska, IIG U. S. 54-55 (29: 
 177 U. S. 170-171 (44:720); Dibble 535); Johnson v. New York Life 
 V. Bellingham Bay Land Co., 163 Ins. Co., 187 V. S. 491-496 (47: 
 U. S. 63-74 (41:72); Lawler v. 273); Telluride Power Transmis- 
 Walker, 14 How. 149; R. R. Co. v. sion Co. v. Rio Grande Western 
 Rock, 4 Wall. 177 (18:381). Ry. Co., 187 U. S. 569-585 (47: 
 
 *8 Butler v. Gage, 138 U. S. 52-61 307). 
 (34:809); Leeper v. Texas, 139 U. 
 
358 FEDERAL PEOCEDUEE AT LAW. § 436 
 
 highest function of the supreme court of the United States is 
 to maintain the supremacy of the federal constitution, laws 
 and treaties; and, to execute this power, it must of necessity, 
 determine its own jurisdiction in all eases where that jurisdic- 
 tion is invoked. Otherwise, it would be within the power of the 
 state courts to defeat that jurisdiction altogether.*" 
 
 § 435. To give the supreme court jurisdiction the federal 
 question must have been decided adversely to the plaintiff in 
 error. — It is settled law that, to maintain the jurisdiction of the 
 federal supreme court to re-examine, on writ of error, the final' 
 judgment or decree of a state court, it must affirmatively ap- 
 pear from the record, not only that a federal question was 
 raised and presented for decision by the state court, and within 
 the time and manner required by the state procedure, but that 
 its decision was necessary to the determination of the cause, 
 and that it was actually decided adversely to the plaintiff in 
 error, or that the judgment as rendered could not have been 
 given without deciding it.'^" 
 
 § 436. Extent of the jurisdiction of the supreme court on 
 writ of error to a state court — What questions may be re- 
 viewed. — The federal supreme court, upon writ of error to a 
 state court, has jurisdiction to review federal questions only, 
 and those only which are of a controlling character; and where 
 
 49 Carter v. Texas, 177 U. S. 442- 193) ; De Saussure v. Gaillard, 127 
 
 449 (48:839); Neal v. Delaware, U. S. 216-234 (32:125); Brown v. 
 
 103 tr. S. 370 (26:567); Mitchell Atwell, 92 U. S. 327 (23:511); Citl- 
 
 V. Clark, 110 U. S. 633 (28:279); zens Bank v. Board of Liquidation, 
 
 Boyd V. Nebraska, 143 U. S. 135 98 U. S. 140 (25:114); Chouteau v. 
 
 (36:103); Newport Light Co. v. Gibson, 111 U. S. 200 (28:400); 
 
 Newport, 151 U. S. 527 (38:259); Adams County v. Burlington & M. 
 
 Rogers v. Alabama, 192 U. S. 226- R. R. Co., 112 U. S. 123 (28:678) ; 
 
 231 (48:417); Powell v. Super- Detroit City R. Co. v. Guthard, 114 
 
 visors of Brunswick County, 150 U. TJ. S. 133 (29:118); New Orleans 
 
 S. 433-442 (38:1134). Waterworks Co. v. Louisiana 
 
 00 Murdock v. Memphis, 20 Wall. Sugar Refining Co., 12S V. S. IS 
 
 590-642 (22:429); Harrison v. (31:607) ; Johnson v. Risk, 137 U. 
 
 Morton, 171 U. S. 38-47 (43:63); S. 300-309 (34:683); Blountv. Wal- 
 
 Eustis V. Bolles, 150 U. S. 361-370 ker, 134 U. S. 607-614 (33:1036); 
 
 (37:1111); Cook County v. Calu- Morrow v. Brinkley, 129 U. S. 178 
 
 met & C. Canal & D. Co., 138 U. S. 181 (32:654) ; Kansas Endowment 
 
 635 (34:1110); Walter A. Wood & Benev. Assn. v. Kansas, 120 tJ. 
 
 Mowing and Reaping Machine Co. S. 103 (30:593) ; Church v. Kelsey 
 
 V. Skinner, 139 U. S. 293-297 (35: 121 U. S. 282 (30:900). 
 
§ 436 FEDERAL APPELLATE JURISDICTION. 359 
 
 the supreme eoiirt of a state, in rendering a final judgment, de- 
 cides a federal question against the plaintiff in error, and also 
 decides against him upon a question not federal in its nature, 
 and the decision upon either one of the grounds is broad 
 enough to support the judgment of the state court, the federal 
 supreme court will afBrm the decision of the state court, with- 
 out considering the federal question or expressing any opinion 
 on it, although it was wrongly decided by the state court, or 
 else dismiss the writ of error.^^ If the judgment of the state 
 court rests on two groimds, one involving a federal question 
 and the other not, or if it does not appear on which of two 
 grounds the judgment is based, and the ground independent 
 of the federal question is sufficient in itself to sustain it, the 
 federal supreme court will not take jurisdiction."^ 
 
 The federal supreme court, in a carefully considered case, 
 stated the doctrine on this subject as follows: 
 
 "Finally, we hold the following propositions on this subject, 
 as flowing from the statute as it now stands: 
 
 "1. That it is essential to the jurisidiction of this court over 
 the judgment of a state court, that it shall apear that one of 
 the questions mentioned in the act must have been raised, and 
 presented to the state court. 
 
 "2. That it must have been decided by the state court, or 
 that its decision was necessary to the judgment or decree, ren- 
 dered in the case. 
 
 "3. That the decision must haA'e been against the right 
 claimed or asserted by plaintiff in error under the constitution, 
 treaties, laws or authority of the United States. 
 
 "4. These things appearing, this court has jurisdiction and 
 must examine the judgment so far as to enable it to decide 
 whether this claim of right was correctly adjudicated by the 
 state court. 
 
 51 Hale V. Akers, 132 IT. S. 554- 1111) ; Dower v. Richards, 151 TT. 
 
 565 (33:442); Murdock v. Mem- S. 658 (38:305) ; Wader v. Lawder, 
 
 phis, 20 Wall. 590-642 (22:429); 165 U. S. 624 (41:851). 
 Jenkins v. Lowenthall, 110 U. S. ^- Allen v. Arguimhau, 198 TJ. S. 
 
 222 (28.129); Giles v. Teasley, 149-156 (49:990); Dibble v. Bell- 
 
 193 U. S. 146-167 (48:655); New ingham Bay Land Co., 163 U. S. 
 
 Orleans v. New Orleans Water- 63 (41:72); Klinger v. Missouri, 
 
 works Co., 142 U. S. 79 (35:943); 13 Wall. 257 (20:635); Johnson v. 
 
 Bustis V. Belles, 150 U. S. 361 (37: Risk, 137 U. S. 300 (34:683). 
 
360 FEDERAL PROCEDURE AT LAW. § 437 
 
 "5. If it finds that it was rightly decided, the judgment 
 must be affirmed. 
 
 "6. If it was erroneouslj' decided against plaintiff in error, 
 then this court must further enquire, whether there is any 
 other matter or issue adjudged by the state court, which is suf- 
 ficiently broad to maintain the judgment of that court, not- 
 withstanding the error in deciding the issue raised by the fed- 
 eral question. If this is found to be the case, the judgment 
 must be affirmed without inquiring into the soundness of the 
 decision on such other matter or issue. 
 
 "7. But if it be found that the issue raised by the question 
 of federal law is of such controlling character that its correct 
 decision is necessary to any. final judgment in the case, or 
 that there has been no decision by the state court of any other 
 matter or issue which is sufficient to maintain the judgment 
 of that court without regard to the federal question, then this 
 court will reverse the judgment of the state court, and will 
 either render such judgment here as the state court should 
 have rendered, or remand the case to that court, as the circum- 
 stances of the case may require.'"'^ 
 
 § 437. Writ of error lies to review final judgment only. — A 
 writ of error from the federal supreme court to a state court 
 lies to review a final judgment only; and unless the judgment 
 of the state court possesses the quality and character of finality 
 the supreme court has no jurisdiction, and the writ of error will 
 be dismissed when it appears that the judgment sought to be 
 reviewed is not final.^* The language of the judiciary act is 
 that, "a final judgment or decree in any suit in the highest 
 court of a state, in which a decision in the suit could be had, ' ' 
 where one of the enumerated federal questions is involved."' 
 
 53 Murdock V. Memphis, 20 Wall. nesota Thresher Mfg. Co., 145 U. 
 
 590-642 (22:429). S. 608 (36:834); Hume v. Bowie, 
 
 54 Houston V. Moore, 3 Wheat. 148 TJ. S. 245 (37:438); Werner v. 
 433-435 (4:428); Bostwick v. Charleston, 151 XJ. S. 360 (38:192) ; 
 Brinkerhoff, 106 U. S. 3-4 (27: Kimball v. Evans, 93 U. S. 320-321 
 73); Johnson v. Keith, 117 U. S. (23:920); Drake v. Kochersper- 
 199 (29:888); Union Mutual Life ger, 170 U. S. 303 (42:1046); Call- 
 ins. Co. V. Kirchoff, 160 U. S. 374- fornia National Bank v. Stateler, 
 378 (40:461) ; Brown v. The Marion 171 U. S. 447-449 (43:233) ; Schlos- 
 National Bank, 146 U. S. 619-620 ser v. Hemphill, 198 TJ. S. 173-176 
 (36:1106); Rice v. Sanger, 144 U. (49:1000). 
 S. 197 (36:403); Meagher v. Min- 55 u. S. Rev. Stat. sec. 709. 
 
§ 438 FEDERAL APPELLATE JURISDICTION. 361 
 
 § 438. Same: — Final judgment defined. — The rule is well 
 settled and of long standing, that a judgment or decree of a 
 state court to be final, within the meaning of that term, as 
 used in the federal judiciary act giving the federal supreme 
 court jurisdiction on appeals and writs of error, must termin- 
 ate the litigation between the parties on the merits of the case, 
 so that if there should be an affirmance of it in the supreme 
 court the state court would have nothing to do but to execute 
 the judgment or decree it had already rendered; and, conse- 
 quently, it has been uniformly held that a judgment of re- 
 versal by a supreme court of a state, with leave for further 
 proceedings in the trial court, cannot be carried to the federal 
 supreme court on writ of error.''^ The settled rule is that if 
 a superior court makes a decree fixing the liability and rights 
 of the parties, and refers the case to a master or subordinate 
 court for a judicial purpose, such, for instance, as a statement 
 of account upon which a further decree is to be entered, the 
 decree is not final. ^' The face of the judgment is made the 
 test of its finality, and the supreme court cannot be called on 
 to inquire whether, when a case is 'sent back, the defeated party 
 might or might not make a better case.^' A judgment of a 
 state supreme court reversing the judgment of the lower 
 court, with directions to sustain a demurrer to plaintiff's peti- 
 tion, is not a final judgment reviewable on writ of error, where 
 the statutes of the state permit an amendment of the petition 
 after the demurrer has been sustained.^" 
 
 ssBostwick V. Brinkerhoff, 106 Stateler, 171 U. S. 447-449 (43: 
 
 U. S. 3-4 (27:73); Union Mutual 233); Craighead v. Wilson, 18 
 
 Life Ins. Co. V. Kirchoff, IGO U. S. How. 199 (15:668); Keystone 
 
 374-378 ($0:461); Schlosser v. Manganese & Iron Co. v. Martin, 
 
 Hemphill, 198 U. S. 173-176 (49: 132 U. S. 91 (33:275); Lodge v. 
 
 1000); Haseltine v. Central Na- Twell, 135 U. S. 232 (34:153) ; Mc- 
 
 tlonal Bank, 183 TJ. S. 130-132 Gourkey v. Toledo & Ohio C' Ry. 
 
 (46:117) ; McComb v. Knox Coun- Co., 146 U. S. 536 (36:1079) ; Union 
 
 ty, 91 U. S. 1-2 (23:185); Moore Mutual Life Ins. Co. v. KirchofE, 
 
 V. Robbins, 18 Wall. 588 (21:758) ; 160 U. S. 374 (40:985) ; Hollander 
 
 St. Clair County v. Livingston, 18 v. Fechheimer, 162 U. S. 326 (40: 
 
 Wall. 628 (21:813); Zellerv. Swit- 985). 
 
 zer, 91 U. S. 487 (23:366); Cincin- os Haseltine v. Central National 
 
 nati Street Ry. Co. V. Snell, 179 U. Bank, 183 U. S. 136 (46:17); 
 
 S. 395-398 (45:248); Great West- Schlosser v. Hemphill, 198 U. S. 
 
 em Telegraph Co. V. Burnham, 162 173-176 (49:1000). 
 
 U. S. 339-346 (40:991). -o Clark v. City of Kansas City, 
 
 ■ 07 California National Bank v. 172 U. S. 334-338 (43:467). 
 
362 FEDERAL PROCEDURE AT LAW. § 43& 
 
 § 439. To what court of the state the writ of error should 
 be directed. — Inasmuch as each state was, under the federal 
 constitution, left free to establish its own judicial system, and 
 define the jurisdiction of its own courts, it was contemplated 
 by the congress which passed the original judiciary act that 
 suits would arise involving a federal question which, accord- 
 ing to the state law, could not be carried to the highest court 
 of the state, and it was, therefore, provided by the statute that 
 the writ of error should run to "the highest court of a state in 
 which a decision of the suit could be had;" '"' and, accordingly, 
 in one of the great and leading cases, and in which the juris- 
 diction was most strenuously contested, the writ of error was 
 directed to the "Court of Hustings for the borough of Nor- 
 folk," in the state of Virginia, "it being the highest court of 
 law or equity of that state having jurisdiction of the case," "^ 
 and in a more recent case a writ of error from the federal su- 
 preme court was directed to the "corporation court of the city 
 of Alexandria, state of Virginia," that being the highest court 
 in the state in which a decision in the suit could be had."^ If 
 a decision of a suit can be had in the highest court of a state, 
 the federal supreme court must wait for such decision before 
 it can take jurisdiction, and it can then only examine the 
 judgment of that court; but if the suit is one of which the 
 highest court in the state cannot take jurisdiction, the federal 
 supreme court may re-examine the judgment of the highest 
 court, which under the laws of the state could decide it; and 
 it has long been settled that if a suit cannot be taken to the 
 highest court of a state, except by leave of the court itself, a 
 refusal of the court upon proper application made to grant 
 the leave, is equivalent to a judgment of affirmance, and is 
 such a final judgment as may be made the basis of proceedings 
 under the appellate jurisdiction of the federal supreme court,"* 
 but in such ease it must affirmatively appear from the record 
 that an application for the allowance of an appeal or writ of 
 error to the highest court of the state was made and refused."* 
 
 6o'u. S. Rev. Stat. sec. 709. Veigh, 93 U. S. 274-284 (23:914); 
 
 61 Cohens v. Virginia, 6 Wheat. Bacon v. Texas, 163 U. S. 207-228 
 
 264-448 (5:257). (41:132) ; Stanley v. Schwalby, 162 
 
 (12 Gregory v. McVeigh, 23 Wall. U. S. 255 (40:960) ; Clark v. Penn- 
 
 294-307 (23:156). sylvania, 128 U. S. 395 (32:487) . 
 
 03 Gregory v. McVeigh, 23 Wall. 64 Fisher, v. Carrico, 122 U. S> 
 
 294-307 (23:156); Winsdor v. Mc- 522-527 (30:1192). 
 
§ 441 FEDERAL APPELLATE JUKISDICTION. 365 
 
 § 440. Same — The writ should run to the court where thei 
 record remains. — It was shown in a previous part of this chap- 
 ter, that a writ of error as defined by the common law, and 
 within the meaning of the federal' judiciary act, is a writ 
 in the nature (1) of a certiorari to remove a record upon which 
 a judgment has been given from an inferior court of record 
 into a superior court, and (2) in the nature of a commission 
 to the judges of the superior court to examine the record, and,, 
 on such examination, to affirm or reverse the judgment accord- 
 ing to law, and that, in removing the record the writ acts, not 
 upon the parties, but upon the record and the court having- 
 custody of it : "^ and it is, therefore, a fundamental rule that, 
 in the exercise of appellate jurisdiction by writ of error, the 
 writ must be directed to the court where the record remains ; "^ 
 and if the court of a state, 'after deciding a cause, acting in 
 conformity to the laws of the state, remits the record to an 
 inferior court where the judgment is entered and the record 
 remains, the writ of error should run to the inferior eourt.°^ 
 
 § 441. Same — Same — When the writ of error is issued before 
 the record is sent down to the inferior court. — ^Although the rule 
 is firmly established that, when the highest court of the state, 
 in obedience to the state practice and procedure, remits the re- 
 cord, after decision, to the inferior court, the writ should run 
 to the inferior court, yet it is also settled that if the v^rit of 
 error be issued before the state supreme court has actually 
 
 65 Ante, sees. 422, 423. Wall. 294 (23:156) ; Cohens v. Vir- 
 es Atherton V. Fowler, 91 U. S. ginla, 6 Wheat. 264-448 (5:257); 
 143-149 (23:265). Gelston v. Hoyt, Clark v. Pennsylvania, 128 U. S. 
 3 Wheat. 246-335 (4:581); Hoag- 395 (32:487); Fisher v. Carrico, 
 land V. Wurts, 105 U. S. 701-703 122 U. S. 522-527 (30:1192). 
 (26:1109); Polleys v. Black River 67 Atherton v. Fowler, 91 U. S, 
 Improvement Co., 113 U. S. 81-84 143-149 (23:265); Gelston v. Hoyt, 
 (28:938); Wedding v. Meyler, 192 3 Wheat. 246-335 (4:381); Hoag- 
 U. S. 573-585 (48:570); Lee v. land v. Wurts, 105 U. S. 701-703 
 Johnson, 115 U. S. 48-53 (29:570) ; (26:1109) ; Polleys v. Black River 
 People V. Squire, 145 U. S. 175-191 Improvement Co., 113 U. S. 81-84 
 (36:666); Rothschild v. Knight, (28:938) ; Wedding v. Meyler, 192 
 184 TJ. S. 334-342 (46:573); Mc- U. S. 573-585 (48:570); Lee v. 
 Donald v. Massachusetts, 180 U. S. Johnson, 115 U. S. 48-53 (29:570) ; 
 311-313 (45:542); Bacon v. Texas, People v. Squires, 145 U. S. 175- 
 163 U. S. 207-228 (41:132); Stan- 191 (36:666); Haddock v. Had- 
 ley V. Schwalby, 162 U. S. 255-283 dock, 201 U. S. 562-633 (50:867). 
 (40:960); Gregory v. McVeigh, 23 
 
■364 FEDERAL PROCEDURE AT LAW. § 444 
 
 sent the record down to the inferior court, it should be directed 
 to the former and not to the latter court, for in contemplation 
 of law the record is in the possession and custody of the higher 
 court until it is actually remitted to the lower court."* 
 
 § 442. The writ of error the foundation of the jurisdiction. 
 The allowance of the writ of error, and its issuance, by com- 
 petent authority, and its service, constitute the foundation of 
 the jurisdiction of the federal supreme court to review and re- 
 vise the final judgments and decrees of state courts. "^ The al- 
 lowance alone is not sufficient ; but the writ must be actually 
 issued and served, before the jurisdiction attaches.'" 
 
 § 443. What judges may allow the writ of error. — Any 
 judge authorized to sign a citation may allow the writ of 
 error. The federal statute provides that the citation shall be 
 ■signed by the chief justice, or judge or chancellor of the state 
 court rendering the judgment or passing the decree com- 
 plained of, or by a justice of the supreme court of the United 
 States ; '^ and it is now settled that when the supreme court 
 of a state is composed of a chief justice and several associate 
 justices, and the judgment complained of was rendered by 
 that court the writ of error can be allowed only by the chief 
 justice of that court, or by a justice of the federal supreme 
 court, but if the judgment complained of was rendered by a 
 state court composed of a single judge or chanceilor, the writ 
 of error may be allowed by that judge or chancellor, or by a 
 justice of the supreme court of the United States.'^ 
 
 § 444. What clerks authorized to issue the writ of error. — It 
 is still an open question whether,' when a writ of error is al- 
 lowed by a judge of a state court to review its own judgment 
 by the federal supreme court, the clerk of the state court has 
 authority to issue the writ; but the federal statute gives no 
 
 esHoagland v. Wurts, 105 U. S. Van Duzer, 9 Wall. 784 (19:827); 
 
 701-703 (26:1109); New Jersey v. Northwestern Union Packet Co. v. 
 
 Wilson, 7 Cranch. 164 (3:303); Ins. Co., 12 Wall. — (20:463). 
 
 Bridge Props, v. Hoboken Co., 1 toex parte Ralston, 119 U. S. 
 
 Wall. 116 (17:571); New Jersey V. 613-615 (30:500). 
 
 Yard, 95 U. S. 104 (24:352). fi U. S. Rev. Stat. sec. 999. 
 
 08 Butler V. Gage, 138 U. S. 52- 72 Butler v. Gage, 138 U. S. 52-61 
 
 ■CI (34:869); Gleason v. Florida, 9 (34:869); Havnor v. New York, 
 
 Wall. 779-784 (19:730); Ex parte 170 U. S. 408-411 (42:1087); Barte- 
 
 Ralston, 119 U. S. 613-015 (30: meyer v. Iowa, 14 Wall. 26-28 (20: 
 
 .506); Hartford Fire Ins. Co. v. 792). 
 
§ 446 FEDERAL APPELLATE JURISDICTION. BOS' 
 
 such authority, and it has been the prevailing custom from th& 
 beginning for the elerk of the federal supreme court, or of the 
 United States circuit court for the proper district to issue the- 
 writ, and for such writ to be lodged with the clerk of the state- 
 court whose judgment is complained of and sought to be re- 
 viewed. It has, however, never been held that the signature 
 of the elerk of the state court was fatal to the writ, and such 
 irregularities have been allowed to be corrected by amend- 
 ment after the return of the writ." 
 
 § 445. Form and requisites of the writ of error. — The writ 
 of error is the writ of the supreme court of the United States, 
 and bears teste of the chief justice of the United States, or, 
 when that office is vacant, of the associate justice next in pre- 
 cedence, from the day of its issuance, and runs in the name of 
 "The President of the United States," and is directed to the 
 judges of the state court whose judgment is complained of 
 and sought to be re-examined, and commands them to send 
 under the seal of their court the record and proceedings in the 
 cause, together with the writ, to the supreme court of the United 
 States, within thirty days from the date of the writ." 
 
 § 446. Service and return of the writ of error. — The writ of 
 error is served by depositing a copy or the original with the 
 clerk of the court to whose judges it is directed; and it is this 
 filing of the writ with the clerk that removes the record from 
 the inferior to the appellate court.'" As to the return of the 
 writ, the federal statute provides that: "There shall be an- 
 nexed to and returned with any writ of error for the removal 
 
 T3 Texas & Pacific Ry. Co. v. Rule VIII; U. S. Rev. Stat sec. 
 
 Kirk, 111 U. S. 486-487 (28:481); 997, 4 Fed. Stat. Anno. 605; and 
 
 Miller v. Texas, 153 U. S. 535-539 see form of writ transmitted by 
 
 (38:812); Ex parte Ralston, 119 the clerk of the supreme court to 
 
 XJ. S. 613 (30:506); McDonough v. the clerks of the circuit courts, 
 
 Millaudon, 3 Ho-w. 693 (11:787); under authority of the act of May 
 
 TJ. S. Rev. Stat. sees. 1003, 1004; 8, 1792, ch. 36, sec. 9, now section 
 
 Buel V. Van Ness, 8 Wheat. 320 1004 U. S. Rev. Stat, in 2 Bates 
 
 (5:626). Fed. Eq. Proc. pp. 1275, 1276. 
 
 7* U. S. Rev. Stat. sees. 911, 912, rs Ableman v. Booth, 21 How. 
 
 1003, 1004, 4 Fed. Stat. Anno. 560, 506 (16:169); Mussina v. Cavazos, 
 
 561, 616; Bondurant V.Watson, 103 6 Wall. 355-363 (18:810); David- 
 
 U. S. 270-280 (26:447); Texas & son v. Lanier, 4 Wall. 447; Wood 
 
 Pacific Ry. Co. V. Kirk, 111 V. S. v. Lide, 4 Cranch, 180. 
 486-487 (28:481); Supreme Court 
 
.366 FEDERAL PEOCEDUEE AT LAW. § 448 
 
 of a cause, at the day and place therein mentioned, an authen- 
 ticated transcript of the record, an assignment of errors, and 
 n prayer for reversal, with a citation to the adverse party;" ^^ 
 and a supreme court rule provides that, "the clerk of the court 
 to which any writ of error may be directed shall make return 
 •of the same, by transmitting a true copy of the record, and of 
 the assignment of errors, and of all proceedings in the case, 
 under his hand and the seal of the court." ^' 
 
 § 447. Same — When clerk of state court refuses to make re- 
 turn. — In a great case where the federal supreme court issued 
 its writ of error to a state court to review t)ne of its judg- 
 ments, the state court ordered their clerk to disegard and re- 
 fuse obedience to the writ, and to make no return thereto, 
 which order the clerk obeyed; and upon proof by affidavit of 
 the service of the writ, and an order upon the clerk to make 
 return, and proof of the service of the order, and continued 
 disobedience of the writ, the supreme court permitted a cer- 
 tified copy of the record of the state court produced with the 
 application for the writ of error to be filed and to be received 
 and entered on the docket of the court, and to have the same 
 effect and legal operation as if returned by the clerk with the 
 writ of error, and that the case stand for argument at the next 
 ensuing term of the court, without further notice to either 
 party, the citation having been duly served.^^ 
 
 § 448. The writ of error may be amended. — By the rule of 
 the common law, a writ of error could not be amended, but by 
 an English statute it was provided that "all writs of error, 
 wherein there shall be any variance from the original record, 
 or other defect, may and shall be amended, and made agree- 
 able to such record, by the respective courts where such writs 
 of error shall be made returnable, ' ' ''^ and such was the rule 
 for a long time in the federal supreme court ;^° but that has 
 been remedied by a federal statute, which provides as follows : 
 
 "The supreme court may, at any time, in its discretion, and 
 
 70 U. S. Rev. Stat. sec. 997. so ins. Co. v. Mordecai, 21 How. 
 
 77 XJ. S. Supreme Court Rule 195; Porter v. Foley, 21 How. 393 
 .Vni, sec. 1. Carroll v. Dorsey, 20 How. 204 
 
 78 AWeman V. Booth, 1 How. 506- Hodge v. Williams, 22 How. 87 
 526 (16:109). Wilson v. Life Ins. Co., 12 Pet. 140 
 
 70 2 Tidd's Practice (1807) 1093; Deneale v. Archer, 8 Pet. 520 
 act 5, George I, ch. 13. , Davenport v. Fletcher. 10 How. 
 
§ 418 FEDERAL APPELLATE JURISDICTION. 367 
 
 upon such terms as it may deem just, allow an amendment of a 
 writ of error, when there is a mistake in the teste of the writ, 
 or a seal of the writ is wanting, or when the writ is made re- 
 turnable on a day other than the day of the commencement of 
 the term next ensuing the issuance of the writ, or when the 
 statement of the title of the action or parties thereto in the 
 writ is defective, if the defect can be remedied by reference to 
 the accompanying record, and in all other particulars of form : 
 Provided, the defect has not prejudiced, and the amendment 
 will not injure the defendant in error. ' ' °^ Under this statute, 
 the right of a party to amend a writ of error is not absolute, 
 but leave to amend is to be granted by the court in its discre- 
 tion, and whether it should be granted in any particular case 
 must depend upon the attending circumstances.^^ Under this 
 statute, the supreme court has allowed a writ of error amended, 
 which bore a wrong teste and seal;^^ which contained a wrong 
 return day ; ** which contained no return day at all ; *^ which 
 described either party by the name of a partnership, and not 
 by the names of the individuals composing it ; ^° which gave the 
 christian name of the plaintiff below as Henry, when, as ap- 
 peared from the record, it should have been George ; *^ which 
 named only one defendant in error, when there were more.** 
 
 But these adjudications establish the rule that the amend- 
 ment rests in the discretion of the court, and will not be al- 
 lowed if there is danger of prejudice to the adverse party, or 
 if there is any good reason against it, as, for instance, that the 
 
 142; Miller v. McKenzie, 10 Wall. Louis v. National Bank of Com- 
 
 582; Mussina v. Cavazos, 6 Wall, merce of New York, 99 U. S. 608 
 
 355; Moulder v. Forest, 154 TJ. S. (25:362). 
 
 567. 85Atlierton v. Fowler, 91 tJ. S. 
 
 81 17 U. S. Stat, at L. ch. 255, p. 143 (23:265); Evans v. Brown, 
 
 196 (act June 1, 1872); U. S. Rev. 109 U. S. 180 (27:898). 
 
 Stat. sec. 1005; 4 Fed. Stat. Anno. se Moore v. Simonds, 100 U. S. 145 
 
 617. (25:590) ; Gimble v. Pitkin, 113 U. 
 
 82 Pearson v. Yewdall, 96 U. S. S. 545 (28:1128); Estes v. Trabue, 
 94-296 (24:436); Walton v. Mari- " 128 U. S. 225 (32:437); United 
 etta Co., 157 U. S. 347 (39:727). States v. Schoverling, 146 U. S. 76 
 
 83 Texas & Pacific Ry. Co. v. (36:893). 
 
 Kirk, 111 U. S. 486 (28:481). 87 Pacific Nat. Bank of Boston v. 
 
 84 Hampton v. Rouse, 15 Wall. Mixter, 114 U. S. 463 (29:221); 
 684 (21:20); Semmes v. United as Knickerbocker L. Ins. Co. v. 
 States, 91 U. S. 21 (23:193); Na- Pendleton, 115 U. S. 339 (29:432). 
 tional Bank of Commerce of St. 
 
368 FEDERAL PEOCEDUEE AT LAW. § 449 
 
 main question presented by the record has been often decided 
 by the court adversely to the claims of the plaintiff in error.*^ 
 
 § 449. Supersedeas upon writ of ferror. — A statutory remedy. 
 At the common law, a writ of error issued before an execu- 
 tion was executed was a supersedeas by implication without 
 bond;'" but, under the federal judicial system, the remedy by 
 supersedeas is purely a statutory remedy, and is obtainable by 
 a strict compliance with all the required conditions, none of 
 which can be dispensed with, and time is an essential element 
 in the proceeding, and one which neither the court nor the 
 judges can disregard, and if a delay beyond the limited time 
 occurs, the right to the remedy is gone, and the successful party 
 holds his judgment or decree freed and discharged from super- 
 sedeas as a means of staying the proceedings for its collection 
 and enforcement.''^ In order to avoid the common-law rule, and 
 to better protect the rights of litigants, it has been enacted by 
 congress as follows: 
 
 ■'In any cases where a writ of error may be a supersedeas, 
 the defendant may obtain such supersedeas by serving the writ 
 of error, by lodging a copy thereof for the adverse party in 
 the clerk's office where the record remains, within sixty days, 
 Sundays exclusive, after the rendition of the judgment com- 
 plained of, and giving the security required by law on the is- 
 suing of the citation. But if he desires to stay process on the 
 judgment, he m^, having served the writ of error as afore- 
 said, give the security required by law within sixty days after 
 the rendition of such judgment, or afterward with the permis- 
 sion of a justice or judge of the appellate court. And in such 
 cases where a writ of error may be a supersedeas, executions 
 shall not issue until the expiration of ten days." "^ A justice 
 of the supreme court has no power to allow a supersedeas in 
 cases where no appeal or writ of error was sued out and served 
 within sixty days, exclusive of Sundays, after the rendition of 
 the decree or judgment complained of;°^ and to make a nunc 
 pro tunc order for a supersedeas effectual, it must appear that 
 
 89 Walton V. Marietta Co., i57 U. 92 U. S. Rev. Stat. sec. 1007; i 
 
 S. 342-348 (39:725). Fed. Stat. Anno. 618. 
 
 soTidd's Practice (1807) 1072. os Kitchen v. Randolph, 93 U. S. 
 
 91 Kitchen v. Randolph, 93 U. S. 86-92 (23:810). 
 86-92 (23:810); Sage v. Cent. Ry. 
 Co., 93 U. S. 412-420 (23:933). 
 
§ 451 PEDERAX, APPELLATE JURISDICTION, 369 
 
 the delay was the act of the court and not the act of the par- 
 ties, and that injustice will be done unless the order be made 
 effectual." 
 
 In order that a writ of error may operate as a svrpersedeas^ 
 it is necessary that a copy of the writ should be lodged for the 
 adverse party in the clerk's office where the record remains, 
 and that the bond approved by the judge allowing the writ 
 should also be filed. Execution cannot issue upon the judg- 
 ment until the expiration of ten days, exclusive of Sundays, 
 from the entry thereof; and if the writ of error and bond are 
 filed before the expiration of the ten days, no execution can 
 issue so long as the case in error remains undisposed of. After 
 the expiration of the ten days an execution may issue, if the 
 writ and bond have not been filed j but, notwithstanding this, 
 under the provisions of the statute above quoted, upon the 
 filing of the bond and writ within sixty days from the time 
 of the entry of the judgment, a supersedeas may be obtained, 
 but it will, however, stay proceedings only from the filing of 
 the bond, and will prevent further proceedings under the 
 execution which has been issued, but will not interfere with 
 what has already been done."' 
 
 § 450. Citation in error — By what judges signed. — When the 
 writ of error "is issued by the supreme court of the United 
 States to a state court, the citation shall be signed by the chief 
 justice, or judge, or chancellor of such court, or by a justice of 
 the supreme court of the United States, and the adverse party 
 shall have at least thirty days notice."* 
 
 § 451. Service of citation in error — Upon attorney and coun- 
 sel of record, — Citation in error, as was shown in a previous 
 section, is not, in the federal judicial system, an original writ, 
 nor the commencement of a new suit, but a summons or notice 
 to the defendant in error to advise him that the record in the 
 cause has been removed to the appellate court for re-examina- 
 tion upon points of law."' The federal statute provides that the 
 
 0* Sage V. Cent Ry. Co., 93 U. S. "« U. S. Rev. Stat. sec. 999, 4 Fed. 
 
 412-420 (23:933). Stat. Anno. 610; Butler v. Gage, 
 
 00 Board of Commissioners v. 138 U. S. 52-61 (34:869) ; Havnor 
 
 Gorman, 86 U. S. 661-665 (22: v. New York, 170 U. S. 408-411 
 
 226); Kitchen v. Randolph, 93 U. (42:1087); Bartemeyer v. Iowa, 14 
 
 S. 89 (23:810); Foster v. Kansas, Wall. 26-28 (20:792). 
 
 112 U. S. 204 (28:630), »7 Ante, sees. 422, 423. 
 
 24 
 
370 FEDERAL PROCEDURE AT LAW. § 451 
 
 defendant in error ' ' shall have at least thirty days notice, ' ' "^ 
 and one of the supreme court rules provides that "all appeals, 
 writs of error, and citations must be made returnable not ex- 
 ceeding thirty days from the day of signing the citation, 
 whether the return-day fall in vacation or in term time, ,and 
 must be served l)ef ore the return day.*" 
 
 The citation in error (as in appeal), may be served (1) upon 
 the defendant in error, or (2) upon his attorney or counsel of 
 record in the cause, with like effect as upon the party himself ; 
 and no attorney or counsel can withdraw his name ofter he 
 has once entered it upon the record, without the leave of the 
 court, and while his name continues there the opposite party 
 has a right to treat him as the authorized attorney and counsel, 
 and the service of the citation in error upon him is valid. The 
 citation may be waived by a general appearance, or by the ac- 
 ceptance of service of a defective citation, or by action equiva- 
 lent to an acknowledgement of notice; but the service or ac- 
 knowledgement or waiver can be made upon or by no one other 
 than the party himself or his attorney or counsel of record. 
 But if the counsel of record is dead, the citation cannot be 
 served upon his personal representativa, nor even upon his 
 partner, if that partner does not regularly appear on the re- 
 cord as counsel in the cause.^ 
 
 The necessity of the actual issue and actual service of cita- 
 tion, (both in writs of error and appeals, except in cases of 
 appeals allowed in open court, or in the absence of equivalent 
 notice or waiver), is reiterated in many cases, but much liber- 
 ality is exercised by permitting service to be made during the 
 return term, or allowing a new citation to be issued and served, 
 where the circumstances of the case call for an exercise of the 
 discretion of the appellate court.^ 
 
 98 U. S. Rev. Stat. sec. 999; 4 Blgler v. Waller, 12 Wall. 142 (20.: 
 Fed. Stat. Anno. 610. 260); Goodwin v. Fox, 120 TJ. S. 
 
 99 U. S. Supreme Court rule VIII 775 (30:815) ; Davis v. Waklee, 156 
 sec. 5. U. S. 680-692 (39:578). 
 
 1 Tripp V. Santa Rosa Street Ry. 2 Hewitt v. Filbert, 116 U. S. 142 
 
 Co., 144 U. S. 126-130 (36:371); (29:581); Dayton v. Lash, 94 TJ. 
 
 United States v. Curry, 6 How. S. 112 (24:33); Tripp v. Santa 
 
 106-114 (12:363) ; Bacon v. Hart, Rosa Street Ry. Co., 144 U. S. 126- 
 
 1 Black, 38 (17:52); Villabolas v. 130 (36:371). 
 United States, 6 How. 81 (12:352) ; 
 
§ 454 FEDERAL APPELLATE JUKISDICTION. 371 
 
 § 452. Mode of serving citation in error. — Neither the fed- 
 eral statute, nor any rule of court, prescribes any mode for 
 the serving of citation in error, the one declaring that the de- 
 fendant in error shall have "notice," ^ and the other providing 
 that the citation shall "be served."* The federal supreme 
 court has declared that, in the service of citation in error, it 
 cannot be governed by the varying laws of the several states 
 upon the subject, and that service by mail will not be recog- 
 nized. The court then declares that service of the citation in 
 accordance with the thirteenth equity rule which prescribes the 
 mode of serving a subpoena ad respondendum in chancery 
 would doubtless be sufficient, which rule is as follows: "The 
 service of all subpoenas shall be by delivery of a copy thereof 
 by the officer serving the same to the defendant personally, 
 or by leaving a copy thereof at the dwelling-house or usual 
 place of abode of each defendant, with some adult person who 
 is a member or resident in his family. " ° As shown in the 
 section next preceding, the citation may be served on the at- 
 torney or counsel of record. 
 
 § 453. Writ of error bond. — ^It is provided by statute that: 
 "Every justice or judge signing a citation on any writ of 
 error, shall, except in cases brought up by the United States, 
 or by direction of any department of the government, take 
 good and sufficient security that the plaintiff in error or the 
 appellant shall prosecute his writ or appeal to effect, and, if 
 lie fail to make his plea good, shall answer all damages and 
 •eostpi, where the writ is a supersedeas and stays execution, or 
 all costs only where it is not a supersedeas as aforesaid. ' ' ^ 
 
 § 454. The writ of error must be brought within two years. 
 A writ of error from the federal supreme court to review a 
 judgment or decree of a state court must be bought within two 
 years after the entry of the judgment; and the writ of error 
 is not brought, in the legal meaning of the term, until it is 
 filed in the court which rendered the judgment. It is the 
 filing of the writ in the inferior court that removes the record 
 
 3 TJ. S. Rev. Stat. sec. 999, 4 Fed. e u. S. Rev. Stat. sec. 1000, 4 Fed. 
 
 Stat. Anno. 610. Stat. Anno. 612. For correct form 
 
 * U. S. Supreme Court, rule VIII of writ of error bond, see 2 Bates 
 
 sec. 5. Fed. Eq. Proc. \j. 1273. 
 
 5 Tripp V. Santa Rosa Street Ry. 
 Co., 144 U. S. 126-120 (36:371). 
 
372 FEDERAL PEOCEDUEE AT LAW. § 455 
 
 therefrom to the appellate court, and the period of limitation 
 prescribed by the act of congress must be calculated accord- 
 ingly/ 
 
 § 455. Parties to writs of error. — ^It is a fundamental rule of 
 the common law, that no person can bring a writ of error to 
 reverse a judgment who is not a party or privy to the record.* 
 Writs of error to remove the judgments of inferior courts to 
 the federal supreme court are, under the federal judiciary act, 
 governed by the principles and usages of the common law, 
 and no one can bring up, as plaintiff in a writ of error, the 
 judgment of an inferior to a superior court, unless he was a 
 party or privy to the judgment below, nor can any one be 
 made a defendant in the writ of error, who was not a party or 
 privy to the judgment in the inferior court." 
 
 The rule is universal that when there is a joint judgment 
 against several defendants, and the joint interest of all is 
 affected by the judgment, all of the parties affected thereby 
 must join in the writ of error, or it will be quashed or dis- 
 missed, unless a severance of the parties has been effected by 
 a summons and severance, or by some equivalent action ap- 
 pearing upon the record.^" A written notice to a party against 
 
 7 U. S. Rev. Stat. sees. 1003, 1008. Guion v. Ins. Co., 109 U. S. 168 
 4 Fed. Stat. Anno. 616, 622; Cum- (27:895); Bull v. Meloney, 27 
 mlngs V. James, 104 U. S. 419 (26: Conn. 560; Ailing v. Shelton, 16 
 824); Scarborough v. Pargoud, Conn. 436; Coe v. Conn., 5 Conn. 
 108 U. S. 567-568 (27:824); Pol- 86; Arnett v. McCain, 47 Ark. 413. 
 leys V. Black River Improvement » Payne v. Niles, 20 How. 219- 
 Co., 113 U. S. 81-84 (28:938). 221 (15:895). 
 
 8 2 Tidd's Practice (1807) 1052- lo Simpson v. Greely, 20 Wall. 
 1055; Dougherty v. Compton, 3 152-158 (22:338); Hanrick v. Pat- 
 Smedes & Marshall (Miss.) 100; rick, 119 U. S. 156-176 (30:396); 
 Plournoy v. Smith, 3 How. (Miss.) Williams v. Bank, 11 Wheat. 414 
 62; Beazley V. Prentiss, 13 Smedes (6:508); Mussina v. Cavazos, 20 
 & Marshall (Miss.) 97; Gordon v. How. 280 (15:878); Hampton v. 
 Gibbs, 3 Smedes & Marshall Rouse, 13 Wall. 17 (20:593) ; Smith 
 (Miss.) 473; Mayer v. McLure. 7 v. Pevlne & Co., 12 How. 327 (13: 
 George (Miss.) 389; Smith v. Ger- 1008); Davenport v. Fletcher, 16 
 loch, 2 Texas, 424; Dupree v. How. 142 (14:879); O'Dowd v. 
 Perry, 18 Ala. 34; Watson v. May, Russell, 14 Wall. 402-405 (20:857) ; 
 8 Ala. 177; Bayard v. Lombard, 9 Feibleman v. Packard, 108 U. S. 
 How. 530 (13:245) ; Payne v. Niles, 14 (27:634) ; Harder v. Wilson, 146 
 20 How. 219 (15:895); Ex parte U. S. 179 (36:933); Estes v. 
 Cockcroft, 104 U. S. 578 (26:856) ; Traube, 128 U. S. 225-230 (32:437). 
 
§ 456 FEDERAL APPELLATE JURISDICTION. 373 
 
 •whom a joint judgment has been rendered, requesting him to 
 join in the writ of error, and his refusal to join, are, if appear- 
 ing from the record, the equivalent of a summons and sever- 
 ance, and will sustain the writ.^^ A defendant against whom 
 a separate, distinct personal judgment for money has been 
 rendered, and in which his co-defendants have no interest, has 
 a right to prosecute a writ of error in his own name without 
 joining them.^^ It is weU settled that the federal supreme 
 court cannot take jurisdiction of a writ of error which des- 
 scribes the parties by the name of a firm or in any other way 
 than by their individual names ; but where the record discloses 
 the names of the parties the writ may be amended." 
 
 § 456. The plaintiff in error must have a personal interest 
 in the federal question. — The party who brings a writ of error 
 to reverse a judgment or decree of a state court upon the 
 ground that the suit involves a federal question must show 
 that he has a personal interest in the litigation and in the de- 
 cision of the question. He must show that it was decided 
 against him in the state court. The federal right claimed must 
 be personal to the plaintiff in error, and he cannot maintain 
 the jurisdiction of the supreme court to review the judgment 
 upon the ground that the defendant in error asserted a federal 
 right in the state court and obtained a decision in his favor.^* 
 Neither will an official interest, where there is no real, sub- 
 
 "O'Dowd V. Russell, 14 "Wall. Little, 134 U. S. 645 (33:1063); 
 
 402-405 (20:857); Masterson v. Missouri v. Andriano, 138 U. S. 
 
 Herndon, 10 Wall. 418 (19:954); 497-501 (34:1012); Henderson v. 
 
 Simpson v. Greely, 20 Wall. 158 Tennessee, 10 How. 311 (3,3:434); 
 
 (22:339). McNulta v. Lochridge, 141 U. S. 
 
 12 Germain v. Mason, 12 Wall. 327-332 (35:796); Texas & Pacific 
 
 259-261 (20:392); Brewster v. Ry. Co. v. Johnson, 151 U S. 81- 
 
 Wakefleld, 22 How. 118 (16:301). 105 (38:81); Verden v. Coleman, 
 
 isEstes V. Traube, 128 U. S. 225- 1 Black, 472-474 (17:161) ; Nor- 
 
 230 (32:437). wich & W. R. Co. v. Johnson, 15 
 
 "Smith V. Indiana, 191 U. S. Wall. 8 (21:118); Brown v. Smart, 
 138-150 (48:125); Tyler v. Regis- 145 U. S. 454 (36:773); Phinney v. 
 tration Court Judges, 179 U. S. Sheppard & E. P. Hospital, 177 U. 
 405 (45:252); Clark v. Kansas S. 170 (44:720) ; Williams v. Egg- 
 City, 176 U. S. 114 (44:392) ; Tur- leston, 177 U. S. 308 (44:720); 
 pin V. Lemon, 187 U. S. 51 (47: Walworth v. Kneeland, 15 How. 
 70); Lampasas v. Bell, 180 U. S. 348 (14:724); Owings v. Norwood. 
 276 (45:527); Ludling v. Chaffe, 5 Cranch. 344 (3:120). 
 143 U. S. 301 (36:313); Giles v. 
 
374 FEDERAL PROCEDUEE AT LAW. § 458 
 
 stantial personal interest, sustain the jurisdiction of the appel- 
 late eourt.^^ 
 
 § 457. The plaintiff in error must bring his case within 
 the judiciary act. — ^A writ of error from the federal supreme 
 court to revise a judgment of a state court can be maintained 
 only when it is within the purview of section seven hundred 
 and nine of the United States revised statutes. That section 
 defines and limits the jurisdiction of the supreme court to re- 
 vise such judgments, and, to maintain the jurisdiction, the 
 record must present some one of the questions embraced in it, 
 and that question must be decisive of the case. If a question, 
 not federal, was also raised and decided in the state court, 
 and the decision of that question be found sufficient to sup- 
 port the judgment, the supreme court will not review it.^° 
 
 § 458. Same — Specific classification of federal questions 
 embraced within the statute. — There are fourteen classes of fed- 
 eral questions enumerated in the statute the existence of 
 either one of which will give the federal supreme court juris- 
 diction to review the final judgment or decree of a state court, 
 namely : 
 
 (1) Where is draAvn in question the validity of a treaty of 
 the United States, and the decision is against its validity. 
 
 (2) Where is drawn in question the validity of a statute 
 of the United States, and the decision is against its validity. 
 
 (3) Where is drawn in question the validity of an authority 
 exercised under the United States, and the decision is against 
 its validity. 
 
 (4) Where is drawn in question the validity of a state stat- 
 ute on the ground of its being repugnant to the constitution 
 of the United States, and the decision is in favor of its validity. 
 
 (5) Where is drawn in question the validity of a state stat- 
 ute on the ground of its being repugnant to a treaty of the 
 Uninted States, and the decision is in favor of its validity. 
 
 (6) Where is drawn in question the validity of a state stat- 
 ute on the ground of its being repugnant to a law of the 
 United States, and the decision is in favor of its validity. 
 
 (7) Where is drawn in question the validity of an authority 
 
 15 Smith V. Indiana, 191 U. S. First National Bank, 172 U. S. 
 138-150 (48:125). 425-434 (43:502). 
 
 1 Capital National Bank v. 
 
§ 459 FEDERAL APPELLATE JURISDICTION, 375 
 
 exercised under a state on the ground of its being repugnant 
 to the constitution of the United States, and the decision is ia 
 favor of its validity. 
 
 (8) Where is drawn ia question the validity of an authority 
 exercised under a state on the ground of its being repugnant 
 to a treaty of the United States, and the decision is in favor of 
 its validity. 
 
 (9) Where is drawn in question the validity of an authority 
 exercised under a state on the ground of its being repugnant 
 to a law of the United States, and the decision is in favor of 
 its validity. 
 
 (10) Where a title, right, privilege, or immunity, is specially 
 set up and claimed under the constitution of the United States, 
 and the decision is against the title, right, privilege, or im- 
 munity, so set up and elaimed. 
 
 (11) Where a title, right, privilege, or immunity is specially 
 set up and claimed under a treaty of the United States, and 
 the decision is against the title, right, privilege, or immunity, 
 so set up and claimed. 
 
 (12) Where a title, right, privilege, or immunity, is specially 
 set up and claimed under a statute of the United States, and 
 the decision is against the title, right, privilege, or immunity, 
 so set lip and claimed. 
 
 (13) Where a title, right, privilege, or immunity, is specially 
 set up and claimed under a commission held under the United 
 States, and the decision is against the title, right, privilege, 
 or immunity, so set up and claimed. 
 
 (14) Where a title, right, privilege, or immunity, is specially 
 set up and claimed under an authority exercised under the 
 United States, and the decision is against the title, right, privi- 
 lege, or immunity so set up and claimed.^' 
 
 (6) Appellate Jurisdiction Over the Inferior Federal 
 
 Courts. 
 
 § 459. Appellate jurisdiction of the supreme court over cir- 
 cuit and district courts. — The supreme court of the United 
 States is vested with power and jurisdiction to review, by writ 
 
 17 U. S. Rev. Stat. sec. 709, 4 Fed. Stat Anno. 467, 468, XJ. S. Comp. 
 Stat. 1901, p. 575. 
 
376 FEDERAL PROCEDUBE AT LAW. § 461 
 
 of error or appeal, according as the case may be one at law, 
 or in equity, or in admiralty, the final judgments and decrees 
 of the federal circuit and district courts in the following 
 classes of cases, namely: 
 
 (1) In any case in which the jurisdiction of the court is in 
 issue; in such cases the question of jurisdiction alone shall 
 be certified to the supreme court from the court below for its 
 decision. (2) From the final sentences and decrees in prize 
 causes. (3) In cases of conviction of a capital crime. (4) In 
 any case that involves the construction or application of the 
 constitution of the United States. (5). In any case in which 
 the constitutionality of any law of the United States, or the 
 validity or construction of any treaty made under its author- 
 ity, is drawn in question. (6) In any case in which the con- 
 stitution or law of a state is claimed to be in contravention 
 of the constitution of the United States.'^ (7) Appeals from 
 interlocutory decrees granting or continuing an injunction in 
 any suit under the interstate commerce aet.^" 
 
 § 460. Same — No pecuniary limit. — There is no pecuniary- 
 limit on the right of review of the judgments and decrees of 
 the circuit and district courts of the United States; but, in all 
 civil cases brought and tried in those courts, an appeal or writ 
 of error is given to review the judgment or decree, either to 
 the supreme court or to the circuit court of appeals, without 
 regard to the amount in controversy, one of the objects of the 
 judiciary act of March 3, 1891, being to. remove the pecuniary 
 limit upon the right of review by appeal or writ of error.^" 
 
 § 461. Same — Two years allowed in which to take appeals 
 and writs of error. — The final judgments and decrees of the 
 circuit and district courts, in the six classes of cases mentioned 
 in the fifth section of the judiciary act of March 3, 1891, and of 
 which the supreme court is given appellate jurisdiction, may 
 be carried to the supreme court on writ of error or appeal 
 within two years from the rendition thereof.^^ 
 
 18 26 U. S. Stat, at L. ch. 517, sec. 20 The Paquete Habana, 175 U. 
 
 5, p. 826; 29 U. S. Stat, at L. ch. 68 S. 677-721 (44:320). 
 p. 492. 21 U. S. Rev. Stat. sec. 1008, 4 
 
 1034 U. S. Stat, at L. ch. 3591, Fed. Stat. Anno. 622; Allen v. 
 sec. 15, p. 592. Southern Pac. R. Co., 173 U. S. 
 
 479-492 (43:775). 
 
:§ 463 PEDEBAIi APPELLATE JURISDICTION. 377 
 
 § 462. Same— Writs of error on behalf of the United States 
 in criminal cases where there has been no jeopardy or verdict 
 in favor of defendant. — A recent federal statute provides : 
 
 "That a writ of error may .be taken out by and on behalf 
 of the United States from the district or circuit courts -direct to 
 the supreme court of the United States in all criminal cases, 
 in the following instances, to-wit: From a decision or judg- 
 ment quashing, setting aside, or sustaining a demurrer to, any 
 indictment, or any count thereof, where such decision or judg- 
 ment is based upon the invalidity, or construction of the stat- 
 ■ute upon which the indictment is founded. From a decision 
 arresting a judgment of conviction for insufficiency of the 
 indictment, where such decision is based upon the invalidity 
 ■or construction of the statute upon which the indictment is 
 founded. From the decision or judgment sustaining a special 
 plea in bar, when the defendant has not been put in jeopardy. 
 The writ of error in all such cases shall be taken within thirty 
 ■ days after the decision or judgment has been rendered and 
 shall be diligently prosecuted and shall have precedence over 
 all other, cases. Pending the prosecution and determination 
 ■of the writ of error in the foregoing instances, the defendant 
 shall be admitted to bail on his own recognizance: Provided, 
 'That no writ of error shall be taken by or allowed the United 
 : States in any case when there has been a verdict in favor of 
 the defendant. " 2= 
 
 § 463. Appellate jurisdiction of the supreme court over the 
 drcuit courts of appeals. — "With the exception of five classes 
 •of cases enumerated in the sixth section of the judiciary act of 
 March 3, 1891, in which the judgments and decrees of the 
 United States circuit courts of appeals are made final, there 
 is in all cases decided by those courts a right of an appeal or 
 writ of error or review by the supreme court, when the matter 
 in controversy shall exceed one thousand dollars besides costs, 
 if sued out within one year after the entry of the judgment 
 or decree sought to be reviewed ; and even the excepted classes 
 of cases may be carried to the supreme court upon certiorari 
 'for its review and determination with the same power and 
 .authority in the case as if it had been carried by appeal or 
 writ of error to the supreme court. The classes of cases in 
 
 -22 34 U. S. Stat, at L. eh. 2564, p. 1246, Supp. 1907 Fed. Stat. Anno. 193. 
 
378 FEDERALf PEOCEDURE AT LAW. § 466 
 
 which the judgments and decrees of the circuit courts of ap- 
 peals are made final are: (1) In all cases in which the jurisdic- 
 tion is dependent entirely upon the opposite parties to the suit 
 or controversy being aliens and citizens of the United States, 
 or citizens flf different states; (2) in all cases arising under the 
 patent laws; (3) in all cases arising under the revenue laws; 
 (4) in all cases arising under the criminal laws; (5) in all ad- 
 miralty cases, except from final sentences and decrees in prize 
 causes. The circuit courts of appeals may at any time certify 
 to the supreme court any questions or propositions of law con- 
 cerning which it desires instruction of that court for its proper 
 decision.^^ 
 
 § 464. Appellate jurisdiction of the supreme court over the 
 court of claims. — An appeal is allowed to the supreme court, 
 on behalf of the United States, from all judgments of the court 
 of claiims adverse to the United States, regardless of the 
 amount involved, and on behalf of the plaintiff in any case 
 where the amount in controversy exceeds three thousand dol- 
 lars, or where his claim is forfeited to the United States by the 
 judgment of the court.^* 
 
 § 465. Same — Time and manner of taking. — All appeals 
 from the court of claims shall be taken within six months 
 after the judgment is rendered, and shall be allowed under 
 such regulations as the supreme court may direct.^'' 
 
 § 466. Appellate jurisdiction of the United States circuit 
 courts of appeals. — The United States circuit courts of appeals 
 have jurisdiction to review, upon writ of error, or appeal, the 
 final judgments and decrees of circuit and district courts (1) in 
 all civil cases other than the six classes of cases designated in 
 the fifth section of the judiciary act of March 3, 1^91, appellate 
 jurisdiction over which is vested in the supreme court; ^^ (2) in 
 all cases of a conviction of an infamous crime not capital," and 
 
 23 26 U. S. Stat, at L. ch. 517, United States v. Adams, 6 Wall. 101 
 sec. 6, p. 826. (18:792). 
 
 24 U. S. Rev. Stat. sec. 707, 4 Fed. 25 U. S. Rev. Stat. sec. 708, as 
 Stat. Anno. 467; 22 U. S. Stat, at amended by 24 U. S. Stat, at L. ch. 
 L. ch. 116, sec. 9, p. 485; Umted 359, sec. 10, p. 505, 4 Fed. Stat. 
 States V. Davis, 131 U. S. 36 (33: Anno. 467, 2 Fed. Stat. Anno. 86. 
 93); United States v. Gllliat, 164 26 26 U. S. Stat, at L. ch. 517, 
 U. S. 41 (41:344) ; De Groot v. Uni- sees. 5 and 6, p. 826. 
 
 ted States, 5 Wall. 419 (18:700); 27 29 U. S. Stat, at L. ch. 68 p 
 
 492. 
 
§ 466(1 FEDERAL APPELLATE JURISDICTION. 379 
 
 (8) over interlocutory decrees in equity granting or continuing 
 an injunction, or appointing a receiver in any cause.^* 
 
 § 466a. Same — Time allowed for taking writ of error or 
 appeal. — The writ of error or appeal from final judgments 
 and decrees must be taken or sued out within six months after 
 the entry thereof,^" and from interlocutory decrees within 
 thirty days from the entry of such decree.'" 
 
 28 34 U. S. Stat, at L. ch. 1627, so 34 U. S. Stat, at L. ch. 1627, p. 
 p. 116. 116. r 
 
 29 26 U. S. Stat, at L. ch. 517. sec. 
 11, p. 826. 
 
'CHAPTER XL 
 
 JURISRICTION OF THE FEDERAL JUDICIARY TO ISSUE WRITS 
 OF HABEAS CORPUS. 
 
 467. Jurisdiction of the federal 
 
 judiciary to grant writs 
 of habeas corpus. 
 
 468. What courts and judges 
 
 may issue writs of habeas 
 corpus. 
 
 469. Supreme court may issue 
 
 the writ in the exercise 
 of either original or ap- 
 pellate jurisdiction. 
 
 470. Nature and object of the 
 
 writ — Cannot perform 
 the office of a writ of er- 
 ror. 
 
 471. Classes of cases in which 
 
 the federal courts may is- 
 sue the writ of habeas 
 corpus. 
 
 472. Jurisdiction of the supreme 
 
 court to issue the writ 
 when the prisoner is held 
 under a void judgment of 
 a federal court. 
 
 473. Same — Writ may issue be- 
 
 fore a final judgment. 
 
 474. Same — Same — Inquiry into 
 
 the jurisdiction of infer- 
 ior courts may extend to 
 facts outside the record. 
 
 475. Jurisdiction to issue the 
 
 writ when prisoner is 
 held under void judgment 
 of court martial. 
 
 i 476. Jurisdiction to issue the 
 writ when prisoner is 
 held under void sentence 
 of military commission. 
 
 477. Same — Jurisdiction of su- 
 
 preme court to issue writ 
 when circuit court re- 
 mands prisoner. 
 
 478. Jurisdiction to issue the 
 
 writ when the prisoner 
 is in custody under state 
 authority in contraven- 
 tion of federal authority. 
 
 479. Same — Cases of urgency re- 
 
 quiring immediate action. 
 
 480. Same — Interstate extradi- 
 
 tion. 
 
 481. Same — Same — Concurrent 
 
 jurisdiction of state 
 courts. 
 
 482. Application for the writ of 
 
 habeas corpus. 
 
 483. The award and direction of 
 
 the writ. 
 484t Return of the writ. 
 
 485. Same — Production of the 
 
 body. 
 
 486. Day set for hearing— Plead- 
 
 ings. 
 
 487. Same — Summary hearing 
 
 and disposition of the 
 party. 
 
 § 467. Jurisdiction of the federal judiciary to grant writs 
 of habeas corpus. — The federal constitution declares that, "the 
 privilege of the writ of habeas corpus shall not be suspended, 
 unless when in cases of rebellion or invasion the public safety 
 
§ 469 JURISDICTION TO ISSUE WRITS OF HABEAS CORPUS. 381 
 
 may require it, " ^ and, acting under the immediate influence 
 of this declaration, the first congress, in order to give effect to 
 this great constitutional privilege, by the fourteenth section 
 of the original judiciary act, gave to all the courts of the 
 United States the power to issue writs of habeas corpus ; ^ and 
 it was early decided that this section of the act vested in the 
 supreme court jurisdiction to issue the writ, not merely as an 
 auxilliary writ in aid of the jurisdiction of the court over a 
 cause previously acquired, but as an indepeildent and original 
 proceeding, and in the exercise of an independent substantive 
 judicial power,* and this jurisdicti6n has been expanded by 
 subsequent legislation, and has long been employed as one of 
 the methods of maintaining the supremacy of the constitution, 
 laws and treaties of the United States,* and in the protection 
 of personal liberty against unlawful restraints, in so far as 
 that duty lies within the purview of the federal government.' 
 
 § 468. What courts and judges may issue writs of habeas 
 corpus.— The supreme court and the circuit and district courts 
 have power to issue writs 'of habeas corpus;' and the several 
 justices and judges of said courts, within their respective juris- 
 dctions, have power to grant writs of habeas corpus for the 
 purpose of enquiring into the cause of restraint of liberty.'' 
 But the United States circuit courts of appeals have no juris- 
 diction to issue writs of habeas corpus, as an independent and 
 original proceeding.* 
 
 § 469. Supreme court may issue the writ in the exercise of 
 either original or appellate jurisdicton. — The power of the su- 
 preme court to issue the writ of habeas corpus is a part of the 
 judicial power vested in it by the federal constitution, and 
 must be exercised within the limits of the grant, and the divid- 
 
 lU. S. Const, art. I, sec. 9, cl. 2. 142 (18:281); Ex parte Yerger, 8, 
 
 2 1 U. S. Stat, at L. ch. 20, sec. Wall. 85-106 (19:332); Ex parte 
 
 14, pp. 73-79. , Lange, 18 Wall. 162 (21:875). 
 
 3 Ex parte Bollman, 4 Cranch, » U. S. Rev. Stat. sec. 751, 3 Fed. 
 75-141 (2:554); Ex parte Watkins, Stat. Anno. 162, U. S. Gomp. Stat. 
 3 Pet. 193-207 (7:650). 1901, p. 592. 
 
 4 Whitten v. Tomllnson, 160 XJ. S. ' U. S. Rev. Stat. sec. 752, 3 Fed. 
 231-247 (40:406); CunningMm v. Stat. Anno. 167, U. S. Comp. Stat. 
 Neagle, 135 U. S. 1-99 (34:55); 1901, p. 592. 
 
 Thomas v. Loney, 134 U. S. 372 » Whitney v. Dick, 202 U. S. 132- 
 
 (33:949). 141 (50:963). 
 
 6 Ex parte Milligan, 4 Wall. 2- 
 
382 FEDERAL PKdCEDUKE AT LAW. § 470 
 
 ing line between original and appellate jurisdiction applies to 
 this subject as well as to all others ; and the supreme court may 
 issue the writ of habeas corpus in the exercise of either its 
 original or appellate jurisdiction, when a proper case is pre- 
 sented for either. Ordinarily it issues the writ in the exercise 
 of appellate jurisdiction, for the purpose of reviewing the ju- 
 dicial decision or action of some inferior court or 'officer, but 
 the court may issue it in the exercise of original jurisdiction 
 in a case where it has original jurisdiction and the circumstan- 
 ces require it. It is well settled that the appellate jurisdic- 
 tion may be exercised directly by habeas corpus where the writ 
 is an appropriate remedy.' 
 
 § 470. Nature and object of the writ — Cannot perform the 
 office of a writ of error. — Inasmuch as the federal constitution 
 is written in the language of the common law, and the writ 
 of habeas corpus is a great common-law writ, for centuries 
 esteemed by the English people as their best and only suffi- 
 cient defense of personal freedom, firmly guarantied by ttie 
 famous habeas corpus act of 31st Charles II, "for the better 
 securing of the liberty of the subject," brought to America by 
 the colonists and claimed by them as an immemorial right de- 
 scended to them from their ancestors, and confirmed unto 
 the people of the Union by constitutional guaranty without 
 definition as a known and existing right, the federal courts 
 have felt authorized to look to the common law for a definition 
 of the nature and object of the remedy given by the writ ; and, 
 as defined by the principles of the common law, the great ob- 
 ject of the writ was the speedy liberation of persons imprisoned 
 or restrained of their liberty without sufficient cause, and this 
 object was achieved by a judicial inquiry into the legality of 
 the commitment, and the discharge of the prisoner, if, upon 
 such inquiry, the cause of commitment was found to be insuffi- 
 cient. The writ proceeded, not by a mere correction of errors, 
 but by a direct attack upon the validity of the order of com- 
 mitment. The question brought forward and presented for 
 decision upon the writ of habeas corpus was always distinct 
 
 8 Ex parte Siebold, 100 U. S. 404- 332) ; Ex parte Bollman, 4 Cranch, 
 
 422 (25:717); Hung Hang, 108 U. 75 (2:554); Ex parte Watklns, 3 
 
 S. 552-553 (27:811); Ex parte Pet. 193 (7:650) ; Ex parte Wells, 
 
 Barry, 2 How. 65-66 (11:181); Ex 18 How. 307 (15:421). 
 parte Yerger, 8 Wall. 85-106 (19: 
 
§ 471 JURISDICTION TO ISSUE WRITS OF HABEAS CORPUS. 383 
 
 from the question involved in the ease itself; and the question 
 whether the individual should be imprisoned or discharged 
 V7as always distinct from the question whether he should be 
 convicted or acquitted of the charge upon which he was to be 
 tried, and those questions being distinct and separate might 
 be decided by different courts. The decision that the individ- 
 ual should be imprisoned always preceded the application for 
 the writ of habeas corpus, and the writ was sued out for the 
 purpose of revising the order of commitment, and, although 
 appellate in its nature, it was not for the purpose of correcting 
 errors upon a trial of the offense charged upon its merits. The 
 revision was directed at the order of commitment, to ascertain 
 whether it was based upon sufficient cause. ^^ This view of the 
 nature of a writ of habeas corpus was adopted by the federa,l 
 judiciary, and while it is well and definitely settled that the 
 supreme court of the United States may issue a writ of habeas 
 corpus, in the exercise of its appellate jurisdiction, for the 
 purpose of passing upon the validity of the order of commit- 
 ment, yet it is equally well settled that the writ cannot be 
 made to perform the office of a writ of error for the correction 
 of errors which may have occurred in the trial of the cause 
 in the court below, but is a direct attack upon the validity of 
 "the judgment complained of, upon the ground that, for want 
 •of jurisdiction, or because in excess of the power of the court 
 to render, it is null and void.^^ 
 
 § 471. Classes of cases in which the federal courts may issue 
 the writ of habeas corpus. — The jurisdiction of the courts of 
 the United States to issue writs of habeas corpus is limited to 
 five classes of cases, namely: (1) To cases of persons alleged 
 to be restrained of their liberty under or by color of the au- 
 
 10 Ex parte Watkins, 3 Pet. 193- 141 (50:963); Riggins v. United 
 209 (7:650); Ex parte Yerger, 8 States, 199 U. S. 547-551 (50:303); 
 Wall. 85-106 (19:332); Ex parte Dimmick v. Tompkins, 194 U. S. 
 Bollman, 4 Crancli, 75-137 (2:554). 540-552 (48:1110); Ex parte Roy- 
 
 11 Valentina V. Mercer, 201 TJ. S. al, 117 U. S. 241 (29:868); Ex 
 131-140 (50:693); Felts V. Murphy, parte Lange, 18 Wall. 163 (21: 
 201 U. S. 123-130 (50:689); Ex 872); Ex parte Nielsen, 131 U. S. 
 parte Lennon, 166 U. S. 548-557 176-191 (33:118); Ex parte Sie- 
 (41:1110); Re Eckart, 166 U. S. bold, 100 U. S. 371 (25:717); Re 
 481-485 (41:1085); Ex parte Bige- Snow, 120 U. S. 274 (30:658); Ex 
 low, 113 U S. 328-331 (28:1005); parte ParkSj 93 U. S. 18-24 (23: 
 Whitney v. Dick, 202 U. S. 132- 787). 
 
384 FEDERAL PEOCEDURE AT LAW. § 472; 
 
 thority of the United States, or are committed for trial before 
 some court thereof; (2) to cases of persons alleged to be re- 
 strained of their liberty for an act done or omitted in pursu- 
 ance of a law of the United States, or an order, process, or 
 decree of a court thereof; (3) to eases of persons alleged to be 
 restrained of their liberty in violation of the constitution, or of 
 a law or a treaty of the United States; (4) to cases of persons 
 alleged to be restrained of their liberty, being subjects or 
 citizens of a foreign state, and domiciled therein, for an act 
 done or omitted under any alleged right, title, authority, privi- 
 lege, protection or exemption claimed under the commission,, 
 or order, or sanction of any foreign state, or under color there- 
 of, the validity and effect whereof depend upon the law of na- 
 tions; and (5) where it is necessary to bring the prisoner into; 
 court to testify. In order to obtain the benefit of the writ, 
 and to procure its being issued by the court or justice or 
 judge who has the authority to order it to issue, it should 
 be made to appear upon the application for the writ, that such 
 application is founded upon some matter which justifies the' 
 exercise of federal authority, and which is necessary to the 
 enforcement of rights under the constitution or laws or treat- 
 ies of the United States, or under the laws of nations. ^^ 
 
 § 472. Jurisdiction of the supreme court to issue the writ 
 when the prisoner is held under a void judgment of a federal 
 court. — The power of the supreme court to issue a writ of 
 habeas corpus for the purpose of inquiring into the cause of 
 restraint of the person in whose behalf the writ is asked, is 
 expressly conferred by statute, and extends to the eases, among 
 others, of prisoners in jail under or by color of the authority 
 of the United States, and of persons who are in custody in 
 violation of the constitution and laws of the United States; 
 and, therefore, if a prisoner be imprisoned under a judgment 
 of a federal circuit or district court, which had no jurisdiction, 
 of the person or of the subject matter, or authority to render 
 the judgment complained of, the supreme court will, upon 
 complaint in writing, signed by, and verified by the oath of 
 
 12 U. S. Rev. Stat. sec. 753, 3 (34:500); Storti v. Massachusetts, 
 
 Fed. Stat. Anno. 167, U. S. Comp. 183 U. S. 138-144 (46:120); An- 
 
 Stat. 1901, p. 592; Carfer v. Cald- drews v. Swartz, 156 U. S. 272-276 
 
 well, 200 U. S. 293-297 (50:488); (39:422); Cunningham v. Neagle, 
 
 Ex parte Burrus, 136 U. S, 586-627 135 U. S. 1-99 (34:55). 
 
§ 473 JURISDICTION TO ISSUE WRITS OF HABEAS CORPUS. 385 
 
 the prisoner as required by the statute, showing the facts^ 
 direct the writ of habeas corpus to issue, accompanied by a writ 
 of certiorari to bring before the court a certified copy of the- 
 proceedings of the circuit or district court under which the 
 petitioner is restrained of his liberty, and upon return of the 
 writ and record will discharge the prisoner.^' 
 
 § 473. Same — Writ may issue before final judgment. — ^It is 
 not necessary that a final judgment should have been rendered 
 by the circuit or district court, in order to authorize the su- 
 preme court to issue its writ of habeas corpus to inquire into 
 the authority and jurisdiction of such inferior courts to re- 
 strain the prisoner of his liberty, but the writ may issue, upon 
 a proper application, where the applicant has been committed 
 for trial before such courts.^* The writ has been issued by the 
 supreme court to review a commitment under a warrant of 
 a district judge, ^^ and to review a commitment by the circuit 
 court of the District of Columbia,^® and to review a commit- 
 ment under an indictment and bench-warrant issued by a dis- 
 trict court and the return of the marshal, showing the arrest 
 of the prisoner and his detention in custody.^' In all such 
 eases, the supreme court has the authority under the constitu- 
 tion and laws of the United States to issue the writsi of habeas 
 corpus and certiorari, and to' examine the proceedings of the 
 inferior court to ascertain whether that court has exceeded its 
 authority, and to discharge the prisoner if found to be without 
 any lawful authority.^* 
 
 13 U. S. Rev. Stat. sec. 753, 3 667 (28:274); Ex parte Mayfield, 
 
 Fed. Stat. Anno. 167, U. S. Comp. 141 V. S. 107-116 (35:635). 
 
 Stat. 1901, p. 592; Ex parte Lange, i^U. S. Rev. Stat. 753, 3 Fed. 
 
 18 Wall. 163-205 (21:872); Ex Stat. Anno. 167, U. S. Comp. Stat, 
 
 parte Terry, 128 U. S. 289-314 (32: 1901, p. 592. 
 
 405); Ex parte Siebold, 100 U. S. i5 United States v. Hamilton, 3 
 
 37-399 (25:717); Ex parte Bur- Dall. 17. 
 
 ford, 3 Cranch, 448; Ex parte Boll- is Ex parte Burford, 3 Cranch, 
 
 man, 4 Cranch, 75 (2:554); Ex 448. 
 
 parte "Watklns, 3 Pet. 193 (7:650); "Ex parte Virginia, 100 U. S. 
 
 Ex parte Tyler, 149 U. S. 164-192 339-370 (25:676). 
 
 (37:689); Ex parte Virginia, 100 is Ex parte Lange, 18 Wall. 163. 
 
 U. S. 339-370 (25:677); United (21:872); Ex parte Virginia, 100' 
 
 States V. Hamilton, 3 Dall. 17; Ex U. S. 339-370 (25:672); Ex parte 
 
 parte Yarbrough, 110 U. S. 651- Mayfield, 141 U. S. 107-116 (35: 
 
 635). 
 
 35 
 
886 PEDEEAL PROCEDURE AT LAW. § 476 
 
 § 474. Same — Same — Inquiry into the jurisdiction of infer- 
 ior court may extend to facts outside the record. — Upon a writ 
 of habeas corpus issued by the supreme court upon the ground 
 that the prisoner is restrained of his liberty by an order or 
 judgment of an inferior court made in excess of its authority, 
 the supreme court has the power to inquire into the jurisdic- 
 tion of the inferior court, either in respect to the subject-mat- 
 ter or the person, or the power to enter the particular judg- 
 ment, even if such inquiry involves an examination of facts 
 outside of, but not inconsistent with the record sent up in 
 obedience to the writ of certiorari.^^ 
 
 § 475. Jurisdiction to issue the writ when prisoner is held 
 under void judgment of court martial. — A court-martial or- 
 ganized under the laws of the United States is a court of spec- 
 ial and limited jurisdiction, called into existence for a special 
 purpose and to perform a particular duty, and when the ob- 
 ject of its creation has been accomplished it is dissolved. It 
 is not a court of record, but is one of those inferior courts of 
 limited jurisdiction, whose judgments may be collaterally 
 questioned. To give effect to the sentences of a court-martial, 
 it must appear affirmatively and unequivocally that the court 
 was legally constituted, that it had jurisdiction of the party 
 and the subject-matter, that all the statutory regulations gov- 
 erning its proceedings have been complied with, and that its 
 judgment and sentence are conformable to law; and if the 
 court be illegally constituted, or it be without jurisdiction of 
 the parties or the subject-matter, or if its sentence and judg- 
 ment be in excess of the powers conferred upon it by stat- 
 ute, they are absolutely void, and the party restrained of his 
 liberty under such sentence and judgment may be discharged 
 upon writ of habeas corpus issued by the circuit or district 
 courts.^" It is not definitely settled that the supreme court 
 can issue the writ in such cases.^^ 
 
 § 476. Jurisdiction to issue the writ when prisoner is held 
 under void sentence of military commission. — A prisoner held 
 under the void sentence of a military commission, may be dis- 
 
 19 Ex parte Mayfleld, 141 U. S. 147-157 (34:636); Johnson v. 
 
 107-116 (35:635). Sayer, 158 U. S. 109 (39:914); Ex 
 
 20 McClaughry v. Deming, 186 U. parte Mason, 105 U. S. 696-701 
 
 S. 49-70 (46:1049); Ex parte (26:1213). 
 
 Reed, 100 U. S. 13-26 (25:538); 21 Ex parte Mason, 105 U. S. 696- 
 
 United States v. Grimly, 137 U. S. 701 (26:1213). 
 
§'478 JURISDICTION TO ISSUE WEITS OF HABEAS CORPUS. . 387 
 
 charged upon writ of habeas corpus issued by the circuit 
 court of the United States for the proper district ; ^^ but there 
 is no Original jurisdiction in the supreme court to issue a writ 
 of habeas corpus ad subjiciendum to reyiew or reverse the 
 proceedings of a military commission, nor to issue the writ of 
 certiora/ri to revise such proceedings.^^ 
 
 § 477. Same — Jurisdiction of supreme court to issue writ 
 when circuit court remajids prisoner. — In all cases where a cir- 
 cuit court of the United States has, in the exercise of its origi- 
 nal jurisdiction, caused a prisoner to be brought before it, and 
 has, after inquiring into the cause of detention, remanded him 
 to the custody from which he was taken, the supreme court, 
 in the exercise of its appellate jurisdiction, may, by writ of 
 habeas corpus, aided by the writ of certiorari, revise the deci- 
 sion of the circuit court, and if it be found unwarranted by 
 law, relieve the prisoner from the unlawful restraint to which 
 he has been remanded ; and, where a circuit court issued a writ 
 of habeas corpus for a prisoner, who was detained by a mili- 
 tary commission for trial upon a charge of murder, and upon 
 the return proceeded to hear argument and adjudged that the 
 imprisonment of the petitioner was lawful, and passed an order 
 tliat the writ of habeas corpus be dismissed, and that the pris- 
 oner be remanded to the custody of the military officer who 
 brought him into court, to be held and detained to answer the 
 charge of murder before the military commission, the supreme 
 court affirmed its jurisdiction to issue the writ of habeas cor- 
 pus to inquire into the cause of detention alleged to be unlaw- 
 ful, and to give relief if the detention should be found in fact 
 to Tje unlawful.^* 
 
 § 478. Jurisdiction to issue the writ when the petitioner is in 
 custody under state authority in contravention of federal au- 
 thority. — The circuit courts of the United States, and the 
 judges thereof, are vested with power, upon writ of habeas 
 corpus, to restore to liberty any person, within their respec- 
 tive jurisdictions, who is held in custody, by any authority 
 whatever, though it be the authority of a state, in violation of 
 the constitution or any law of the United States. But, while 
 the circuit court has the power and jurisdiction to discharge 
 
 22 Ex parte Milllgan, 4 Wall. 2- 24 Ex parte Yerger, 8 Wall. 85- 
 142 (18:281). 106 (19:332). 
 
 23 Ex parte Vallandingliam, 1 
 Wall. 243-254 (17:589). 
 
388 FEDERAL PROCEDURE AT LAW. § 478 
 
 a prisoner accused in a state court in advance of his trial, if he 
 be restrained in violation of the constitution or a law of the 
 United States, it has a legal discretion as to the time and mode 
 in which it will exercise the power conferred upon it in such 
 eases, which will be exercised in the light of the relations ex- 
 isting, under our dual system of government, between the ju- 
 dicial tribunals of the union and the states, and in recognition 
 of the fact that the public good requires that those relations 
 be not disturbed by unnecessary conflict between courts equally 
 bound to guard and protect rights secured by the constitution: 
 and where a person is in custody under process from a state 
 court of original jurisdiction, for an alleged offense against 
 the laws of such state, and it is claimed that he is restrained 
 of his liberty in violation of the constitution or a law of the 
 United States, the circuit court has a discretion to be subordi- 
 nated to any special circumstances requiring immediate ac- 
 tion, whether it will discharge him upon habeas corpus in ad- 
 vance of his trial in the court in which he is charged or in- 
 dicted; and when the state court shall have finally acted upon 
 his case, the circuit court has still a discretion whether, under 
 all the circumstances then existing, the accused, if convicted, 
 shall be put to his writ of error from the United States su- 
 preme court to the highest court of the state, or whether it 
 will proceed, by writ of habeas corpus, summarily to determine 
 whether the petitioner is restrained of his liberty in violation 
 of the constitution or a law of the United States ; and it seems 
 to be now definitely settled that one convicted in a state court 
 of an alleged violation of the criminal statutes of the state, 
 and who contends that he is held in violation of the constitu- 
 tion or a law of the United States, must, in the absence of spe- 
 cial circumstances requiring immediate action, first take his 
 case to the highest court of the state in which the judgment 
 could be reviewed, and thence bring it, if unsuccessful there, 
 by writ of error to the supreme court of the United States, and 
 only in certain exceptional cases will a circuit court of the United 
 States, or the supreme court upon appeal from a circuit court, 
 intervene by writ of habeas corpus in advance of the final ac- 
 tion of the highest court of the state. ^° 
 
 26 Ex parte Royal, 117, U. S. 241- 155 U. S. 89-99 (39:80) ; Ex parte 
 254 (29:868); New York v. Bno, Fonda, 117 U. S. 516 (29:94);. 
 
§ 480 JURISDICTION TO ISSUE WRITS OF HABEAS CORPUS. 389 
 
 § 479. Same — Cases of urgfency requiring immediate actioii. 
 
 When ^he petitioner is in custody by state authority for an 
 act done or omitted to be done in pursuance of a law of the 
 United States, or of an order, process, or decree of a court or 
 judge thereof; dr where, being a subject or citizen of a for- 
 eign state, and domiciled therein, he is in custody, under like 
 authority, for an act done or omitted under any alleged right, 
 title, authority, privilege, protection, or exemption claimed 
 under the commission, or order, or sanction of any foreign 
 state, or under color thereof, the validity and effect whereof 
 depends upon the law of nations ; in such and like eases of ur- 
 gency, involving the authority and operations of the general 
 government, or the obligations of this country to, or its rela- 
 tions with, foreign nations, the courts of the United States have 
 frequently interposed by writ of habeas corpus and discharged 
 prisoners who were held in custody under state authority.^" 
 
 § 480. Same — Interstate extradition. — ^An agent appointed 
 by the demanding state in which a fugitive from justice stands 
 charged with a crime, to receive such fugitive from the state 
 by which he is surrendered, is not an officer of the United 
 States within the meaning of the adjudications of the federal 
 Bupreme court, but is the agent of the demanding state, as well 
 in receiving custody of the fugitive, as in transporting him to 
 the state under whose commission he acts ; '^ and a warrant of 
 extradition of the governor of a state, issued upon the requisi- 
 tion of the governor of another state, accompanied by a duly 
 authenticated copy of an indictment, is prima facie evidence, 
 
 Duncan v. McCall, 139 U. S. 449 S. 1 (34:55); Thomas v. Lonly, 
 
 (35:219); Wood v. Brush, 140 U. 134 U. S. 372 (33:949); Mali v. 
 
 S. 278 (35:505); Jugiro v. Brush, Hudson County Jail Keeper (Mll- 
 
 140 U. S. 291 (35:510); Cook v. denhus Case) 120 U. S. 1 (30: 
 
 Hart, 146 U. S. 183 (36:934); Ex 565); Ex parte Royal, 117 U. S. 
 
 parte Frederich, 149 U. S. 70 (37: 245-254 (29:868); New York v. 
 
 653); Pepke v. Cronan, 155 U. S. Eno, 155 U. S. 89-95 (39:80); 
 
 100 (39:84); Bergmann v. Backer, Ohio v. Thomas, 173 U. S. 276-284 
 
 157 U. S. 655 (39:845); Whitten (43:699); Boske v. Comingore, 
 
 V. Tomlinson, 160 U. S. 231-247 177 U. S. 459 (44:846); Minnesota 
 
 (40:406); Minnesota v. Brundage, v. Brundage, 180 U. S. 499-505 
 
 180 U. S. 499-505 (45:639); Reid (45:639). 
 
 V. Jones, 187 U. S. 153-154 (47: zTRobb v. Connolly, 111 U. S. 
 
 116); Pettibone v. Nichols, 203 U. 624 (28:542); Roberts v. Reilly, 
 
 S. 192-221 (51:148). 116 U. S. 80-97 (29:544). 
 26 Cunningham v. Neagle, 135 U. 
 
390 FEDERAL PROCEDUEE AT LAW. § 480 
 
 at least, that the accused had been indicted and was a fugitive 
 from justice, and, when the court in which the indictment was 
 found has jurisdiction of the offense, is sufficient to make it 
 the duty of the court of the United States to decline interpo- 
 sition by writ of habeas corpus, and to leave the question of the 
 lawfulness of the detention of the prisoner in the state in 
 which he was indicted to be inquired into and determined, in 
 the first instance, by the courts of the state which are em- 
 powered and obliged, equally with the courts of the United 
 States, to recognize and uphold the supremacy of the constif 
 tution and laws of the United States.^^ Upon an application 
 for a warrant of extradition, two questions are, under the fed- 
 eral statute,^" presented to the governor upon whom the de- 
 mand is made, namely, (1) whether the person demanded has 
 been substantially charged with a crime against the laws of the 
 demanding state, and (2) whether he is a fugitive from jus- 
 tice, the first being a question of law. and the second a ques- 
 tion of fact which the governor upon whom the demand is 
 made must decide upon such evidence as is satisfactory to him. 
 In deciding the question of fact, strict common-law evidence is 
 not necessary. The federal statute does not prescribe the par- 
 ticular kind or quantity of evidence to be produced before the 
 governor, nor how it shall be authenticated, but it must be 
 such as is satisfactory to the mind of the governor. The per- 
 son demanded has no constitutional right to be heard before 
 governor on either the question of law or the question of fact, 
 and the federal statute gives no such right, and it is not error 
 for the governor to refuse such a hearing. The issuing of the 
 warrant of extradition by the governor, with or without a re- 
 cital therein that the person demanded is a fugitive from jus- 
 tice, is sufficient to justify his removal, until the presumption in 
 favor of the legality and regularity of the warrant is over- 
 thrown by contrary proof adduced in an appropriate legal 
 proceeding brought to review the action of the governor; and 
 after issuing the warrant, and before the deportation of the 
 
 28Whitteii V. Tomlinson, 160 U. U. S. 183 (36:934); Pearce v. Tex- 
 
 S. 231-247 (40:406); Robb v. Con- as, 155 U. S. 311 (39:164); Petti- 
 
 nolly, 111 U. S. 624 (28:542) ; Rob- bone v. Nichols, 203 U. S. 192-221 
 
 erts V. RelUy, 116 U. S. 80-97 (29: (51:148); Appleyard v. Massachu- 
 
 544); Ex parte Reggel, 114 U. S. setts, 203 U. S. 222-232 (51:161), 
 
 642 (29:250); Cook v. Hart, 146 20 u. S. Rev. Stat. sec. 5278. 
 
§ 481 JURISDICTION TO ISSUE WRITS OP HABEAS CORPUS. 391 
 
 person demanded, it is competent for a court, either state or 
 federal, sitting in the state where the warrant is issued and 
 the arrest is . made, to inquire, upon writ of habeas corpus, 
 whether the accused is in fact a fugitive from justice, and, if 
 found not to be, to discharge him from the custody of the 
 agent of the demanding state, and prevent his deportation.'" 
 "While the indictment, to authorize the issue of a warrant of 
 extradition, should set forth a substantial criminal charge, 
 yet its sufficiency as a matter of technical pleading, will not be 
 inquired into on a writ of habeas corpus. ^^ No obligation is 
 imposed by the constitution or laws of the United States upon 
 the agent of the demanding state, to so time the arrest of the 
 alleged fugitive from justice, and to so conduct his deporta- 
 tion from the surrendering state, as to afford him a conveni- 
 ent opportunity to test, before some competent judicial tri- 
 bunal sitting in that state, the question whether he is in fact 
 a fugitive from justice, and, as such, liable under the act of 
 congress to be conveyed to the demanding state.'^ 
 
 § 481. Same — Same — Concurrent jurisdiction of state courts. 
 The jurisdiction of the federal courts and the judges thereof, 
 to inquire, upon writ of habeas corpus, into the legality of the 
 detention of persons arrested and held upon warrants of ex- 
 tradition, and to discharge them, if it be ascertained that such 
 detention is illegal, is not an exclusive jurisdiction; but, in all 
 such eases, the state courts and the judges thereof are vested 
 with jurisdiction, concurrent with the federal courts and 
 judges. Upon the courts of the state, eqiially with the cpurts - 
 of the United States, rests the obligation to guard, enforce 
 and protect every right granted or secured by the constitution 
 of the United States and the laws made in pursuance thereof, 
 whenever any such rights are involved in any suit or proceed- 
 ing before them, and it is presumed that such courts will in 
 good faith perform their obligations, and if they fail therein 
 and withhold or deny any rights, privileges or immunities se- 
 
 3oMunsey v. Clough, 196 U. S. si Munsey v. Clough, 196 U. S. 
 3G4-375 (49:515); Hyatt v. New 364-375 (49:515); Ex parte Reg- 
 York, 188 U. S. 691 (47:657); gel, 114 XJ. S. 642 (29:250) ; Pearce 
 Robb V. Connolly, 111 U. S. 624- v. Texas, 155 U. S. 311 (39:164); 
 639 (28:542); Ex parte Reggel, Ex parte Hart, 59 Fed. R. 894. 
 114 U. S. 642 (29:250); Pettibone .'!2 Pettibone v. Nichols, 203 U. S. 
 V. Nichols, 203 U. S. 192-221 (51: 192-221 (51:148). 
 148). 
 
3^2 FEDEEAXi PROCEDURE AT LAW. § 484 
 
 cured by the constitution and laws of the United States, the 
 party aggrieved may carry his case, even though in a proceed- 
 ing for habeas corpus, from the highest court of the state in 
 which the question could be decided, to the supreme court of 
 the United States for final and conclusive determination.^" 
 
 § 482. Application for the writ of habeas corpus. — Applica- 
 tion for the writ of habeas corpus should be made to the court, 
 or justice, or judge authorized to issue the same, by com- 
 plaint in writing, signed by the person for whose relief it is 
 intended, setting forth the facts concerning the detention of 
 the party restrained, in whose custody he is detained, and by 
 virtue of what claim or authority, if known; and the aver- 
 ments of facts set forth ih the complaint must be verified by 
 the oath of the person making the application.'* The general 
 allegation in the complaint, that the petitioner is detained in 
 violation of the constitution and laws of the United States, 
 and is held without due process of law, are averments of mere 
 conclusions' of law and not matters of fact.*" 
 
 § 483. The award and direction of the writ. — The court or 
 justice or judge to whom the application is made shall forth- 
 with award the writ of habeas corpus, unless it appears from 
 the petition or application itself that the party is not entitled 
 thereto; and the writ shall be directed to the person in whose 
 custody the party is detained.'" The writ ought not to be 
 awarded, if the court is satisfied from the application that the 
 prisoner, if brought into court and the cause of his commit^ 
 ment inquired into, would be remanded to prison.'^ 
 
 § 484. Return of the writ — Time and form. — Any person to 
 whom the writ of habeas corpus is directed shall make due re- 
 turn thereof within three days thereafter, unless the party be 
 
 33Robb V. Connolly, 111 TJ. S. 407); Andersen v. Treat, 172 U. S. 
 
 624-640 (28:542); Munsey v. 24-31 (43:3*51). 
 
 Clough, 196 U. S. 364-375 (49: ae u. S. Rev. Stat. sec. 755, 3 
 
 515); Hyatt v. New York, 188 U. Fed. Stat. Anno. 173, U. S. Comp. 
 
 S. 691-719 (47:657). Stat. 1901, p. 593. 
 
 3i V. S. Rev. Stat. sec. 754, 3 s' Ex parte Watklns, 3 Pet. 193 
 
 Fed. Stat. Anno. 172, U. S. Comp. (7:650); Ex parte Terry, 128 U. 
 
 Stat. 1901, p. 593 ; Ex parte Cuddy, S. 289-314 (32:405); Ex parte 
 
 131 U. S. 280-287 (33:154). Kearney, 7 Wheat. 38-45 (5:391); 
 
 35 Whitten v. Tomlinson, 160 U. Ex parte MllUgan, 4 Wall. 2-11 
 
 S. 231-274 (40:406); Cramer v. (18:281). 
 Washington, 168 U. S. 124-131 (42: 
 
§ 487 JURISDICTION TO ISSUE WRITS OF HABEAS CORPUS. 393 
 
 detained beyond the distance of twenty miles; and if beyond 
 that distance and not beyond a distance of a hundred miles, 
 within ten daj's ; and if beyond the distance of a hundred miles, 
 within twenty days. The person to whom the writ is directed 
 shall certify to the court, or justice, or judge before whom it 
 is returnable the true cause of the detention of the party.'* 
 
 § 485. Same — Production of the body. — The person making 
 the return to the writ of habeas corpus shall at the same time 
 bring the body of the party before the judge who granted the 
 writ.^° 
 
 § 486. Day set for hearing — Pleadings. — When the writ is 
 returned, a day shall be set for the hearing of the cause, not 
 exceeding five days thereafter, unless the party- petitioning re- 
 quests a longer time. The petitioner or party imprisoned or 
 restrained may deny any of the facts set forth in the return, 
 or maj' allege any other facts that may be material in the case. 
 Said denials or allegations shall be under oath. The return 
 and all suggestions made against it may be amended, by leave 
 of the court, or justice, or judge, before or after the same are 
 filed, so that thereby the material facts may be ascertained.*' 
 
 § 487. Same — Summary hearing and disposition of the 
 party. — The court, or justice, or judge shall proceed in a sum- 
 mary way to determine the facts of the case, by hearing the 
 testimony and arguments, and thereupon to dispose of the 
 party as law and justice require.*^ But when the petitioner 
 is in custody under state authority, and claims that he is re- 
 strained of his liberty in violation of the constitution or a law 
 of the United States, the courts, judges and justices of the- 
 United States have a discretion as to the time and' mode of 
 granting' the petitioner relief upon writ of habeas corpus.*^ 
 
 38 tJ. S. Rev. Stat. sec. 756, 757, " U. S. Rev. Stat. sec. 761, 3 
 3 Fed. Stat. Anno. 173, U. S. Comp. Fed. Stat. Anno. 174, U. S. Comp. 
 Stat. 1901, p. 593; Ex parte Baez, Stat. 1901, p. 594; Motherwell v. ■ 
 177 U. S. 378-390 (44:813). United States, 107 Fed. 437; 
 
 39 U. S. Rev. Stat. sec. 758, 3 Cunningham v. Neagle, 135 U. S. 
 Fed. Stat. Anno. 174, U. S. Comp. 1-99 (34:55); Storti v. Massachu- 
 ;Stat. 1901, p. 593. setts, 183 U. S. 138-144 (46:120). 
 
 *o U. S. Rev. Stat. sees. 759, 760, ^2 Ante, sec. 478. 
 
 3 Fed. Stat. Anno. 174, U. S. Comp. 
 ,Stat. 1901,, i). 594. 
 
CHAPTER XII. 
 
 TITE JURISDICTION OP THE SUPREME COURT TO ISSUE WRITS: 
 OP PROHIBITION, MANDAMUS AND CERTIORARI. 
 
 (o) The Wkit of Prohibition. 
 
 488. Writ of prohibition de- 
 
 fined. 
 
 489. The writ is preventive — 
 
 Will not lie after the 
 cause is ended. 
 
 490. Jurisdiction of the supreme 
 
 court of the United States 
 to issue the writ of pro- 
 hibition. 
 
 491. When the writ will be 
 
 granted. 
 
 492. The want of jurisdiction 
 
 must appear from the 
 record. 
 
 493. The writ of prohibition not 
 
 of great importance in 
 the federal judicial sys- 
 tem. 
 
 (6) The Wsit of Mandamus. 
 
 494. The writ of mandamus de- 
 
 fined by the common law. 
 
 495. Jurisdiction of the supreme 
 
 court to issue the writ of 
 mandamus regulated by 
 statute. 
 
 496. Same — Power of supreme 
 
 court to issue writ in ex- 
 ercise of original juris- 
 diction limited by the 
 constitution. 
 
 497. Writ of mandamus issuedi 
 
 by the the supreme court 
 chiefly in aid of its ap- 
 pellate jurisdiction. 
 
 498. When the writ of manda- 
 
 mus will issue to inferior 
 courts of the United 
 States. 
 
 499. Writ cannot issue in cases 
 
 when the supreme court 
 has neither original nor 
 appellate jurisdiction. 
 
 500. Writ cannot be used as a 
 
 writ of error or appeal. 
 
 501. The writ cannot be issued' 
 
 to state courts. 
 
 (c) The Writ of Certiorari. 
 
 502. Jurisdiction to issue the 
 
 writ under the original 
 judiciary act. 
 
 503. Same — Court cannot issue; 
 
 the writ when it has no 
 jurisdiction over the case. 
 
 504. Same — Writ cannot issue to 
 
 review proceedings of 
 military tribunal. 
 
 505. Jurisdiction to issue the 
 
 writ under the judiciary- 
 act of March 3, 1891. 
 
 (a) The Writ of Prohibition. 
 
 § 488. Writ of prohibition defined. — A writ of prohibition 
 is a common-law writ issuing out of a superior court, directed 
 to a court of peculiar, limited or inferior jurisdiction inhibit- 
 ing it from assuming jurisdiction of a matter beyond its legal 
 
§ 490 JURISDICTION TO ISSUE WRITS OF PROHIBITION, ETC. 395 
 
 cognizance, or exceeding its jurisdiction in matters of wliieli 
 it has cognizance. The writ lies only to restrain the unlawful 
 exercise of judicial functions, and acts of a mere ministerial, 
 administrative or executive character are not within the 
 purview of the remedy afforded by it. When the suit com- 
 plained of is brought by a private person, he may be joined 
 as a defendant in the writ, but when the suit or prosecution 
 is by or on behalf of the government the writ can go to the 
 court only. The direction of the writ to the parties to the suit 
 is merely incidental to the prohibition laid upon the court.^ 
 
 § 489. The writ is preventive — Will not lie after the cause is 
 ended. — A writ of prohibition will never be issued unless it 
 clearly appears that the inferior court is about to exceed its 
 jurisdiction. It cannot be made to serve the purpose of a writ 
 of error or certiorari to correct the mistakes of that court in 
 deciding any question of law or fact within its jurisdiction. 
 The writ cannot be used except to prevent the doing of some- 
 thing about to be done; it will never be issued to correct acts- 
 already completed. It commands the court to which it is di- 
 rected not to do something which it is about to do, and will not. 
 issue after the cause is ended.^ 
 
 § 490. Jurisdiction of the supreme court of the United States 
 to issue the writ of prohibition. — The jurisdiction of the courts, 
 of the United States is special and limited, and derived alone 
 from the constitution and laws of the United States; and under 
 the present judicial arrangement, the supreme court can is- 
 sue the writ of prohibition to the district courts only, and to 
 them only in cases of admiralty and maritime jurisdiction.' 
 
 13 Bl. Com. 112; Smith v. WMt- 373); Ex parte Cooper, 143 U. S. 
 
 ney, 116 U. S. 167-186 (29:601); 472-513 (36:232). 
 
 Ex parte Brandlocht, 2 Hill, 367; 2 Smith v. Whitney, 116 U. S.. 
 
 Thompson v. Tracy, 60 N. Y. 31; 167-186 (29:601); Ex parte Gor- 
 
 Connecticut River Railroad v. don, 104 U. S. 515 (26:814); Ex 
 
 Franklin County Com'rs, 127 parte Detroit River Ferry Co., 104 
 
 Mass. 50; State v. Gray, 33 Wis. U. S. 519 (26:815); Ex parte 
 
 93; Homes Ins. Co. v. Flint, 13 Hager, 104 U. S. 520 (26:816); Ex 
 
 Minn. 244; Ex parte Williams, 4 parte Pennsylvania, 10'9 TJ. S. 174 
 
 Ark. 537, S. C. 38 Am. Dec. 46; (27:894); United States v. HofE- 
 
 Claytin V. Heidleberg, 9, Smedes & man, 4 Wall. 158 (18:354); Ex 
 
 M. (Miss.) 623; Washburn v. parte Easton, 95 U. S. 68 (24:373). 
 
 Phillips, 2 Met (Mass.) 296; Ex 3 u. S. Rev. Stat. sec. 088, U. S. 
 
 parte Easton, 95 U. S. 68-78 (24: Comp. Stat 1901, p. 565, 4 Fed. 
 
396 FEDERAL PKOCEDURE AT LAW. § '1493 
 
 Several applications have been made for w^rits of prohibition 
 to circuit courts, but there is no instance in which the writ 
 ever issued to a circuit court.* 
 
 § 491. When the writ will be granted. — When it appears 
 that the court whose action is sought to be prohibited has 
 clearly no jurisdiction of the case originally, or of some col- 
 lateral matter arising therein, a party who has objected to the 
 jurisdiction at the outset and has no other remedy is entitled 
 to a writ of prohibition as a matter of right, in those cases in 
 which the law authorizes its issuance; but where there is an- 
 other legal remedy by appeal or otherwise, or where the ques- 
 tion of the jurisdiction of the court is doubtful, or depends 
 upon facts which are not made matter of record, or where the 
 application is made by a stranger, the granting or refusal of 
 the writ is discretionary-. Nor is the granting of the writ 
 obligatory when the case has gone to sentence, and the want of 
 jurisdiction does not appear upon the face of the proceedings.^ 
 
 § 492. The want of jurisdiction must appear from the re- 
 cord.— In an application for a writ of prohibition, whether the 
 district court has exceeded its jurisdiction or not must be de- 
 termined upon the facts stated in the record upon which the 
 court is called to act, and by which alone it can regulate its 
 judgment, and not upon facts dehors the record set up in the 
 application for the writ." 
 
 § 493. The writ of prohibition not of great importance in 
 the federal judicial system. — Inasmuch as the federal judiciary 
 act of March 3, 1891, gives a remedy by writ of error or ap- 
 peal in all cases decided by the circuit and district courts of 
 the United States, and that without regard to the sum or value 
 in controversy, the writ of prohibition is no longer of any great 
 importance in the federal judicial system. In every case when 
 
 Stat. Anno. 439; Ex parte Christy, = Re Rice, 155 TJ. S. 396-403 
 
 ^ How. 292 (11:603); Ex parte (39:198); Smith v. Whitney, 116 
 
 Gordon, 1 Black, 503-506 (17: U. S. 167 (29:601); Ex parte 
 
 134); Ex parte Graham, 10 Wall. Cooper, 143 U. S. 472 (36:232); Re 
 
 541-543 (19:981). Huguley Mfg. Co., 184 U. S. 297- 
 
 *Ex parte Warmouth, 17 Wall. 302 (46:549). 
 
 «4 (21:543); Re Baiz, 135 V. S. "Ex parte Easton, 95 U. S. 68 
 
 404 (34:222); Smith v. Whitney, (24:373). 
 116 U. S. 172 (29:602); Re Rice, 
 155 U. S. 396 (39:198). 
 
§ 495 JURISDICTION TO ISSUE WRITS OP PROHIBITION, ETC. 397 
 
 the jurisdiction of the district or circuit court is in issuQ, the 
 ease may go directly to the supreme court.' 
 
 (&) The Writ of Mandamus. 
 
 § 494. The writ of mandamus defined. — By the common 
 law. — "The writ of mandamus is a prerogative' writ, contain- 
 ing a command in the king's name, and issuing from the court 
 of king's bench, directed to persons, corporations, or inferior 
 courts of judicature within the king's dominions, requiring 
 ^hem to do a certain specific act, as being the duty of their 
 office, character or situation, agreeably to right and justice. 
 This writ affords a proper remedy, in cases where the party 
 has not any other means of compelling a specific performance. 
 The object of the writ is not to supersede legal remedies, but 
 only to supply the defect of them. The only proper ground of 
 the writ is a defect of justice. It is, however, a prerogative 
 writ, and .not a writ of right, and it is the absence or want 
 of a specific legal remedy, which gives the court jurisdiction. 
 There must be a specific legal right, as well as the want of a 
 specific legal remedy, in order to found an application for a 
 mandamus. It is no objection, however, to the granting a 
 mandamus to do a particular act, that an indictment will also 
 lie for the omission to do the act. The power to issue the writ 
 belongs exclusively to the court of king's bench, and is con- 
 sidered as one of the flowers of that court; but this power 
 ought to be exercised with great caution, as a writ of error 
 does not lie on this proceeding. A mandamus lies either to 
 restore a person wrongfully ousted or to admit a person wrong- 
 fully refused."* 
 
 § 495. Jurisdiction of supreme court to issue the writ of 
 mandamus regulated by statute. — ^By the thirteenth section of 
 the original judiciary act it was provided that the supreme 
 court shall have power to issue "writs of mandamus in cases 
 
 7 26 U. S. Stat, at L. ch. 517, «2 Selwyn's Nisi Prlus (1831) 
 sees, 5, 6, 7, p. 826; 2 Bates, Fed. 261-262; Bradley v. McCrabb, Dal- 
 Eq. Proc. sees. 793, 796, 797, 798, lam (Texas), 504; Kendall v. 
 806; Re Huguley Mfg. Co., 184 U. United States, 12 Pet. 524-653 (9: 
 S. 297 (46:594); Ex parte New 1181) ; Ex parte Crane, 5 Pet. ISO- 
 York & P. R. S. Co., 155 U. S. 523 223 (8:92). 
 (39:246). 
 
■398 FEDERAL PEOCEDUEE AT LAW. § 497 
 
 warranted by the principles and usages of law, to any courts 
 appointed, or persons holding office, under the authority of 
 the United States,'" and in the revision the following words 
 are added, namely: "Where a state, or an ambassador, or 
 other public minister or consul or vice-consul is a party. " ^° 
 
 § 496. Same — Power of supreme court to issue writ in exer- 
 cise of original jurisdiction limited by the constitution. — The 
 jurisdiction of the supreme court, both original and appellate, 
 is defined in the constitution, and the dividing line between 
 the two kinds of jurisdiction is clearly and unmistakably 
 fixed and established," and it is not within the competency of 
 congress to vest in that court the power to issue the writ of 
 mandamus as an original proceeding except in those classes of 
 ■eases particularly specified in the constitutional provision as 
 falling within its original jurisdiction; and, therefore, it was 
 accordingly held that the thirteenth section of the original 
 judiciary act was ineflectual to vest in the supreme court 
 power and jurisdiction to issue a writ of mandamus to the secre- 
 tary of state of the United States to compel him to deliver 
 to certain " persons, named as applicants for the writ, their 
 commissions as justices of the peace in the District of Colum- 
 bia, they having been appointed to such offices by the Presi- 
 dent." 
 
 § 497. Writ of mandamus issued by the supreme court 
 chiefly in aid of its appellate jurisdiction. — Ever since the de- 
 dision of the case '^ cited in the section next preceding, it has 
 been a settled and fundamental rule of federal jurisprudence, 
 that, except in the classes of cases over which the supreme 
 court is by the constitution given original jurisdiction, that 
 court can issue the writ of mandamus only in the exercise of 
 or in aid of its appellate jurisdiction. The word "appellate" 
 used in the constitution to define the jurisdiction of the su- 
 preme court was not employed in a restricted sense, but in the 
 broadest sense, embracing appeals, writs of error, prohibition, 
 certiorari and mandamus, as proper proceedings to be used for 
 
 » 1 U. S. Stat, at L. ch. 20, sec. " U. S. Const, art. III. sec. 3, 
 
 13, pp. 73-79. cl. 2. 
 
 10 IT. S. Rev. Stat. sec. 688, 4 12 Marbury v. Madison, 1 Cranch, 
 
 Fed. Stat. Anno. 439, U. S. Comp. 137-180 (2:60). 
 Stat. 1901, p. 565. is Marbury v. Madison, 1 Cranch, 
 
 137-180 (2:60). 
 
■§ 498 JURISDICTION TO ISSUE WRITS OF PROHIBITION, ETC. 399 
 
 "the purpose of supervising the inferior courts of the United 
 States. At the time of the adoption of the federal constitu- 
 tion, the writ of mandamus was one of the principle methods 
 used by the court of king's bench for the purpose of exercis- 
 ing its supervisory power over the inferior courts, and was 
 adopted by the original judiciary act as one of the modes for 
 the exercise of the appellate jurisdiction of the supreme court, 
 the thirteenth section of the act expressly empowering that 
 •court to issue "writs of mandamus, in cases, warranted by the 
 usages and principles of law, to any courts appointed * * * 
 under the authority of the United States, ' ' and it appears by 
 .a long and unbroken line of decisions that the only practical 
 use of the writ of mandamus by the United States supreme 
 ^court is in the exercise of its appellate jurisdiction and super- 
 visory power over the inferior courts of the United States.^* 
 
 § 498. When the writ of mandamus will issue to inferior^ 
 ■courts of the United States. — The only office of the writ of 
 ■mandamus, when issued from a superior to an inferior court, 
 is to direct the performance of a ministerial act, or to command 
 "the court to act in a case or matter where it has jurisdiction 
 and refuses to act. The supreme court has the power to issue 
 the writ to inferior courts of the United States only "in cases 
 warranted by the principles and usages of law, ' ' ^' and the 
 rule is that those principles and usages warrant the issue of 
 the writ when the inferior court, having jurisdiction of a case, 
 refuses to hear and decide' the controversy, or, having heard 
 the case, refuses to render or enter a judgment or decree 
 
 11 Virginia v. Rives, 100 U. S. 228 (37:432); Re City Nat. Bank, 
 
 ■313-338 (205:667); Re Green, 141 153 U. S. 246 (38:705); Ex parte 
 
 tr. S. 325 (35:765); Ex parte Schallenberger, 96 U. S. 369 (24: 
 
 'Crane, 5 Pet. 200 (8:96); Ex parte 853); Ex parte Sawyer, 21 Wall. 
 
 Newman, 14 Wall. 165 (200:879) ; 235 (22:617) ; Ex parte Burtis, 103 
 
 Hudson V. Parker, 156 V. S. 277 U. S. 238 (26:392); United States 
 
 (39:424); Ex parte Connaway, 178 v. Lawrence, 3 Dall. 42 (1:502); 
 
 V. S. 421 (44:1134); Re Grossmay- United States v. Peters, 5 Cranch, 
 
 er, 177 U. S. 48 (44:665); Re 115 (3:53); Kendall v. United 
 
 Potts, 166 U. S. 263 (41:994); Re States, 12 Pet. 524 (9:1181); De- 
 
 Parker, 131 U. S. 221 (33:123) 
 Re Parker, 120 U. S. 737 (30:818) 
 Be Hohorst, 150 U. S. 653 (37 
 
 oatur V. Paulding, 14 Pet. 497 (10: 
 559) ; United States v. Addison, 22 
 How. 174 (16:304). 
 
 1211) ; Re Chateaugay Ore & Iron " U. S. Rev. Stat. sec. 688, U. S. 
 
 Co.'s Petition, 128 U. S. 544 (32: Comp. Stat. 1901, p. 565, 4 Fed. 
 508) ; Gaines v. Caldwell, 148 U. S. Stat. Anno. 439. 
 
400 FEDERAL PROCEDUBE AT LAW. § 501 
 
 therein, or refuses to act on some matter connected with the 
 case where such action is necessary to give effect to its judg- 
 ment or is necessary for the submission of the case to the ap- 
 pellate court for review, or refuses to execute the mandate of 
 the appellate court; but the principles and usages of law do not 
 warrant the use of the writ of mandamus to review, revise or 
 re-examine the judgment or decree of the inferior court, nor 
 to prescribe what its decision shall be or direct what judgment 
 or decree it shall enter in any pending case, nor to control the 
 judgment or discretion of the court in disposing of the case, 
 nor will the writ be issued in any case if the party aggrieved 
 has a remedy by writ of error or appeal. The writ operates, 
 in aid of the appellate jurisdiction of the supreme court, by 
 directing the inferior court to proceed, according to its own 
 judgment, to a final determination, so that its judgment may 
 be reviewed on writ of error or appeal.^" 
 
 § 499. Writ cannot issue in cases where the supreme court 
 has neither original nor appellate jurisdiction. — The supreme 
 court has no power to award a writ of mandamus in cases over 
 which it possseses neither original nor appellate jurisdiction.^' 
 
 § 500. Writ cannot be used as a writ of error or appeal. — A 
 writ of mandamus cannot be issued by the supreme court to 
 perform the office of an appeal or writ of error, to review the: 
 judicial action of an inferior court of the United States; and, 
 therefore, does not lie to review a final judgment or decree of 
 the circuit court, sustaining a plea to the jurisdiction, even 
 if no appeal or writ of error is given by law.^' 
 
 § 501. The writ cannot be issued to state courts. — The spe- 
 cial authority given by the federal statute to the supreme court 
 of the United States to issue writs of mandamus to the inferior 
 federal courts has always been held to exclude the authority 
 
 10 Ex parte Newman, 14 Wall. Whiteley, 4 Wall. 522 (18:335); 
 152 (20:877); Life & Fire Ins. Co. Life & Fire Ins. Co. v. Adams, 9 
 V. Wilson, 8 Pet. 291 (8:949); Pet. 602 (9:244). 
 United States v. Russell, 13 Wall. " Ex parte Gertrude Glaser, 198 
 623 (20:474); United States v. U. S. 171-173 (49:1000); Re Mas- 
 Peters, 5 Cranch, 135 (3:58); Ex sachusetts, 197 U. S. 482 (49:845). 
 parte Bradstreet, 7 Pet. 648 (8: is American Construction Co. v. 
 815) : Ex parte Many, 14 How. Jacksonville, Tampa & Key West 
 24 (14:311); United States v. Ry. Co., 148 U. S. 372-378 (37: 
 Lawrence, 3 Ball. 42 (1:502); 486). 
 Commissioners of Patents v. 
 
§ 504 JURISDICTION TO ISSUE WRITS OF PROHIBITION, ETC. 401 
 
 to issue those Merits to state courts and state officers, except, 
 where they are issued as process in the execution of judgments; 
 and writ of error, and not mandamus, is the proper remedy to. 
 correct the action of the supreme court of a state in failing to. 
 give full effect to a mandate from the supreme court of the 
 United States by mistaking or misconstruing its judgment.^*" 
 
 '(c) The Writ of Certioraki. 
 
 § 502. Jurisdiction to issue the writ under the original judi- 
 ciary act. — ^Under the fourteenth section of the original judi- 
 ciary act, preserved as section seven hundred and sixteen of 
 the revised statutes, which gave to all the courts of the United 
 States power to issue all "writs not specially provided for by 
 statute, which may be necessary for the exercise of their res- 
 pective jurisdictions, and agreeable to the principles and 
 usages of law," the supreme court has power to issue the writ 
 of c&i-tiorari either (1) as an auxiliary process only, to supply 
 imperfections in the record of a case already before it, and 
 not as a writ of error to review the judgment of an inferior 
 court,-" or (2) as an original and independent writ, whenever 
 the circumstances imperatively demand it, as at common law, 
 to correct excesses of jurisdiction, and in furtherance of jus- 
 tice, as in the case of judgments in contempt proceedings in 
 excess of the jurisdiction of the lower court, and which are not 
 reviewable on appeal or writ of error, but may be reached by 
 certiwari in the absence of any other adequate remedy.^^ 
 
 § 503. Same — Court cannot issue the writ when it has no 
 jurisdiction over the case. — In cases over which the supreme 
 court possesses neither original nor appellate jurisdiction, it 
 cannot issue the writ of certiorari, either as an ancillary or 
 original process.^^ 
 
 § 504. Same — Writ cannot issue to review proceedings of 
 military tribunal. — The supreme court has no power under the 
 above mentioned legislation to review, by writ of certiorari,. 
 
 ID Re Blake, 175 U. S. 114-120 21 Ex parte Chetwood, 165 U. S. 
 
 (44:94). 443-462 (41:782); Whitney v. 
 
 20 American Construction Co. v. Dicli, 202 U. S. 132-141 (50:963). 
 
 Jaclisonville, T. & K. W. R. Co., 22 Ex • parte Massacliusetts, 197 
 
 148 V. S. 372-378 (37:486), and U. S. 482-488 (49:845). 
 authorities cited. 
 
 36 
 
402 FEDERAL PEOCEDUKE AT LAW. § 505 
 
 the proceedings of military tribunals. Such tribunals possess- 
 ing no jurisdiction of cases in law and equity within the meaning 
 of the third article of the federal constitution, and the question 
 of the issue of the writ of certiorari by the supreme court in 
 the exercise of any inherent general power cannot arise in re- 
 spect of them.^' 
 
 § 505. Jurisdiction to issue the writ under the judiciary act 
 of March 3, 1891.— By the sixth section of the judiciary act of 
 March 3, 1891, the supreme court is given jurisdiction to issue 
 the writ of certiorari to the United States circuit court of ap- 
 peals, to remove a large class of cases for review and deter- 
 mination with the same power and authority in the case as if 
 it had been carried to the supreme court by appeal or writ of 
 error.^* 
 
 23 Re Vidal, 179 U. S. 126-127 6, p. 826; Kingman & Co. v. West- 
 < 45: 118). ern Manufacturing Co., 170 U. S. 
 
 2*26 U. S. Stat, at L. ch. 517, sec. 675-681 (42:1192). 
 
CHAPTER XIII. 
 
 THE ADMIRALTY JURISDICTION OP THE DISTRICT COURTS OF 
 THE UNITED STATES. 
 
 (a) The Basis of the Admiralty 
 
 JUEISDICTION OF THE FED- 
 ERAL Judiciary. 
 
 :§ 506. Three great jurisdictions 
 embraced within the ju- 
 dicial power of the Uni- 
 ted States. 
 
 507. The question as to the lim- 
 
 its of the judicial power 
 in admiralty and mari- 
 time jurisdiction is a ju- 
 dicial question. 
 
 508. Same — Judicial tendency to 
 
 enlarge the jurisdiction. 
 
 509. The general maritime law 
 
 not in force in this coun- 
 try except so far as adopt- 
 ed. 
 
 510. The power of congress to 
 
 legislate upon the subject 
 of maritime law. 
 
 511. Legislative adoption of rule 
 
 of general maritime law. 
 
 512. The maritime code of the 
 
 United States. 
 
 513. Same — The limited liability 
 
 act. 
 
 514. Same — The Harter act. 
 
 515. Same — Legislation of con- 
 
 gress in regard to sea- 
 men. 
 
 516. Federal legislation forfeit- 
 
 ing vessels fitted out with 
 intent to violate neutral- 
 ity. 
 
 517. The law of the high seas. 
 
 i)18. Same — Contracts of af- 
 freightment made in for- 
 eign countries. 
 
 § 519. The judicial power extends 
 to two classes of civil 
 suits in admiralty. 
 
 520. In the adjudication of 
 
 prizes, courts of admiral- 
 ty are governed by the 
 laws of nations. 
 
 521. Power of congress to make 
 
 rules concerning prizes or 
 maritime captures. 
 
 522. Seizure and condemnation 
 
 of piratical vessels. 
 
 523. Forfeiture and condemna- 
 
 tion of maritime captures 
 not dependent upon crim- 
 inal conviction In per- 
 sonam. 
 
 524. Rule defining the public 
 
 navigable waters of the 
 United States. 
 
 525. Same — Portage and arti- 
 
 ficial improvements. 
 
 526. Same — Navigable rivers 
 
 flowing wholly within the 
 territorial limits of one 
 state. 
 
 527. Sam e — Same — Illustration 
 
 — The Alabama river. 
 
 528. Sam e — Same — Same — The 
 
 Yazoo river in the state 
 of Mississippi. 
 
 529. Same — Same — ^^Same — Grand 
 
 river in the state of Mich- 
 igan. 
 
 530. Sam e — Same — Same — Pox 
 
 river in the state of Wis- 
 consin. 
 
 531. Same — Canals. 
 
 532. Same — The admiralty juris- 
 
404 
 
 FEDERAL PROCEDURE AT LAW. 
 
 diction not controlled ty 
 the power to regulate 
 commerce. 
 
 533. Same — What are navigable 
 
 waters is a judicial ques- 
 tion. 
 
 534. Rule defining navigable 
 
 waters of the state. 
 
 535. The constitutional grant of 
 
 judicial power over ad- 
 miralty and maritime 
 causes did not operate as 
 a cession of - navigable 
 waters. 
 
 536. Criminal jurisdiction in ad- 
 
 miralty. 
 
 537. History of federal legisla- 
 
 tion vesting admiralty 
 jurisdiction — N)nth sec- 
 tion of the original ju- 
 diciary act. 
 
 538. Same — Same — Seizures 
 
 upon water. 
 
 539. Same— Act of Feb. 26, 1845 
 
 — Founded i n judicial 
 mistake. 
 
 540. Same — Same — Same — Ob- 
 
 solete legislation. 
 
 541. The state courts have no 
 
 admiralty jurisdiction. 
 
 542. Same — The states may cre- 
 
 ate maritime liens, but 
 cannot confer on their 
 own courts admiralty ju- 
 risdiction to enforce them. 
 
 543. Same — Same — State cannot 
 
 create lien on foreign ves- 
 sel. 
 
 544. Contract and tort the 
 
 sources of admiralty ju- 
 risdiction — Exceptions. 
 
 545. Maritime contracts. 
 
 546. Same — Contracts not mari- 
 
 time—Building ship. 
 
 547. Same — Same — Mortgage of 
 
 vessel. 
 
 548. Same — Same — Same — 
 
 Mortgage not made mari- 
 time contract by the reg- 
 istry act. 
 
 § 549. Marine torts. 
 549a. Maritime liens — Defined. 
 549 &. Same — Difference between 
 maritime lien and com- 
 mon law lien. 
 
 550. Same — The subjects of mar- 
 
 itime liens. 
 
 551. Same — A maritime lien is- 
 
 a present right of prop- 
 erty. 
 
 552. Same — Maritime liens arise- 
 
 out of both contract and 
 tort. 
 
 553. Same — When lien is creat- 
 
 ed. 
 
 554. Same — Priority of mari- 
 
 time liens. 
 
 555. Same — Same — Lien arising 
 
 out of collision takes 
 precedence over antece- 
 dent lien for supplies. 
 
 556. Same — Same — Maritime 
 
 lieu for supplies takes 
 precedence over prior 
 mortgage. 
 
 557. Forms of actions or suits 
 
 in admiralty. 
 
 558. Same — Jurisdiction in rem 
 
 based on maritime lien. 
 
 559. Same — Intervention ipro in- 
 
 teresse suo. 
 
 (6) The Exclusive Origin ai- Ju- 
 
 BISDICTION OF THE DiSTKlOT 
 
 Courts op the United 
 States in Admiralty and 
 Maritime Causes. 
 
 560. Jurisdiction of civil causes 
 
 in admiralty. 
 
 561. Suits on maritime con- 
 
 tracts. 
 
 562. Suits based on marine torts. 
 
 563. Same — Immaterial that th& 
 
 tort is committed within 
 the waters of a foreign 
 country. 
 
 564. Same — Tt) enforce mari- 
 
 time liens. 
 
 565. The ship and the owner not 
 to be joined in the same 
 
 libel. 
 
§ 506 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 
 
 .405 
 
 § 566. Jurisdiction of suits by ma- 
 terialmen. 
 
 567. Jurisdiction of suits by sea- 
 
 men for wages. 
 
 568. Same — ^Wages not depend- 
 
 ent on freight 
 
 569. Jurisdiction of suits by 
 
 master for his wages. 
 
 570. Towage contracts. 
 
 571. Jurisdiction of suits to re- 
 
 cover compensation for 
 pilotage. 
 
 572. Same — State laws regulat- 
 
 ing pilotage constitution- 
 al. 
 
 573. Jurisdiction of suits for sal- 
 
 vage. 
 
 574. Same — Libel for salvage 
 
 against the United States. 
 
 575. General average contribu- 
 
 tion. 
 
 576. Jurisdiction of suits on pol- 
 
 icies of marine Insurance. 
 
 577. Jurisdiction of suits on 
 
 maritime hypothecation. 
 
 578. Same — Bottomry Bonds De- 
 
 fined. 
 
 579. Same — Respondentia bonds. 
 
 580. Jurisdiction of suits on af- 
 
 freightment contracts. 
 580o. Jurisdiction of suits on 
 contracts for the trans- 
 portation of persons. 
 
 581. Jurisdiction of suits based 
 
 on charter-party. 
 
 582. Demurrage. 
 
 583. Stevedores. 
 
 584. Wharfage. 
 
 585. Lighterage. 
 
 586. Consortship. 
 
 587. Jurisdiction of pettitory 
 
 and possessory suits. 
 
 § 588. Jurisdiction of suits for 
 damages by collision. 
 
 589. Same — Collision infra cor- 
 
 pus comltatus. 
 
 590. Same — Venue of suits for 
 
 damages by collision. 
 
 591. Same — Concurrent common 
 
 law remedy for damages 
 by collision. 
 
 592. Jurisdiction of suits for 
 
 damages to vessels caused 
 by obstructions negligent- 
 ly left in navigable wa- 
 ters. 
 
 593. Jurisdiction of libel in rem 
 
 against vessel for negli- 
 gent destruction of bea- 
 con. 
 
 594. Jurisdiction of suits for as- 
 
 sault and battery. 
 
 595. Action for marine tort re- 
 
 sulting in death. 
 
 596. Same — Jurisdiction in ad- 
 
 miralty under state stat- 
 utes. 
 
 597. Jurisdiction of suits under 
 
 the limited liability act. 
 
 598. Jurisdiction of maritime 
 
 seizures. 
 
 599. Same — Seizure necessary to 
 
 vest jurisdiction. 
 
 600. Same — Venue of suits to 
 
 forfeit and -condemn seiz- 
 ures. 
 
 601. Jurisdiction of suits for the 
 
 restitution of vessels ille- 
 gally seized. 
 
 602. Jurisdiction of prize jure 
 
 belli. 
 
 603. Venue of suits in admiral- 
 
 ty. 
 
 604. Same — Interventions. 
 
 (a) The Basis of the Admiralty Jurisdiction of the Federal 
 
 Judiciary. 
 
 § 506. Three great jurisdictions embraced within the judi- 
 cial power' of the United States.— The judicial power of the 
 United States, granted and defined by the federal constitution, 
 
406 FEDERAL PEOCEDUEE AT LAW. § 506 
 
 extends to and embraces three great classes of judicial contro- 
 versies, which were clearly defined and distinguished in the 
 judiciary of England and her colonies at the time of the es- 
 tablishment of our government, namely: (1) actions at common 
 Jaw, (2) suits in equity, and (3) suits in admiralty. And the 
 Constitutional grant of judicial power, by necessary implica- 
 tion, recognized the existence of three great, distinct systems 
 of law and jurisprudence, namely: (1) the body of rules and 
 principles of the English common law, which the English peo- 
 ple had, by the methods of legal induction and judicial evolu- 
 tion, developed and established, and whose principles formed 
 the municipal jurisprudence of England and the palladium of 
 English liberties, and were brought to this country by the 
 colonies and formed the basis of the jurisprudence of the sev- 
 eral states; and (2) the system of English equity jurisprud- 
 ence, which had been developed and administered by the high 
 court of chancery in England, and which has also become a 
 part of the jurisprudence of the several states; and (3) the sys- 
 tem of maritime law which had been developed and matured 
 bj^ the most enlightened and commercial nations of the world, 
 and which had been established and existed for centuries be- 
 fore the birth of this nation, and which, at the time of owe 
 revolution, was administered by the admiralty courts of con- 
 tinental Europe, the high court of admiralty in England, and 
 by the vice admirals under special commission in the colonies. "■ 
 
 lU. S. Const, art. Ill, sec. 2; 1 of our own, operative throughout 
 
 U. S. Stat, at L. ch. 20, sees. 9, 11, the United States, cannot be doubt- 
 
 pp. 73, 77 ; Jackson v. Magnolia, 20 ed. The general system of mari- 
 
 How. 296 (15:909); The Belfast time law which was familiar to 
 
 V. Boon, 7 Wall. 624 (19:267); the lawyers and statesmen of the 
 
 Sears v. Wills, 1 Black, 108, 115 country when the constitution was 
 
 (17:35); Waring v. Clark, 5 How. adopted, was most certainly in- 
 
 441 (12-.226); The Lottawana, 21 tended and referred to when it was 
 
 Wall. 558, 609 (22:654); The St. declared in that instrument that 
 
 Lawrence, 1 Black, 526, 527 (17: the judicial power of the United 
 
 183) ; Butler v. Steamship Co., 130 States shall extend 'to all cases of 
 
 U. S. 527, 558 (32:1017); De Lovio admiralty and maritime jurisdic- 
 
 V. Boit, 2 Gall. 398, Fed. Cas. No. tion.' But by what criterion are 
 
 3,776. we to ascertain the precise limits 
 
 In The Lottawana, supra, Brad- of the law thus adopted? The 
 
 ley. Justice, delivering the opinion constitution does not define it. It 
 
 of the court, said: does not declare whether it was 
 
 "That we have a maritime law intended to embrace the entire 
 
§ 507 admir^UjTY jurisdiction of district courts. 407 
 
 § 507. The question as to the limits of the judicial power m 
 admiralty and maritime jurisdiction is a judicial question. — ■ 
 
 The constitution delegated to the federal government judicial 
 power in all eases of admiralty and maritime jurisdiction, 
 without, however, precisely fixing the definite boundaries of 
 that power; and the question as to the true limits and definite 
 boundaries of the power is exclusively a judicial question, to 
 be determined, in the last resort, by the federal supreme court, 
 as the cases calling for it may arise, by a reasonable construc- 
 tion of the words of the constitution containing the grant of 
 the power, taken in connection with the whole instrument, and 
 the purposes for which the power was granted to the federal 
 government, and a consideration of the constitutional history 
 of this country and the principles worked out by previous ad- 
 judications of the court upon the subject, and the actual con- 
 ditions affecting navigation and the necessities of maritime 
 enterprises and interests. No law enacted by a state, or by 
 the congress of the United States can increase or diminish the 
 judicial power vested by the constitution in the federal govern- 
 ment in cases of admiralty and maritime jurisdiction.^ 
 
 maritime law as expounded in the rence, 1 Black, 522, 532 (17:180); 
 
 treatises, or only the limited and The Lottawana, 21 Wall. 558, 609 
 
 restricted system which was re- (22:654); Butler v. Steamship 
 
 ceived in England, or lastly, such Co., 130 U. S. 527, .558 (32:1017); 
 
 modification of both of these as The Blackheath, 195 U. S. 361, 369 
 
 was accepted and recognized as (49:236). 
 
 law in this country. Nor does the In the St. Lawrence, supra, 
 
 constitution attempt to draw the Chief Justice Taney, delivering 
 
 boundary line between maritime the opinion of the court, while 
 
 law and local law; nor does it lay discussing the distinction between 
 
 down any criterion for ascertain- the power of a court upon a ques- 
 
 ing that boundary. It assumes tlon of jurisdiction, and its au- 
 
 that the meaning of the phrase, thority over its forms of proce- 
 
 'admiralty and maritime jurisdic- dure, said: 
 
 tion,' is well understood. It treats "Judicial power, in all cases of 
 this matter as the cognate ones of admiralty and maritime jurisdic- 
 common law and equity, when it tion, is delegated by the constitu- 
 speaks of 'cases in law and equity,' tion to the federal government in 
 or of 'suits at common law,' with- general terms, and courts of this 
 out defining those terms, assuming character had then been estab- 
 them to be known and under- lished in all commercial and mar- 
 stood." itime nations, differing, however, 
 2 The Genesee Chief, 12 How. materially in different countries 
 443, 465 (13:1058); The St. Law- in the powers and duties confided 
 
408 FEDERAL PROCEDURE AT LAW. § 508 
 
 § 508. Same — Judicial tendency to enlarge the jurisdiction. 
 
 There has been a uniform and unbroken judicial tendency to 
 enlarge and extend, by constitutional construction, the judicial 
 power of the federal government over admiralty and maritime 
 causes, in order to meet the needs and requirements of the 
 growing commerce of the country, in so far as that commerce 
 is affected by navigation and maritime transactions and their 
 aids and incidents.' This policy of extension may be said to 
 have begun with the opinion * of Chief Justice Taney, rendered 
 in 1851, overruling a decision ° rendered in 1825, by Justice 
 Story, holding that the jurisdiction of the courts of admiralty 
 of the United States was limited to the ebb and flow of the 
 tide. The opinion of Chief Justice Taney established the mod- 
 ern doctrine, which has since been invariably adhered to and 
 followed, that "not the ebb and flow of the tide, but the actual 
 navigability of the water, is the test of jurisdiction," in all 
 admiralty and maritime cases depending upon locality.^ The 
 common law principle of flexbility, which enabled the English 
 courts to apply the principles of the common law to the ex- 
 panding necessities of civilization, has been applied by the 
 
 to them; the extent of the juris- state law can enlarge it, nor can 
 diction conferred depending very an act of congress or rule of court 
 much upon the character of gov- make it broader than the judicial 
 ernment in which they were ore- power may determine to be its 
 ated; and this circumstance, with true limits. And this boundary 
 the general terms of the grant, is to be ascertained by a reason- 
 rendered it difficult to define the able and just construction of the 
 exact limits of its power in the words used in the constitution, 
 United States. taken in connection with the 
 "This difficulty was increased whole instrument, and the pur- 
 by the complex character of our poses for which admiralty and 
 government, where separate and maritime jurisdiction was grant- 
 distinct specified powers of sov- ed to the federal government." 
 ereignty are exercised by the Unit> ^ The Blackheath, 195 U. S. 3G1, 
 ed States and a state Independ- 369 (49:236). 
 
 ently of each other within the * The Genesee Chief, 12 How. 
 
 same territorial limits. And the 443 (13:1058). 
 
 reports of the decisions of this s The Thomas Jefferson, 10 
 
 court will show that the subject Wheat. 428 (6:358). 
 
 hag often been before it, and care- « Fretz v. Bull, 12 How. 466 (13: 
 
 fully considered, without being 1068) ; The Magnolia, 20 How. 296 
 
 able to fix with precision its def- (15:909); The Daniel Ball, 10 
 
 inite boundaries; but certainly no Wall. 557 (19:999). 
 
§ 509 
 
 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 
 
 409 
 
 federal courts to admiralty and maritime causes and transac- 
 tions." 
 
 § 509. The general maritime law not in force in this country 
 except so far as adopted. — The general maritime law is in 
 force in this country, and constitutes a' part of its maritime 
 code, so far only as received and accepted and administered 
 in the federal courts or adopted by the laws and usages of the 
 United States;^ and the maritime usages of foreign countries 
 are not obligatory upon the federal judiciary, and will not be 
 respected as authority by it, except so far as they are con- 
 sonant with the well-settled principles of English and American 
 jurisprudence.® Whilst it is true that the general ' maritime 
 law constitutes the basis and ground-work of the maritime 
 code of the United States, yet it is also true that it is operative 
 in this country in so far only as it has been received and ac- 
 cepted and adopted in some appropriate and authoritative 
 manner.'" 
 
 'The Genesee Chief, 12 How. 
 443 (13:1058). 
 
 8. The John G. Stephens, 170 U. 
 S. 113, 127 (42:969); The Lotta- 
 wana, 21 Wall. 558, 572 (22:654); 
 The Belgenland, 114 U. S. 355, 369 
 (29:152); Liverpool & G. W. 
 Steam. Co. v. Phoenix Ins. Co., 129 
 U. S. 397 (32:788) ; Ralli v. Troop, 
 157 U. S. 386 (39:742); Butler v. 
 Steamship Co., 130 U. S. 527, 558 
 (32:1017). , 
 
 8 The Elfreda, 172 U. S. 186, 206 
 (43:413). 
 
 10 The Lottawana, 21 Wall. 558j 
 572 (22:654); The Scotland, 105 
 U. S. 24, 36 (26:1001). 
 
 In The Lottawana, supra, Brad- 
 ley, Justice, delivering the opinion 
 of the court, discussing the claim 
 of materialmen to a maritime lien 
 on the vessel, for needful repairs 
 and supplies furnished upon her 
 credit in the home port, which 
 was sought to be upheld under the 
 general maritime law, said: 
 
 "TJie ground on which we are 
 asked to overrule the judgment in 
 
 the case of The General Smith is, 
 that by the general maritime law, 
 those who furnish necessary ma- 
 terials, repairs and supplies to a 
 vessel, upon her credit, have a 
 lien on such a vessel therefor, as 
 well as when furnished in her 
 home port as when furnished in 
 a foreign port, and the courts of 
 admiralty are bound to give effect 
 to that lien. The proposition as- 
 sumes that the general maritime 
 law governs this case, and is bind- 
 ing on the courts of the United 
 States. 
 
 "But is is hardly necessary to 
 argue that the maritime law is 
 only so far operative as law in any 
 country as it is adopted by the 
 laws and usages of that country. 
 In this respect it is like interna- 
 tional law or the laws of war, 
 which have the effect of law in 
 no country any further than they 
 are accepted and received as such; 
 or, like the case of the civil law, 
 which forms the basis of most 
 European laws, but which has the 
 
410 
 
 FEDERAL PEOCEDURE AT LAW. 
 
 § 5ia 
 
 § 510. The power of congress to legislate upon the subject 
 of maritime law. — Whilst it is true that the question as to the 
 definite boundaries of the judicial power of the United States 
 in admiralty and maritime eases is exclusively a judicial ques- 
 tion, and congress can neither restrict nor extend those boun- 
 
 force of law in each state only so 
 far as it is adopted therein, and 
 with such modifications as are 
 deemed expedient. The adoption 
 of the common law by the several 
 states of this union also presents 
 an analogous case. It is the hasis 
 of all the state laws; but is mod- 
 ified as each sees fit. Perhaps the 
 maritime law is more uniformly 
 followed by commercial nations 
 than the civil and common laws 
 are by those who use them. But, 
 like those laws, however fixed, 
 definite and beneficial the theoret- 
 ical code of maritime law may be, 
 it can have only so far the effect 
 of law in any country as it is per- 
 mitted to have. But the actual 
 maritime law can hardly be said 
 to have a fixed and definite form 
 as to all the subjects which may 
 be embraced within its scope. 
 Whilst it is true that the great 
 mass of maritime law is the 
 same in all commercial countries, 
 yet, in each country peculiarities 
 exist either as to some, of the rules, 
 or in the mode of enforcing them. 
 Especially is this the case on the 
 outside boundaries of the law, 
 where it comes in contact with or 
 shades off into the local or tou- 
 nicipal law of the particular coun- 
 try and affects only its own mer- 
 chants or people in their relations 
 to each other. Whereas, in mat- 
 ters affecting the stranger or for- 
 eigner, the commonly received 
 law of the whole commercial world 
 is more assiduously observed — as, 
 in justice, it should be. No one 
 
 doubts that every nation may 
 adopt its own maritime code.. 
 Prance may adopt one; England 
 another; the United States a 
 third; still, the convenience of the- 
 commercial world, hound together, 
 as it is, by mutual relations of 
 trade and intercourse, demands 
 that, in all essential things where- 
 in those relations bring them in 
 contact, there should be a uniform 
 law founded on natural reason and. 
 justice. Hence, the adoption by 
 all commercial nations (our own 
 included) of the general maritime- 
 law as the basis and groundwork, 
 of all their maritime regulations. 
 But no nation regards itself as 
 precluded from making occasional 
 modifications suited to its locality 
 and the genius of its own people 
 and institutions, especially in mat- 
 ters that are of merely local and 
 municipal consequence, and do not 
 affect other nations. It will be 
 found, therefore, that the mari- 
 time codes of France, England, 
 Sweden, and other countries, are 
 not one and the same in every par- 
 ticular; but that, whilst there is a 
 general correspondence between 
 them arising from the fact that 
 each adopts the essential princi- 
 ples, and the great mass of the 
 general maritime law as the basis. 
 of its system, there are varying 
 shades of difference corresponding 
 to the respective territories, cli- 
 mate and genius of the people of 
 each country respectively. Each 
 state adopts the maritime law, not 
 as a code having any independent 
 
§ 511 
 
 ADMIRALTY JUEISDICTION OF DISTRICT COURTS. 
 
 411 
 
 daries as defined by the judiciary/^ yet, it is also true that, 
 .within those boundaries as so declared and defined, congress 
 has ample power to legislate upon maritime subjects; and its 
 enactments, when so guarded and limited, and not in conflict 
 with any provision of the federal constitution, are a part of the 
 maritime law of the country, and, being a part of the mari- 
 time law, their operation is territorially coextensive with the 
 admiralty and maritime jurisdiction of the national govern- 
 ment, which, by the settled law of the country extends wher- 
 ever public navigation extends — on the seas and the great 
 lakes, and all the navigable rivers and other navigable waters 
 connected with the lakes and the sea.^^ 
 
 § 511. Legislative adoption of rule of general maritime law. 
 Where congress, by legislative enactment, adopts a rule of the 
 general maritime law, the force and authority of the rule so 
 
 or Inherent force, propria vigore, 
 but as its own law with such mod- 
 ifieations and qualifications as it 
 sees fit. Thus adopted and thus 
 qualified in each case, it becomes 
 the maritime law of the particu- 
 lar nation that adopts it. And 
 without such voluntary adoption 
 it would not be law. And thus it 
 happens, that, from the general 
 practice of commercial nations in 
 making the same general law the 
 basis and groundworfe of their re- 
 spective maritime systems, the 
 great mass of maritime law which 
 is thus received by these nations 
 in common, comes to be the com- 
 mon maritime law of the world. 
 
 "This account of the maritime 
 law, if correct, plainly shows that 
 in particular matters, especially 
 such as approach a merely munici- 
 pal character, the received mari- 
 time law may differ in different 
 countries without affecting the 
 general integrity of the system as 
 a harmonious whole. The govern- 
 ment of one country may be will- 
 ing to give to its citizens, who 
 supply a ship with provisions at 
 
 her home port where the owner 
 himself resides, a lien on the ship; 
 whilst that of another country 
 may take a contrary view of the 
 expediency of such a rule. The 
 difference between them in a mat- 
 ter that concerns only their own 
 citizens, in each case, cannot seri- 
 ously affect the narmony and con- 
 sistency of the common maritime 
 law which each adopts and ob- 
 serves. 
 
 "This view of the subjedt does 
 not in the slightest degree detract 
 from the proper authority and re- 
 spect due to that venerable law 
 of the sea, which has been the sub- 
 ject of such high encomiums from 
 the ablest jurists of all countries; 
 it merely places it upon the just 
 and logical grounds upon which 
 it is accepted, and with proper 
 qualifications, received with the 
 binding force of law in all coun- 
 tries." 
 
 11 Ante, sec. 507, and authorities 
 there cited. 
 
 12 Butlei* V. Steamship Co., 130 
 V. S. 527, 558 (32:1017); The City 
 of Norwalk, 55 Fed. 105; The 
 
412 
 
 FEDEEAL PEOCEDUEE AT LAW. 
 
 § 513 
 
 adopted depend upon the federal statute, and not upon any 
 inherent force of the general maritime law.'^' 
 
 § 512. The maritime code of the United States. — The con- 
 stituent elements of the maritime code of the United States 
 are : (1) The rules, principles and doctrines of the general 
 maritime law which have been, in soiae authoritative mode, 
 received, accepted and adopted in this country as a part of its 
 maritime system, and (2) the laws enacted by congress as a 
 part of the maritime law, and which are within the limits of 
 the judicial power of the United States in cases of admiralty 
 and maritime jurisdiction, as the limits of that power has been 
 defined by the judicial power of the government.^* 
 
 § 513. Same — The limited liability act. — The legislation of 
 ■congress known as the "Limited Liability Act," ^' and amend- 
 ments ^° thereto, limiting the liability of ship owners in certain 
 specified cases, constitute a part of the maritime law of this 
 country, and are, in their operation, coextensive with public 
 navigation, and cases arising under them are within the ad- 
 miralty and maritime jurisdiction of the courts of the United 
 States." 
 
 Scotland, 105 TJ. S. 24, 36 (26: 
 1001) ; Ex parte Garnett, 141 U. 
 S. 1, 18 (35:631). 
 
 13 Ex parte Garnett, 141 U. S. 1, 
 18 (35:631); The Scotland, 105 U. 
 S. 24, 36 (26:1001). 
 
 1* The Lottawana, 21 Wall. 558, 
 '609 (22:654); Butler v. Steamship 
 Co., 130 U. S. 527, 558 (32:1017); 
 Norwich & N. Y. Transp. Co. v. 
 Wright, 13 Wall. 104, 127 (20:_ 
 585); The Scotland, 105 TJ. S. 24," 
 36 (26:1001); Providence & N. Y. 
 S. S. Co. V. Hill Mfg. Co., 109 U. S. 
 578, 593 (27:1038); Ex parte Gar- 
 nett, 141 U. S. 1, 18 (35:631). 
 
 15 XJ. S. Rev. Stat. sees. 4281- 
 4289, 4 Fed. Stat. Anno. 837-852.' 
 
 i« 23 U. S. Stat, at L. ch. 121, sec. 
 18, p. 57, 4 Fed. Stat. Anno. 852; 
 24 U. S. Stat, at L. ch. 421, sec. 4, 
 pp. 80, 81, 4 Fed. Stat. -Anno. 852. 
 
 1' Ex parte Garnett, 141 U. S. 
 1, 18 (35:031); Norwich & N. Y. 
 
 Trans. Co. v. Wright, 13 Wall. 104, 
 127 (20:585); The Lottawana, 21 
 Wall. 558, 577 (22:054); The Scot- 
 land, 105 U. S. 24, 36 (26:1001); 
 The Benefactor, 103 U. S. 239, 250 
 (26:351) ; The Great Western, 118 
 U. S. 520 (30:156); Butler v. 
 Steamship Co., 130 U. S. 527, 558 
 (32:1017). 
 
 In Butler v. Steamship Co,-, 
 which presented the question 
 whether the limited liability act 
 applied to - cases of personal in- 
 jury and death, which was decided 
 in the affirmative in that case, Mr. 
 Justice Bradley, delivering the 
 opinion of the court, said: 
 
 "One of the modifications of the 
 maritime law, as received here, 
 was a rejection of the law of lim- 
 ited liability. We have rectified 
 that. Congress has restored that 
 article to our maritime code. We 
 cannot doubt Its power to do this. 
 
§ 516 
 
 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 
 
 413 
 
 § 514. Same— The Harter Act.— The Harter Act," regulat- 
 ing contracts of affreightment entered into by the owners of 
 vessels transporting merchandise/^ constitutes a part of the 
 maritime laws of this country, and will be applied to foreign 
 vessels in suits brought in the United States.^" 
 
 § 515. Same — Legislation of congress in regard to seamen. — 
 One of the most important statutorj^ features of the maritime 
 code of this country is to be found in the extensive and judi- 
 cious legislation of congress in regard to seamen, covering the 
 entire field of their rights, duties and liabilities, and establish- 
 ing aU. needful rules and regulations for their protection both 
 at home and abroad.^^ 
 
 § 516. Federal legislation forfeiting vessels fitted out with 
 intent to vi'olate neutrality. — The provison of the federal stat- 
 ute ^^ forfeiting vessels fitted out in the United States with in- 
 tent to violate the neutral and pacific relations of this country 
 
 As the constitution extends the 
 judicial power of the United 
 States to all cases of admiralty and 
 maritime jtirisdiction, and as 
 this jurisdiction is held to be ex- 
 clusive, the power of legislation 
 on the same subject must necessa- 
 rily be in the national legislature, 
 and not in the state legislatures. 
 It is true, we have held that the 
 boundaries, and limits of the ad- 
 miralty and maritime jurisdiction 
 are matters of judicial cognizance, 
 and cannot be effected or con- 
 trolled by legislation, whether 
 state or national. Butfwlthln these 
 boundaries and limits the law 
 itself is that which has always 
 been received as maritime law in 
 this country, with such amend- 
 ments and modifications as con- 
 gress may from time to time have 
 adopted. 
 
 "It being clear, then, that the 
 law of limited liability of ship 
 owners is a part of our maritime 
 code, the extent of its territorial 
 operation (as before intimated) 
 cannot be doubtful. It Is neces- 
 
 sarily coextensive with that of the 
 general admiralty and maritime 
 jurisdiction, and that, by the set- 
 tled law of this country, extends 
 wherever public navigation ex- 
 tends — on the sea and the great 
 inland lakes, and the navigable 
 waters connecting therewith." 
 
 18 27 U. S. Stat, at L. ch. 105, p. 
 445, 4 Fed. Stat. Anno. 854-857. 
 
 i»The Delaware, 161 U. S. 459, 
 474 (40:771). 
 
 20 The Germanic, 196 U. S. 589, 
 599 (49:610); The Chattahoochee, 
 173 U. S. 540 (43:801). 
 
 21 U. S. Rev. Stat. sees. 4501- 
 4612; 18 U. S. Stat, at L. ch. 260, 
 p. 64; 23 U. S. Stat, at L. ch. 121, 
 pp. 53-60; 24 U. S. Stat, at L. ch. 
 421, pp. 79-83; 26 U. S. Stat, at L. 
 ch. 801, p. 320; 28 V. S. Stat, at L. 
 ch. 97, p. 667; 29 U. S. Stat, at L. 
 ch. 389, pp. 687-692; 30 U. S. Stat, 
 at L. ch. 28, pp. 756-764; 3 U. S. 
 Comp. Stat. 1901, pp. 3061-3125; 6 
 Fed. Stat. Anno. 843-935. 
 
 22 U. S.'Rev. Stat. sec. 5283; 3 V. 
 S. Comp. Stat. 1901, pp. 3599, 3600; 
 5 Fed. Stat. Anno. 358-365. 
 
414 FEDERAL PEOCEDUEB AT LAW. § 517 
 
 with foreign nations, is a part of the maritime code and is en- 
 forced by civil suit in rem on the instance side of the courts 
 of admiralty, independently of any criminal conviction in per- 
 sonam.^^ 
 
 § 517. The law of the high seas. — The courts of every coun- 
 try ^^^ll administer justice according to its own laws, unless a 
 different law be shown to apply; and this rule applies to trans- 
 actions taking place on the high seas. If a collision occur on 
 the high seas, where the law of no particular state or country- 
 has exclusive force, but all are equal, any forum called upon to 
 settle the rights, and to determine the controversies arising 
 therefrom, would, prima facie, determine them by its own laws 
 as presumptively expressing the rules of justice; but if the 
 contesting vessels belong to the same foreign nation, the court 
 will assume that they were subject to the law of their nation, 
 carried under their common flag, and would determine their 
 controversy accordingly. But if they belong to different na- 
 tions, having different laws, since it would be unjust to apply 
 the laws of either to the exclusion of the other, the law of the 
 forum, that is, the maritime law as received and practiced 
 therein, would properly furnish the rule of decision. In all 
 other cases, each nation will also administer justice according 
 to its own laws ; and it will do this without respect to persons, 
 to the stranger as well as to the citizen.^* The law of the sea 
 is of universal obligation, and no single nation can change it. 
 No statute of one or two states can create obligations for the 
 world. Like all the laws of nations, the law of the sea rests 
 upon the common consent of civilized communities. It is of 
 force, not because it was prescribed by any superior power, 
 but because it has been generally accepted as a rule of conduct. 
 Whatever may have been its origin, whether in the usages of 
 navigation or in the ordinances of maritime states, or in both, 
 it has become the law of the sea only by the concurrent sanc- 
 tion of those nations who may be said to constitute the com- 
 mercial world. And the rules of navigation mentioned in the 
 British orders in council of January 9, 1863, and in the Act of 
 congress of the United States of 1864, having been accepted 
 
 23, United states v. The Three sen, 114 U. S. 355, 373 (29:152); 
 
 Friends, 166 U. S. 1-83 (41:897). Liverpool and Great Western 
 
 2-1 The Scotland, 105 U. S. 24, 36 Steam Co. v. Ins. Co., 129 U. S. 
 
 (26:1001); The Belgenland v. Jen- 397-464 (32:788). 
 
§ 519 ADMIRALTY JURISDICTION OP DISTRICT COURTS. 415 
 
 as obligatory rules by more than thirty of the principal com- 
 mercial states of the world, they are regarded as part, at least, 
 ■of the law of the sea, and of that fact the courts of this coun- 
 try will take judicial notice.^' 
 
 § 518. Same — Contracts of affreightment made in foreign 
 countries.-^The general rule of law, that the nature, the obli- 
 gation, and the interpretation of a contract are to be governed 
 by the law of the place where it is made, unless the parties at 
 the time of making it have some other law in view, applies to 
 maritime shipments, and requires a contract of affreightment, 
 made in one country between citizens or residents thereof, and 
 'the performance of which begins there, to be governed by the 
 law of that country, unless the parties, when entering into the 
 ■contract, clearly manifest a mutual intention that it shall be 
 governed by the law of some other country,^" but the courts of 
 one country cannot take cognizance of the law of another 
 without plea and proof,^^ and, in a suit in the admiralty courts 
 of the United States upon a maritime contract of affreightment 
 made in a foreign country to be governed by its laws, the par- 
 ties, if they desire the application of those laws, must allege 
 and prove them as a fact.-' 
 
 § 519. The judicial power extends to two classes of civil 
 suits iii admiralty. — The judicial power of the United States 
 extends to and embraces two great classes of civil suits in 
 admiralty, namely: (1) Suits arising under the maritime law 
 and which are by that law cognizable in the instance court of 
 admiralty, and (2) prize cases, or cases arising out of captures 
 jure belli, and which are cognizable in the prize court of ad- 
 miralty. In England these are different courts, and although 
 the jurisdiction of each of them is always exercised by the 
 same person, yet he holds the ofSces by different commissions. 
 But, under the constitution of the United States, the instance 
 
 25 The Scotia, 14 Wall. 170, 189 Steam Co. v. Ins. Co., 129 U. S. 
 (20:822); The Belgfenland v. Jen- 397-464 (32:788); Qhurch v. Hub- 
 sen, 114 U. S. 355, 373 (29:152); hart, 2 Cranch. 187-236 (2:249); 
 U. S. Rev. Stat. sec. 4233; 2 Fed. Ennis v. Smith, 14 How. 426, 427 
 Stat. Anno. 183-201, where the (14:472); Pierce v. Indseth, 106 
 eases are collected. U. S. 546 (27:254). 
 
 26 Liverpool and Great Western 28 Liverpool and Great Western 
 Steam Co. v. Ins. Co., 129 U. S. Steam Co. v. Ins. Co., 129 U. S. 
 397-464 (32:788). 397-464 (32:788); The Scotland, 
 
 27 Liverpool and Great Western 105 U. S. 24, 36 (26:1001). 
 
416 FEDERAL PROCEDURE AT LAW. § 521 
 
 court of admiralty and the prize court of admiralty are the 
 same court, acting under one commission, still embracing two 
 distinct jurisdictions, and the proceedings in the two classes 
 of cases are different. When a case has been prosecuted as a 
 prize cause in the modes in use in the prize courts, and the 
 facts, when developed, show it not to be prize, but a case for 
 forfeiture under the federal statutes, no judgment of forfeiture 
 can be rendered without amending the proceedings so as to 
 conform to the requisites' of the procedure on the instance side 
 of the court; and in like manner, when a case has been prose- 
 cuted on the ' instance side, and the facts, when developed, 
 show it to be a case of prize, there can be no condemnation of 
 the property as prize without first amending the proceedings 
 so as to conform to the modes of procedure in prize courts ; and 
 upon appeal in such eases, the appellate court will reverse and 
 remand for the purposes of amendment and further proceed- 
 ings.-" 
 
 § 520. In the adjudication of prize, courts of admiralty are 
 governed by the law of nations. — In the maritime law, the word 
 prize means a legal maritime capture jure helli; there can be 
 no prize unless there be existing an actual state oi war. "The 
 right of prize and capture has its origin in the 'jus ielli,' and 
 is governed and adjudged under the laws of nations." The 
 right of maritime capture is defined by the laws of nations; 
 and, therefore, in adjudicating upon the question of prize or 
 no prize, courts of admiralty are controlled by the rules and 
 principles of international law, and not by the municipal or 
 local laws of any state or nation.^" 
 
 § 521. Power of congress to make rules concerning prizes 
 or maritime captures. — Although congress has no power to 
 either restrict or extend. the limits of the judicial power of the 
 United States over causes of admiralty and maritime jurisdic- 
 
 20 Jecker v. Montgomery, 13 459) ; United States v. The Watch- 
 How. 498-518 (14:240); S. C. 18 ful, 6 Wall. 91, 93 (18:763); Unit- 
 How. 110-126 (15:311); United ed States v. Weed, 5 Wall. 62, 74 
 States V. Weed, 5 Wall. 62, 74 (18: (18:531); Jecker v. Montgomery, 
 531); Prize Cases, 2 Black, 635, 13 Wall. 498 (14:240) ; The City of 
 699 (17:459); The Adeline, 9 Mexico, 28 Fed. 148, 150; Jecker 
 Cranch, 244; Glass v. The Betsey, v. Montgomery, 18 How. 110 (15: 
 3 Dall. 6 (1:485). 311). 
 
 so Prize Cases, 2 Black. 635 (17: 
 
§ 523 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 417 
 
 tion,'- yet it lias power to make rules concerning maritime cap- 
 tures. The federal constitution confers upon congress the- 
 power: "To declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and water." ^^ 
 The power granted by this constitutional provision to make- 
 rules concerning captures is an independent substantive power, 
 not included in that of declaring war,^^ and in the exercise of 
 that power, congress has made and established a complete code- 
 of rules for the adjudication and disposition of maritime cap- 
 tures, and the procedure to be followed in such cases.^* 
 
 § 522. Seizure and condemnation of piratical vessels. — The 
 judicial power of the United States in maritime causes extends 
 to and embraces proceedings for the condemnation of piratical 
 vessels, seized and sent in for adjudication under the legisla- 
 tion of congress "to protect the commerce of the United States 
 and punish the crime of piracy." Such proceedings are civil 
 proceedings in rem, independent of and wholly unaffected by 
 any criminal proceedings in personam, the ship being held 
 responsible for the misconduct, torts and crimes of the master 
 and crew, without regard to the ignorance or innocence of 
 the owners.^^ This legislation forms a part of the maritime 
 code of the United States.^" 
 
 § 523. Forfeitures and condemnation of maritime captures 
 not dependent upon criminal conviction in personam. — ^It is a 
 principle of federal legislation, derived from the general mari- 
 time law, that the condemnation of a vessel seized for a viola- 
 tion of the maritime code, and sent in for adjudication, is not 
 .^ependent upon a criminal conviction in personam of the mas- 
 ter, crew, or owners of the vessel, of the torts and crimes or vio- 
 
 31 Tie Genesee Chief, 12 How. 3126-3139; 6 Fed. Stat. Anno. 66- 
 443, 465 (13:1058); The St. La-wr- 87; V. S. Rev. Stat. sees. 4752, 
 rence, 1 Black, 522, 532 (17:180); 4759, 4760, 5441; 18 IT. S. Stat, at 
 The Lottawana, 21 Wall. 558, 609 L. ch. 256, p. 63. 
 
 (22:654); Butler V. Steamship Co., as tfnited States v. The Malek 
 
 130 U. S. 527, 558 (32:1017); The Adhel, 2 How. 210 (11:239); The 
 
 Blackheath, 195 U. S. 361, 369 (49: Mariana Flora, 11 Wheat. 1 (6: 
 
 236). 531); The Palmyra, 12 Wheat. 1 
 
 32 U. S. Const, art. I, sec. 8, cl. 11. (6:531). 
 
 33 Brown v. United States, 8 se u. S. Rev. Stat. sees. 4293- 
 Cranch, 110, 129 (3:504). 4299; 5 Fed. Stat. Anno. 752-755; 
 
 34 U. S. Rev. Stat sees. 4613- 3 U. S. Comp. Stat. 1901, pp. 2950- 
 4052; 3 TJ. S. Comp. Stat. 1901, pp. 2952. 
 
 37 
 
418 FEDERAL PROCEDURE AT LAW. § 524 
 
 lations of the code which subject the vessel to forfeiture and 
 condemnation. The proceeding to condemn is a civil proceed- 
 ing in rem, for the condemnation of the vessel only, in which all 
 the facts which establish the forfeiture may be alleged and 
 proved wholly independent of and without regard to any crim- 
 inal prosecution or conviction «^ personam of the persons whose 
 violations of the maritime code of the country have worked a for- 
 feiture of the vessel. The suit to condemn is a civil suit in rem, 
 and not a criminal prosecution. Indeed, in such eases, for- 
 feiture may be decreed if the proof should show the commis- 
 sion of the prohibited acts, although failing to show tlie iden- 
 tity of the particular persons by whom they were committed. 
 The civil suit for condemnation and the criminal prosecution 
 of the persons charged with the violation of the law are wholly 
 independent and are pursued in different courts, and the result 
 in the two cases may be different.^^ 
 
 § 524. Rule defining the public navigable waters of the 
 United States. — The common-law rule which made the ebb and 
 flow of the tide the test of navigability and admiralty jurisdic- 
 tion in England was based upon the physical fact that, in that 
 country, there are no waters navigable in fact which are not 
 also subject to the flow and reflow of the tide; there, the limit 
 - of the tide is also the limit of navigability in fact, and the rule 
 as applied to the actual physical conditions in England is not 
 only a rational one, but the only one that could be applied.'^ 
 
 The common-law rule as to the test of navigability and ad- 
 miralty jurisdiction was adopted in this country by the su- 
 preme court in an early decision ^° and followed for twenty- 
 five years, when the court, having pressed upon its attention 
 the inapplicability of the rule to the actual physical conditions 
 in this country, and seeing that a continuation of it would 
 necessarily produce great public inconvenience, and frustrate 
 the purpose of the framers of the constitution to secure perfect 
 equality in the rights and privileges of the citizens of the dif- 
 
 37 United States v. The Three ss Escanaba and Lake Michigan 
 
 Friends, 166 U. S. 1-83 (41:897); Transp. Company v. Chicago, 107 
 
 The Palmyra, 12 Wheat. 1 (6: U. S. 678, 691 (27:442) ; The Gene- 
 
 531); The Ambrose Light, 25 Fed. see Chief, 12 How. 443 (13:1058). 
 
 408; The Meteor, 17 Fed. Cases, a» The Thomas Jefferson, 10 
 
 178; The United States v. The Wheat. 426 (6:358) (decided in 
 
 Malek Adhel, 2 How. 210 (11:239). 1825). 
 
§ 524 
 
 ADMIRALTY JURISDICTION OP DISTRICT COURTS. 
 
 419 
 
 ferent states, by denying to the states on the great lakes and 
 those traversed by the great navigable rivers of the west the 
 benefits of the maritime law and courts of admiralty, "flatly 
 overruled" its former decision, and repudiated the eommon-law 
 rule, and established the modem doctrine that, not the ebb 
 and flow of the tide, but the actual navigability of the waters 
 is the test of admiralty jurisdiction,*" and to which doctrine 
 the court has consistently and invariably adhered ever since.*^ 
 
 *oThe Genesee Chief, 12 How. 
 443 (13:1058); in this case, which 
 arose out of a collision on Lake 
 ■Ontario ahout forty miles below 
 Niagara, Chief Justice Taney, de- 
 livering the opinion of the court 
 and giving its reasons for overrul- 
 ing its' former decision and aban- 
 doning the common law test as to 
 admiralty jurisdiction, said: 
 
 "These lakes are in truth inland 
 seas. Different states border on 
 them on one side, and a foreign 
 nation on the other. A great and 
 growing commerce is carried on 
 upon them between different states 
 a,nd a foreign nation, which is sub- 
 ject to all the incidents and haz- 
 ards that attend commerce on the 
 ■ocean. Hostile fleets have encoun- 
 tered on them, and prizes been 
 made; and every reason which ex- 
 isted for the grant of admiralty 
 jurisdiction to the general govern- 
 ment on the Atlantic seas, applies 
 with equal force to the lakes. 
 There is an equal necessity for the 
 instance and for the prize power 
 of the admiralty court to admin- 
 ister international law, and if the 
 x)ne cannot be established neither 
 can the other. 
 
 "Again, the union is formed up- 
 on the basis of equal rights among 
 all the states. Courts of admiralty 
 have been found necessary in all 
 commercial countries, not only for 
 the safety and convenience of com- 
 merce, and the speedy decision of 
 
 controversies, but also to admin- 
 ister the laws of nations in sea- 
 sons of war, and to determine the 
 validity of captures and questions 
 of prize or no prize in a judicial 
 proceeding. And it would be con- 
 trary to the first principles on 
 which the union was formed to 
 confine these rights to the states 
 bordering on the Atlantic, and to 
 the tide water rivers connected 
 with it, and to deny them to the 
 citizens who border on the great 
 lakes, and the great navigable 
 streams which flow through the 
 western states. Certainly such 
 was not the intention of the fram- 
 ers of the constitution; and if 
 such be the construction finally 
 given to it by this court, it must 
 necessarily produce great public 
 Inconvenience, and at the same 
 time fail to accomplish one of the 
 great objects of the framers of the 
 constitution; that is, a perfect 
 equality in the rights and privi- 
 leges of the citizens of the differ- 
 ent states; not only in the laws of 
 the general government, but in the 
 mode of administering them. . That 
 equality does not exist, if the com- 
 merce on the lakes and on the 
 navigable waters of the west are 
 denied the benefits of the same 
 courts and the same jurisdiction 
 for its protection which the con- 
 stitution secures to the states bor- 
 dering on the Atlantic. 
 
 "The only objection made to 
 
420 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 525 
 
 And now, by the settled decisions of the supreme court, the 
 public navigable waters of the United States, within the mean- 
 ing of the constitutional grant of the admiralty and maritime 
 jurisdiction, in contradistinction from the navigable waters of 
 the states, are defined to be those creeks, rivers, inlets, bays, 
 ports, harbors, havens, lakes and other waters, which are 
 navigable in fact, and which in their ordinary condition by 
 themselves, or by uniting with other waters, form a continuous 
 highway over which commerce is, or may be carried on with 
 other states or foreign countries, in the customary modes in 
 which such commerce is conducted by water.^^ 
 
 § 525. Same — Portage and artificial improvements. — The 
 character of the public navigable rivers of the United States 
 is not affected by the fact that the navigability of the river is 
 interrupted by rapids and falls over which portages are re- 
 
 this jurisdiction is that tliere is no 
 tide in the lalies or waters con- 
 necting them; and it is said that 
 the admiralty and maritime juris- 
 diction, as known and understood 
 in England and this country at the 
 time the constitution was adopted, 
 was confined to ths ebb and flow 
 of the tide. 
 
 "Now, there is certainly nothing 
 in the ebb and flow of the tide that 
 makes the water peculiarly suit- 
 able for the admiralty jurisdic- 
 tion, nor anything in the absence 
 of a tide that renders it unfit. 
 If it is a public navigable water, 
 on which commerce is carried 
 on between different states or na- 
 tions, the reason for the jurisdic- 
 tion is precisely the same. And if 
 a distinction is made on that ac- 
 count, it is merely arbitrary, with- 
 out any foundation in reason; and, 
 indeed, would seem to be inconsis- 
 tent with it." 
 
 41 Fretz V. Bull, 12 How. 466 (13: 
 1068) ; The Magnolia, 20 How. 
 296 (15:909); Nelson v. Leland, 22 
 
 How. 48 (16:269); The Propeller 
 Commerce, 1 Black, 574 (17:107); 
 The Hine v. Trevor, 4 "Wall. 555 
 (18:451); The Belfast, 7 Wall. 624 
 (19:266); The Eagle, 8 Wall. 15 
 (19:365); The Daniel Ball, 10 
 Wall. 557 (19:999); The Montello, 
 20 Wall. 430 (22:319); Ex parte 
 Boyer, 109 U. S. 629 (27:1056); 
 Ex parte Garnett, 141 U. S. 1-18 
 (35:631); Perry v. Haines, 191 U. 
 S. 17-55 (48:73). 
 
 42 The Genesee Chief, 12 How. 
 443 (13:1058); Fretz v. Bull, 12 
 How. 466 (13:1068); The Mag- 
 nolia, 20 How. 296 (15:909); Nel- 
 son V. Leland, 22 How. 48 (16: 
 296) ; The Propeller Commerce, 1 
 Black, 574 (17:107); The Belfast, 
 
 7 Wall. 624 (19:266); The Eagle, 
 
 8 Wall. 15 (19:365); The Daniel 
 Ball, 10 Wall. 557 (19:999); The 
 Montello, 20 Wall. 430 (22:391); 
 Bx parte Boyer, 109 V. S. 629 (27: 
 1056); Bx parte Garnett, 141 TJ. S, 
 1-18 (35:631); Perry v. Halnes„ 
 191 U. S. 17-55 (48:73). 
 
§ 527 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 421 
 
 quired to be made, nor by the fact that the river may have 
 been made navigable by artificial improvements.^^ 
 
 § 526. Same — Navigable river flowing wholly within the ter- 
 ritorial limits of one state. — ^A river flowing wholly within the 
 territorial limits of one state, and which is navigable in fact, 
 and, by its connection or junction with other waters, forms a 
 part of a continuous highway over which commerce is or may 
 be carried on with other states or foreign countries, in the 
 customary modes in which such commerce is conducted by 
 water, is a public navigable river of the United States, and is 
 subject to the admiralty and maritime jurisdiction vested in 
 the general government by the federal constitution; ** and that 
 jurisdiction embraces marine torts committed, and marine eon- 
 tracts performed or to be performed upon such river in a voy- 
 age or voyages wholly between ports and places within the 
 state in which the river flows, the admiralty jurisdiction being 
 wholly independent of the power of congress to regulate inter- 
 state and foreign commerce.*^ 
 
 § 527. Same — Same — Illustrations — The Alabama river. — 
 The Alabama river, which flows wholly within the state of Ala- 
 bama, falls into the Mobile river fifty miles above tide water, 
 is navigable from the sea, and is, therefore, a public navigable 
 river of the United States, and subject to the admiralty and 
 maritime jurisdiction of the national judiciary.*^ The case 
 cited was a marine tort — a collision between two steamboats — 
 on the river in the county of Wilcox in that state. A libel was 
 filed by the owner of the boat which was injured in the dis- 
 trict court of the United States for the middle district of Ala- 
 bama to recover damages resulting from the collision. The re- 
 spondents objected to the jurisdiction of the court upon two 
 groundsi, viz. : (1) That the collision occurred within the body 
 of a county, and (2) it occurred above tide water. The objec- 
 tion to the jurisdiction was sustained by the court and the libel 
 
 *3The Montello, 20 Wall. 430 Ball, 10 Wall. 557 (19:999); The 
 
 (22:391); Green Bay & Mississippi Montello, 20 Wall. 430 (22:391). 
 
 Canal Company v. Patten Paper *5 The Belfast, 7 Wall. 624 (19: 
 
 Company, 172 IT. S. 58, 82 (43: 2G6) ; The Propeller Commerce, 1 
 
 364). Black, 574 (17:107). 
 
 44 The Magnolia, 20 How. 296 to The Magnolia, 20 How. 296 
 
 (15:909); Nelson v. Leland, 22 (15:909). 
 How. 48 (16:209); The Daniel 
 
422 FEDERAL PEOCEDURE AT LAW. § 528 
 
 dismissed, but the reason of its judgment was not disclosed; 
 but upon appeal the supreme court reversed the decree of the 
 lower court and upheld the jurisdiction, and pointed out the fact 
 that both questions raised by the respondent had been fore- 
 closed by the previous adjudications of the court, and laid down 
 the proposition that the ninth section of the original judiciary 
 act vested in the district courts of the United States admiralty 
 and maritime jurisdiction over the navigable rivers of the United 
 States, and that no further legislation was necessary after the 
 decision in the Genesee Chief to complete that jurisdiction in 
 those courts.*^ 
 
 § 528. Same — Same — Same — The Yazoo river in the state of 
 Mississippi. — The Yazoo river which flows wholly within the 
 state of Mississippi, falling into the Mississippi river twelve 
 miles above Vicksburg, forms a part of a continuous highway, 
 upon which commerce may be carried on between that state 
 and other states and foreign countries, and is a public naviga- 
 ble river subject to the admiralty jurisdiction. ** In the case 
 cited, decided by the supreme court of the United States, in 
 the year 1860, it was held that a collision occurring on the Ya- 
 zoo river between a flat boat laden with cotton bales destined 
 to New Orleans, Louisiana, while descending the river, and a 
 steamboat ascending it, in which the former was wrecked and 
 its cargo greatly damaged and a part of it lost, was a marine 
 tort, justiciable in the district court of the United States for 
 the eastern district of Louisiana, sitting in admiralty, upon a 
 libel in rem there flled, the offending steamboat having been 
 found and arrested in that district.*^ 
 
 « Magnolia, supra, citing Waring as late as 1891 in Ex Parte Gar- 
 
 V. Clark, 5 How. 441 as having de- nett, 141 U. S. 1-18 (35:631). It has 
 
 cided that the admiralty courts been cited with approval In the 
 
 have jurisdiction over torts com- following cases also: The Sarah 
 
 mitted on navigable waters within Jane, I Low. 204, Fed. Gas. 12,349; 
 
 the body of a county, and the Walters v. Mollis Dozier, 24 
 
 Genesee Chief to the point that Iowa, 197, S. C. 95 Am. Dec. 725; 
 
 the ebb and flow of the tide is not Smith v. United States, 1 Wash. 
 
 the test of admiralty jurisdiction Ter. 268; Steamboat Cheeseman v. 
 
 in this country. Two Perry-Boats. 2 Bond, 373, Fed. 
 
 48 Nelson v. Leland, 22 How. 48 Cas. 2,633; The Propeller Com- 
 
 (16:269). merce, 1 Black, 581 (17:110); The 
 
 40 Nelson v. Leland, supra. Maggie Hammond, 9 Wall. 457 
 
 This case was cited with ap- (19:780). 
 proval by the U. S. supreme court 
 
§ 529. ADMIRALTY JURISDICTION OP DISTRICT COURTS. 423 
 
 § 529. Same — Same — Same — Grand river in the state of 
 Michigan. — Grand river flows wholly within the territorial lim- 
 its of the state of Michigan, falling into Lake Michigan at 
 Grand Haven, and is navigable in fact, capable of bearing a 
 steamer of one hundred and twenty-three tons burden, laden 
 with merchandise and passengers, as far as Grand Rapids, a 
 distance of forty miles from its mouth, and by its junction with 
 the lake it forms a continued highway for commerce, both with 
 other states and foreign countries; and in a leading case it was 
 held that this river is a public navigable river of the United 
 States, subject to the admiralty jurisdiction, and that a steamer 
 in its navigation, between the cities of Grand Rapids and Grand 
 Haven, and in the transportation of passengers and merchandise, 
 a portion of the merchandise transported being destined to 
 places in other states or coming from places without the state, 
 but the steamer not running in connection with or in continu- 
 ation of any line of steamers or other vessels, or any railway 
 line leading to or from another state, was subject to the laws of 
 the United States with regard to enrollment, license and in- 
 spection of vessels, and liable to be proceeded against in ad- 
 miralty for a failure to comply with such laws.**" 
 
 50 The Daniel Ball, 10 Wall. 557, gable water there signify substan- 
 
 566 (19:999). tially the same thing. But in this 
 
 The language in the opinion In country the case is widely differ- 
 
 the case here cited, more clearly ent. Some of our rivers are as 
 
 and lucidly, perhaps, defines the navigable for many hundreds of 
 
 navigable waters of the United miles above as they are below the 
 
 States, than the language of any limits of tide water, and some of 
 
 other opinion of the court. Field. them are navigable for great dis- 
 
 Justice, delivering the opinion of tances by large vessels, which are 
 
 the court said: not even affected by the tide at 
 
 "The doctrine of the common any point during their entire 
 law. as to the navigability of wa- length. * * * a. different test 
 ters has no application in this must, therefore, be applied to de- 
 country. Here the ebb and flow termine the navigability of our 
 of the tide do not constitute the rivers, and that Is found in their 
 usual test, as in England, or any navigable capacity. Those rivers 
 test at all as to the navigability of must be regarded as public navi- 
 waters. There no waters are navi- gable rivers in law which are navi- 
 gable in fact, or at .least to any gable in fact. And they are navl- 
 considerable extent, which are not gable in fact when they are used, 
 subject to the tide, and from this or are susceptible of being used, 
 circumstance tide water and navi- in their ordinary condition, as 
 
424 FEDERAL PROCEDURE AT LAW. § 530 
 
 § 530. Same — Same — Same — Fox river in the state of Wis- 
 consin. — The Fox river, whose flow is wholly within the terri- 
 torial limits of the state of Wisconsin, has its source near Por- 
 tage city, Wisconsin, and flows in a northeasterly direction, 
 through Lake Winnebago into Green Bay, and thence into Lake 
 Michigan. By means of a canal of a mile and a half in length, 
 it is connected at Portage city with the Wisconsin river, which 
 empties into the Mississippi. There are several rapids and 
 falls in the river, but the obstructions caused by them have 
 been removed by artificial means, and for many years there has 
 been uninterrupted navigation by steam vessels of considerable 
 capacity from the Mississippi river, through the Wisconsin and 
 Fox rivers, to Lake Michigan, and thence to the St. Lawrence, 
 engaged in the transportation of passengers and merchandise. 
 Without the improvements by locks, dams and canals. Fox 
 river could not have been navigated by steam boats through- 
 out its entire length. It, however, in connection with the Wis- 
 consin river, formed one of the earliest and most important 
 channels of communication between the Upper Mississippi and 
 the Great Lakes. Before the improvment of the river, frequent 
 portages were necessary in its navigation. It was held in a 
 case decided by the supreme court in 1874, that Fox river is a 
 navigable river, although made so by artificial means and im- 
 provements, and that a steamer navigating it is subject to the 
 laws of the United States with regard to the enrollment and 
 license of vessels, and is liable to be proceeded against in ad- 
 miralty for non-compliance with such laws.^^ 
 
 § 531. Same — Canals. — A canal, though lying and situated 
 wholly within the territorial limits of one state, which forms 
 a part of a continuous highway for commerce between port^ 
 
 highways of commerce, over which highway over which commerce is 
 
 trade and travel are or may be or may be carried on with other 
 
 conducted in the customary modes states or foreign countries in the 
 
 of trade and travel on water. And customary modes in which such 
 
 they constitute navigable waters commerce Is conducted by water." 
 
 of the United States within the The language of this opinion has 
 
 meaning of the acts of congress, been recently quoted and re-af- 
 
 In contradistinction from the navl- firmed by the supreme court, 
 
 gable waters of the states, when Perry v. Haines, 191 U. S. 17-55 
 
 they form in their ordinary condi- (48:73). 
 
 tion by themselves, or by uniting 5i The Montello, 20 Wall. 430 
 
 with other waters, a continued (22:391). 
 
§ 532 
 
 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 
 
 425 
 
 in different states, and with foreign countries, by its eonnee- 
 iion with other waters, is a navigable water of the United 
 States, and subject to the admiralty jurisdiction. °^ 
 
 § 532. Same — The admiralty jurisdiction not controlled by 
 the power to regulate commerce. — The judicial power vested in 
 the general government over causes of admiralty and maritime 
 jurisdiction is not controlled by nor dependent upon the power 
 vested in congress to regulate commerce among the several 
 states and with foreign nations ; the judicial power and the 
 commercial power are independent substantive powers, con- 
 ferred in the constitution by separate and distinct grants, and 
 
 52 Perry v. Haines, 191 TJ. S. 17- 
 55 (48:73); Ex parte Boyer, 109 
 U. S. 629 (27:1056); The Avon, 
 Brown Adm. 170, Fed. Cas. No. 680. 
 
 In Perry v. Haines, supra, 
 Brown, Justice, delivering tlie 
 opinion of the court, and holding 
 that the Erie Canal, though 
 wholly within the state of New 
 York, is, by connecting Lake Brie 
 with the Hudson river, a great 
 highway of commerce between 
 ports in different states and for- 
 eign countries, a navigable water 
 of the United States, and subject 
 to the admiralty jurisdiction, said: 
 
 "The only distinction between 
 canals and other navigable waters 
 is that they are rendered naviga- 
 ble by artificial means, and some- 
 times, though by no means always, 
 are wholly within the limits of a 
 particular state. We fail to see, 
 however, that this creates any 
 distinction in principle. They 
 are usually constructed to connect 
 waters navigable by nature, and to 
 avoid the portage of property from 
 one navigable lake or river to an- 
 other, or to improve or deepen a 
 natural channel; and they are us- 
 ually navigated by the same ves- 
 sels which ply between the natu- 
 rally navigable waters, at either 
 end of the canal. Examples of 
 
 these are the St. Clair Ship Canal, 
 connecting St. Clair river with the 
 lake of the same name; the St. 
 Mary's Canal, connecting the wa- 
 ters of Lake Superior with those of 
 Lake Huron; the Illinois & Michi- 
 gan canal, connecting the waters 
 of Lake Michigan with the Missis- 
 sippi river; the Welland Canal, be- 
 tween Lake Ontario and Lake 
 Brie; the Suez Canal, between the 
 Mediterranean and the Red Sea; 
 The Great North Holland Canal, 
 connecting Amsterdam directly 
 with the German ocean; and the 
 Erie Canal, connecting Lake Erie 
 and the Hudson River. Indeed, 
 most of the harbors upon the lakes 
 and the Atlantic coast are made 
 accessible by canals wholly arti- 
 fical, or by an artificial channel 
 broadening and deepening their 
 natural approaches. Can it be pos- 
 sible that a cause of action which 
 would be maritime, if occurring 
 upon those connected waters, 
 would cease to be maritime if 
 arising upon the connecting wa- 
 ters? Must a collision which would 
 give rise to a suit in admiralty if 
 occurring upon Lake Ontario, or 
 Lake Brie, be prosecuted at com- 
 mon law, if happening upon the 
 Welland Canal?" 
 
426 FEDERAL PROCEDURE AT LAW. § 533 
 
 vested in separate and distinct co-ordinate branches of the 
 government. The admiralty jurisdiction cannot be controlled 
 by nor be made to depend upon regulations of commerce. It 
 is wholly unaffected by the character of commerce engaged 
 in by the vessels involved. The navigability of the waters be- 
 ing established, and it being shown that they are public navi- 
 gable waters of the United States, then so far as concerns the 
 admiralty jurisdiction over causes of action arising upon such 
 Watera out of marine torts or maritime contracts, it is wholly 
 immaterial whether the vessels involved are engaged in purely 
 local commerce, or in commerce among the states or with for- 
 eign nations."' In the case af a marine tort arising out of a col- 
 lision, it makes no difference as to the jurisdiction that, at the 
 time of the collision one of the vessels was on a voyage from 
 one place to another in the same state ; '^^ and in a suit upon 
 a marine contract for the transportation of merchandise the 
 jurisdiction of the court is wholly unaffected by the fact that, 
 under the contract the place and port of shipment and the 
 place and port of destination are in one and the same state."" 
 § 533. Same — What are navigable waters is a judicial ques- 
 tion. — The question as to what are public navigable waters of 
 the United States, and embraced within the scope of the ad- 
 miralty and maritime jurisdiction, as l<nown and understood 
 in the United States when the constitution was adopted, is a 
 judicial question, to be determined in the last resort by the 
 federal supreme (?ourt. As shown by the judicial history of 
 the country, it has always been treated as a judicial question. 
 By the judiciary, the common law rule making the ebb and 
 flow of the tide the test of navigability and admiralty was first 
 adopted; and by the judiciary that rule was afterwards aban- 
 doned and repudiated, and the modem rule of navigability 
 in fact adopted as the test of jurisdiction, and applied in the 
 actual adjudication of cases to different waters, such as the 
 
 53 The Genesee Chief, 12 How. Black, 574 (17:107); Ex parte 
 
 443 (13:1058); The Propeller Com- Boyer, 109 U. S. 629 (27:105G). 
 
 merce, 1 Black, 574 (17:107); The 06 The Belfast, 7 "Wall. 624 (19: 
 
 Belfast, 7 Wall. 624 (19:266); Ex 266); Perry v. Haines, 191 U. S. 
 
 parte Boyer, 109 U. S. 629 (27: 17-55 (48:73); Re Garnett, 141 U. 
 
 1056); Perry v. Haines, 191 II. S. S. 1 (35:631); The B. M. McChes- 
 
 17-55 (48:73). eney, 8 Ben. 150, Fed. Cas. No. 
 
 154 The Propeller Commerce, 1 4,463. 
 
§ 535 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 427 
 
 Grand river in Michigan, the Fox river in "Wisconsin, the Illi- 
 nois and Michigan canal, which is wholly within the state of 
 Illinois, and the Erie canal which is wholly within the state of 
 New York. The principles of the constitution and judicial 
 practice and precedents support the proposition that navigabil- 
 ity and jurisdiction are exclusively a judicial question. Con- 
 gress has no power to determine that question so as to bind 
 the judiciary .°° 
 
 § 534. Rule defining navigable waters of the state. — If a 
 river is not of itself a highway for commerce with other states 
 or foreign countries, or does not form such highway by its con- 
 nection with other waters, and is only navigable between dif- 
 ferent places within the state, then it is not a navigable water 
 of the United States, but only a navigable water of the state. ^'^ 
 
 § 535. The constitutional grant of judicial power over ad- 
 miralty and maritime causes did not operate as a cession of 
 navigable waters. — The constitutional grant to the federal gov- 
 ernment of judicial power over "all cases of admiralty and 
 maritime jurisdiction" did not operate as a cession to that 
 government of the public navigable waters situated within the 
 limits of the states, nor of .general legislative jurisdiction over 
 those waters; but, subject to the paramount authority of the 
 general government to exercise full and complete admiralty 
 and maritime jurisdiction and to regulate foreign and inter- 
 state commerce, the states, each respectively, retains munici- 
 pal sovereignty and jurisdiction over all public navigable 
 waters within its territorial limits, including tide waters, ex- 
 tending one marine league from the seashore at low water 
 mark into the sea.°* 
 
 56 The Genesee Chief, 12 How. proval in Perry v. Haines, 191 V. 
 
 443 (13:1058); Fretz v. Bull, 12 S. 17-55 (48:73); Brown, Justice, 
 
 How. 4GG (13:1068); The Magno- delivering the opinion of the court, 
 
 lia, 20 How. 296 (15:909); The saying: "It Is not intended here 
 
 Daniel Ball, 10 Wall. 557 (19:999); to Intimate that, if the waters. 
 
 The Montello, 20 Wall. 430 (22: though navagable, are wholly ter- 
 
 391) ; Ex parte Boyer, 109 U. S. ritorial and used only for local 
 
 629 (27: 1056); Perry v. Haines, traflSc — such, for Instance, as the 
 
 191 V. S. 17, 55 (48:73); The interior lakes of the state of New 
 
 Thomas Jefferson, 10 Wheat. 428 York — they are to be considered as 
 
 (6:358). navigable waters of the United 
 
 67 The Montello, 11 Wall. 411 States." 
 (20:191), cited arguendo with ap- ss United States v. Bevans, 3 
 
428 FEDERAL PROCEDURE AT LAW. § 538 
 
 § 536. Criminal jurisdiction in admiralty. — The courts of 
 the United States, merely by the grant of judicial power over 
 causes of admiralty and maritime jurisdiction, and in the ab- 
 sence of appropriate legislation by congress, have no criminal 
 jurisdiction in admiralty, the criminal jurisdiction of the fed- 
 eral courts being derived wholly from the statutes of the 
 United States enacted in the execution of some power granted 
 by the constitution ; ^^ but congress has enacted a criminal ad- 
 miralty code, the provisions of which are contained in the re- 
 vised statutes here cited, and to which the reader is referred."" 
 
 § 537. History of federal legislation vesting admiralty jur- 
 isdiction — Ninth section of the original judiciary act. — The 
 ninth section of the original judiciary act, which defined the 
 jurisdiction of the district courts, contains, among other pro- 
 visions, the following: 
 
 "And shall also have exclusive original cognizance of all 
 ■civil causes of admiralty and maritime jiirisdiction, including 
 all seizures under laws of impost, navigation or trade of the 
 United States, where the seizures are made on waters which 
 are navigable from the sea by vessels of ten or more tons bur- 
 then, within their respective districts, as well as upon the high 
 seas, saving to suitors in all cases the, right of a common law 
 remedy where the common law is competent to give it. ' ' "^ 
 
 § 538. Same — Same — Seizures upon water. — When that part 
 of the ninth section of the judiciary act in regard to seizures — 
 ^'including all seizures under laws of impost, navigation or 
 trade of the United States, where the seizures are made on 
 waters which are navigable from the sea by vessels of ten or 
 more tons burthen, within their respective districts, as well 
 
 Wheat. 336-391 (4:404); Manches- Ex parte Byers, 32 Fed. 405; 
 
 ter V. Commonwealth of Massachu- United States v. Peterson, 64 Fed. 
 
 setts, 139 U. S. 240, 266 (35:159), 147; Commonwealth v. Peters, 
 
 affirming S. C. 152 Mass. 230-246, 12 Met. 393. 
 
 « L. R. A. 236, 25 N. B. 118, 23 sou. S. Rev. Stat. Title LXX, 
 
 Am. St. R. 820-836, and note 837- ch. 3, sees. 5339-5391, 3 U. S. Comp. 
 
 S41; McCready v. Virginia, 94 U. Stat. 1901, pp. 3625-3653; 3 Fed. 
 
 S. 391 (24:248); Smith v. Mary- Stat. Anno. 231-237. 
 
 land, 18 How. 74 (15:269). ei 1 tJ. S. Stat, 'at L. ch. 20, pp. 
 
 50 United States v. Bevans, 3 73-79 ; 2 Bates Fed. Eq. Proc. ap- 
 
 Wheat. 336-391 (4:404); Manches- pendix II, pp. 907-926, where the 
 
 ter V. Commonwealth of Massachu- origiijal juaiciary act September 
 
 setts, 139 U. S. 240, 260 C35:159); 24, 1789, is reproduced In full. 
 
§ 539 ADMIRALTY JUEISDICTION OF DISTRICT COURTS. 429' 
 
 as upoii the high seas" — first came under judicial consideration 
 it was contended that such seizures were not, and were not in- 
 tended by congress to be, within the admiralty and maritime- 
 jurisdiction of the court, but were cognizable by it on its com- 
 mon law side only, and that the parties were entitled to a trial 
 as at common law by a common law jury; but that contention 
 was overruled by the court, and such seizures were held to be 
 civil causes of admiralty and maritime jurisdiction, and were tO' 
 be tried by the court without a jury."^ 
 
 § 539. Same — Act of February 26, 1845— Pounded in ju- 
 dicial mistake. — As a result of the decision of the supreme 
 court, restricting the admiralty and maritime jurisdiction tO' 
 the ebb and flow of the tide,"^ congress, for the relief of navi- 
 gation and commerce upon the great lakes, which are, in fact,, 
 inland seas, but not affected by the tide,"* enacted the statute 
 of February 26, 1845, entitled "an act extending the jurisdic- 
 tion of the district courts to certain eases upon the lakes and 
 navigable waters connecting the same. ' ' *^ 
 
 This statute, in substance, conferred upon the district courts 
 the same jurisdiction in matters of contract and tort concern- 
 ing steamboats and other vessels of twenty tons burden and 
 iipwards, enrolled and licensed for the coasting trade, em- 
 ployed in commerce and navigation between ports in different 
 states and territories upon the lakes and navigable waters con- 
 necting them, as was then exercised by said courts in eases of 
 like steamboats and vessels, employed in like navigation and 
 ".ommeree upon the high seas, or tide waters within the ad- 
 n?iralty and maritime jurisdiction of the United States; and 
 it was directed that in suits arising under the act the regular 
 admiralty procedure should be followed and that the mari- 
 time law should, so far as applicable, constitute the rule of de- 
 cision in such suits, saving to the parties the right of trial by 
 jury of all facts put in issue in such suits, when required by 
 either party, and saving also to the parties the right of a con- 
 
 62 United States v. La Vengance, 63 The Thomas Jefferson, 10 
 
 3 Dall. 397 (1:610); United States Wheat. 426 (6:358). 
 
 V. The Betsey, 4 Cranch, 443 (2: 6* The Genesee Chief, 12 How. 
 
 673); United States v. The Sally, 443-459 (13:1058). 
 
 2 Cranch, 406 (2:320); The Sam- 655 u. S. Stat, at L. ch. 22, pp. 
 
 uel, 1 Wheat. 9 (4:23) ; The Sarah, 726, 727. 
 8 Wheat. 391 (5:644). 
 
430 FEDEEiVL PROCEDURE AT LAW. § 541 
 
 current remedy at common law, where it was competent to give 
 it, and any concurrent remedy given by state laws. 
 
 It was in a case involving a construction of this statute, that 
 the court overruled its previous decisions restricting the ad- 
 miralty jurisdiction to the ebb and flow of the tide, and estab- 
 lishing the doctrine of navigability in fact as the test of admir- 
 alty and maritime jurisdiction, from which it appears that con- 
 gress was misled by the earlier decisions, and that the above- 
 mentioned statute was founded in judicial mistake. *° 
 
 § 540. Same — Same — Same — Obsolete legislation. — The ef- 
 fect of the decision in the Genesee chief ^' has been to establish 
 the doctrine that the words, "and shall also have exclusive or- 
 iginal cognizance of all causes of admiralty and maritime 
 jurisdiction," contained in the ninth section of the original 
 judiciary act were operative and effective to vest in the dis- 
 trict courts full and complete admiralty and maritime juris- 
 diction, not only upon the high seas and tide waters, but also 
 upon all the public navigable lakes and rivers of the United 
 States, without the aid of further words; and, therefore, as a 
 result of the above mentioned decision, the clause of the ninth 
 section of the original judiciary act in regard to seizures on 
 waters, and the whole of the act of February 26, 1845, with 
 the exception of the clause which gives to either party the right 
 of trial by jury when requested, have become obsolete and of 
 no effect,"^ and were, in the revision of the federal laws, omit- 
 ted from the maritime code.*" 
 
 § 541. The state courts have no admiralty jurisdiction. — 
 The state courts have no jurisdiction over admiralty and mari- 
 time causes. The jurisdiction of the federal courts over such 
 causes is exclusive of the state courts. To this rule there is 
 no exception. In a class of cases of admiralty jurisdiction 
 the state courts may furnish a common law remedy concurrent 
 with the remedy in admiralty; but there is a broad distinc- 
 tion between concurrent remedies and concurrent jurisdiction. 
 If the remedy furnished by the state court is essentially a 
 
 66 The Genesee Chief, supra. 7 Wall. 624-646 (19:266); Ex 
 
 67 12 How. 443-459 (13:1058). parte Boyer, 109 U. S. 629 (27: 
 88 The Eagle, 8 Wall. 15-26 (19: 1056). 
 
 365); The Hine v. Trevor, 4 Wall.' egtr. S. Rev. Stat. sec. 563, cl. 
 555 (18:451); The Magnolia, 20 S, and sec. 566; 4 Fed. Stat. Anno. 
 How. 296 (15:909); The Belfast, 220-233 and 236-237. 
 
§ 544 ADMIR^VLTY JURISDICTION OF DISTRICT COURTS. 431 
 
 proceeding in admiralty, it is an invasion of the exclusive jur- 
 isdiction of the federal courts, and cannot be maintained.'"' 
 
 § 542. Same — The states may create maritime liens, but 
 cannot confer on their own courts admiralty jurisdiction to 
 enforce them. — The several states may, by appropriate legisla- 
 tion, create maritime liens as a security for the performance 
 ■of maritime contracts, concerning domestic vessels, but they 
 cannot confer upon their courts jurisdiction in admiralty to 
 enforce such liens. A state may, by statute, create a lien for 
 repairs and necessary supplies made and furnished to a vessel 
 in her home port, or a port of the state to which she may be- 
 long ; ^^ but, the contract for such repairs and supplies, and 
 the lien given by the state statute to secure the performance of 
 the contract, both being maritime, can only be enforced by suit 
 in rem in the district courts of the United States in admiralty, 
 the state having no power to vest its courts with jurisdiction 
 over such causes.''^ 
 
 § 543. Same — Same — State cannot create lien on foreign 
 vessels. — The rule which allows a state to create a maritime 
 lien on vessels applies to domestic vessels only — that is, ves- 
 sels owned within the state; and the rule does not apply to 
 foreign vessels — that is, owned in other states or foreign coun- 
 tries." 
 
 § 544. Contract and tort the sources of admiralty and mari- 
 time jurisdiction — Exceptions. — Causes of admiralty and mari- 
 time jurisdiction, according to the usual classification, arise 
 either out of (1) maritime contracts or (2) marine torts.^* 
 
 70 The Moses Taylor, 4 Wall. 411 Pet. 324 (8:700); The St. Law- 
 CIS: 397); The Hine y. Treyor, 4 rence, 1 Black, 522 (17:108); The 
 Wall. 555 (18:451); The Belfast, Glide, 167 U. S. 606 (42:296). 
 
 7 Wall. 624-646 (19:266); The 72 The Glide, 167 U. S. 606 (42: 
 
 Glide, 167 U. S. G06-624 (42:296); 296); Perry y. Haines, 191 U. S. 
 
 Perry y. Haines, 191 U. S. 17-55 17-55 (48:73); The Moses Taylor, 
 
 (48:73); The Knapp Company v. 4 Wall. 411 (18:397) ; The Hine y. 
 
 McCaffrey, 177 U. S. 638-648 (44: Treyor, 4 Wall. 555 (18:451); The 
 
 921); The Lottawana, 21 Wall. Belfast, 7 Wall. 624 (19:266) ; The 
 
 558-609 (22:654); U. S. Rev. Stat. Lottawana, 21 Wall. 559 (22:654). 
 
 sec. 711, cl. 3, 1 U. S. Comp. Stat. 73 The Roanoke, 189 U. S. 185- 
 
 1901, p. 577, 4 Fed. Stat. Anno. p. 199 (47:770). 
 
 494. 7* The Belfast, 7 Wall. 624 (19: 
 
 71 The General Smith, 4 Wheat. 266). 
 438 (4:609); Pyroux v. Howard, 7 
 
432 FEDERAL PROCEDURE AT LAW. § 547 
 
 This classification is not, however, legally exact. There are 
 many cases in admiralty arising out of sources which are 
 neither contract nor tort. This is true in prize causes, in which 
 the seizure is made j^ire belli, and the adjudication is made ac- 
 cording to the laws of nations.''' And it is held by eminent 
 authority that salvage, jettison and general average are neither 
 matters of contract nor tort.''" Libels authorized to be filed 
 under the "Limited Liability Act," are prosecuted to obtain 
 a benefit secured to shipowners by law, and assert a right aris- 
 ing out of the law, and cannot be said to arise out of either 
 tort or contract.'^ 
 
 § 545. Maritime contracts. — The true criterion by which to 
 determine whether or not a contract is maritime, is the sub- 
 ject-matter of the contract, and the system of laws out of which 
 it arises and by which it is governed. If the contract pertains 
 solely to the business of marine commerce and navigation, and 
 arises out of, and is controlled by the maritime law, it is a 
 maritime contract.'^ 
 
 § 546. Same — Contract not maritime — Building ship. — ^A 
 contract for building a ship or other marine vessel or craft, 
 or for supphnng materials for its construction, is not a marine 
 contract, and, therefore, not within the admiralty jurisdiction ; 
 and the several states may, by appropriate legislation, create 
 liens to secure the performance of such contracts, and provide 
 remedies for the enforcement and foreclosure of such liens 
 through their own courts.'" 
 
 § 547. Same — Same — Mortgage of vessel. — ^An ordinary 
 mortgage of a vessel, whether made to secure the purchase 
 money upon a sale thereof, or to raise money for general pur- 
 poses, is not a maritime contract, and a court of admiralty, 
 therefore, has no jurisdiction of a libel to foreclose it; or to 
 
 75 Prize Cases, 2 Black, 635 (17: Taylor, 4 Wall. 411 (18:397); De 
 
 459). Lovio v. Bolt, 2 Gall. 398, Fed. Gas. 
 
 T6The Eagle, 8 Wall. 15 (19: No. 3,776. 
 
 365). '9 People's Ferry Go. v. Beers, 
 
 "Butler V. Steamship Co., 130 20 How. 393 (15:294); Roach v. 
 
 U. S. 527 (32:1017); Steamship Co. Chapman, 22 How. 129 (16:294); 
 
 V. Mount, 103 U. S. 239, 250 (26: Edwards v. Elliott, 21 Wall. 532 
 
 351) ; Admiralty Rules LIV-LVII. (22:487) ; Johnson v. Elevator Co., 
 
 78 Insurance Co. v. Dunham, 11 119 U. S. 388 (30:447); Sheppard v. 
 
 Wall. 1-30 (20:90); The Moses Steel, 43 N. Y. 52, 3 Am. Rep. 660. 
 
§ 548 ADMIRALTY JURISDICTION OP DISTRICT COURTS. 433. 
 
 assert either title or right of possession under it ; ^° but after 
 a vessel has been sold by the order of a court of admiralty 
 and the proceeds have been paid into the registry, the court 
 has jurisdiction, upon a petition of intervention, to pass upon, 
 the claim of the mortgagee and all other persons to the fund,, 
 and to determine the priority of the various claims, and' to or- 
 der distribution.*^ , 
 § 548. Same — Same — Same — Mortgage not made maritime 
 contract by the registry act. — The act *^ of congress of July 29, 
 1850, providing for recording bills of sale, mortgages, hy- 
 pothecations and conveyances of vessels, did not have the ef- 
 fect to convert such mortgages into maritime contracts. The 
 first section of that act, as carried into the Revised Statutes, is 
 as follows : 
 
 "No bill of sale, mortgage, hypothecation, or conveyance of 
 any vessel, or part of any vessel, of the United States, shall 
 be valid against any person other than the grantor or mort- 
 gagor, his heirs and devisees, and persons having actual notice 
 thereof; unless such bill of sale, mortgage, hypothecation or 
 conveyance is recorded in the office of the collector of customs 
 where such vessel is registered or enrolled. The lien by bot- 
 tomry on any vessel, created during her voyage, by a loan of 
 money or materials, necessary to repair or enable her to prose- 
 cute a voyage, shall not, however, lose its priority, or be in any 
 way affected by the provisions of this section." *' 
 
 The enactment is a mere registry act, intended to prevent 
 mortgages and other conveyances of vessels from having any 
 effect which they might have had before against persons other 
 than the grantor or mortgagor, and those claimng under him,, 
 or having actual notice thereof, unless recorded as therein pro- 
 vided; it manifests no intention to confer upon the mortgagee 
 any new right, or to make the mortgage a maritime contract, or 
 the lien thereby created a maritime lien, or to in any way inter- 
 so Bogart V. The John Jay, 17 v. Wall. 3 How. 568 (11:729); 
 How. 399 (15:95); Schuchardt v. Schuchardt v. Babbidge, 19 How. 
 Babbidge, 19 How. 239, 241 (15: 239 (15:625); Admiralty Rule 43. 
 625) ; Rea v. The Eclipse, 135 U. S. s2 9 U. S. Stat, at L. ch. 27, sec. 
 
 599, 608 (34:269). 1, p. 440. 
 
 81 The J. B. Rumbell, 148 U. S. ss U. S. Rev. Stat. sec. 4192; T 
 1, 21 (37:345); The Lottawana, 21 Fed. Stat. Anno. pp. 42-44. 
 Wall. 558, 582 (22:654); Andrews 
 
 28 
 
434 FEDERAL PEOCEDURE AT LAW. § 544a 
 
 fere with maritime contracts or liens or the priority thereof, or 
 with the jurisdicton and procedure in admiralty.** 
 
 § 549. Marine torts. — The test of admiralty jurisdiction 
 arising out of tort is locality. The tort must have been com- 
 mitted upon navigable waters,*^ and the fact that the tort 
 occurred upon navigable waters lying within the limits of an- 
 other sovereignty constitutes no ob.jeetion to the exercise 
 of the jurisdiction;^^ and, marine torts being in the nature of 
 trespasses upon the person or upon personal property, may be 
 prosecuted in admiralty in personam in any district where the 
 offending party can be served, or in rem wherever the offend- 
 ing thing is found within the jurisdiction of the court issuing 
 the process.*'^ 
 
 In a late case, the supreme court departed from the rule re- 
 quiring the tort, as a ground of jurisdiction, to be committed 
 on navigable waters, and held that the admiralty had jurisdic- 
 tion of a libel in rem against a British vessel for the negli- 
 gent destruction of a beacon, established by the government 
 as an aid to navigation, which stood fifteen or twenty feet from 
 the ^lobile river or bay, in water twelve or fifteen feet deep, 
 built on piles firmly driven into the bottom, and attached to 
 the realty and a part of it by the ordinary criteria of the com- 
 mon law.** 
 
 § 549a. Maritime liens — ^Defined. — One of the most import- 
 ant functions of the courts of admiralty is the enforcement of 
 maritime liens, by suits in rem, a judicial remedy not known 
 at the common law, but derived from the civil law.*" 
 - In an early case, the supreme court, in its opinion, judicially 
 defined maritime liens, and to that definition it has ever since 
 adhered without variableness or shadow of turning, and upon 
 
 8* The J. E. Rumbull, 148 tr. S. 1, so The Eagle, 8 Wall. 15 (19: 
 
 21 (37:345); The Lottawana, 21 305). 
 
 Wall. 558 (22:654). st The Propeller Commerce, 1 
 
 85 The Propeller Commerce, 1 Black, 514 (17:107) ; Nelson v. Le- 
 
 Black, 574 (17:107); The Eagle, 8 land, 22 How. 48 (16:269). 
 
 Wall. 15 (19:365) ; Ex parte Boyer, ss The Blackheath, 195 U. S. 361- 
 
 109 U. S. 629 (27:1057); Nelson v. 369 (49:236), overruling The Ply- 
 
 Leland, 22 How. 48 (16:269); The mouth, 3 Wall. 20 (18:125). 
 
 Magnolia, 20 How. 296 (15:909); 89 The Moses Taylor, 4 Wall. 411, 
 
 Packet Co. Y. Bridge Co., 6 Wall. 431 (18:397); The Hine v. Trevor, 
 
 2n, 216 (18:753). 4 Wall. 555, 572 (18:451). 
 
§ 550 ADMIRALTY JURISDICTION OP DISTRICT COURTS. 435 
 
 it has largely been built up the maritime law and jurisptu- 
 denee of this country. The definition is as follows : 
 
 "The maritime 'privilege' or lien is adopted from the civil 
 law, and imports a tacit hypothecation of the subject of it. It 
 is 'a jus in re,' without actual possession or any right of pos- 
 session. It accompanies the property into the hands of a hona 
 fide purchaser. It can be executed and divested only by a 
 proceeding in rem. This sort of proceeding against personal 
 property is unltnown to the common law, and is peculiar to the 
 process of the courts in admiralty. The foreign and other at- 
 tachments of property in the state courts, though by analogy 
 loosely termed proceedings in rem, are evidently not within 
 the category. But this privilege or lien, though adhering to 
 the vessel, is a secret one; it may operate to the prejudice of 
 general creditors and purchasers without notice ; it is, therefore, 
 'stricti juris,' and cannot be extended by construction, analogy 
 or inference. ' ' ^° 
 
 § 549b. Same — Difference between ma.ritime lien and com- 
 mon law lien. — A maritime lien, unlike a lien at common law, 
 exists without possession of the thing upon which it is as- 
 serted, either actual or constructive. The maritime lien, how- 
 ever, confers upon its holder such a right in the thing, that he 
 may, by a suit in rem, subject it to condemnation and sale to 
 satisfy his debt or damages. The lien travels with the thing 
 upon which it exists wherever that thing goes, and into whose- 
 soever hands it may pass. It can be made available only, by 
 the proceeding in rem.^^ 
 
 § 550. Same — The subjects of maritime liens. — The only sub- 
 jects of maritime liens are movable things engaged in nav- 
 igation, or things which are the subjects of commerce on the 
 high seas or other navigable waters; it may arise and exist 
 upon vessels, steamers and rafts, and upon goods and mer- 
 chandise carried upon them. But it cannbt arise upon any- 
 thing which is fixed and immovable like a wharf, a bridge 
 or real estate of any kind. Though bridges and wharves and 
 
 90 Vanderwater v. Mills, 19 How. Bridge Co., 6 Wall. 213, 216 (18. 
 
 82-92 (15:554), rule reaffirmed in 753); The J. E. Rumbell, 148 U. S. 
 
 The J. B. Rumbell, lls U. S. 1-21 1, 21 (37:345); The John G. Stev- 
 
 (37:345); The Glide, 167 U.S. 606- ens, 170 U. S. 113, 127 (42:969); 
 
 €24 (42:269). The Bold Buccleugh, 7 Moore P. 
 
 81 Packet Co. v. Rock Island C. C. 267. 
 
436 FEDERAL PEOCEDUEE AT LAW. § 553 
 
 other immovable structures may aid commerce bj- facilitating 
 intercourse on land or the discharge of cargoes, they are not 
 in any sense the subjects of maritime lien.'^ 
 
 § 551. Same — A maritime Hen is a present right of property. 
 It seems to be the settled law both in England and in this coun- 
 try, that- a maritime lien is a proprietary interest — a present 
 right of property — in the ship. The lienholder is a part owner 
 in interest of the ship.°^ It is said that, "in our law it is well 
 established that a maritime lien or privilege, constituting a 
 present right of property, jus in re, to be afterward enforced 
 in admiralty by process in rem, arises, not only from a collision 
 and for damages caused thereby, but also for necessary sup- 
 plies and repairs furnished to a vessel, whether under the gen- 
 eral maritime law in a foreign port, or according to a local 
 statute in her home port.^* 
 
 § 552. Same — Maritime liens arise out of both contract and 
 tort. — Maritime liens arise out of maritime contracts,"^ and 
 also out of marine torts."" A collision between two ships by 
 the negligence of one of them creates a maritime lien upon 
 or privilege in the oifending ship, for the damage done to the 
 other, which attaches at the time of the collision, and may be 
 enforced in admiralty by proceedings in rem against the of- 
 fending ship, even in the hands of a bona fide purchaser.*^ 
 
 § 553. Same — When lien is created. — The maritime lien is 
 created and arises and attaches to the subject thereof, just as 
 soon as the contract is made or the tort is committed, and be- 
 fore the institution of judicial proceedings to enforce it. The 
 lien is created as soon as the claim comes into existence. 
 
 92 Packet Co. v. Rock Island P. C. C. 267; The John G. Stevens, 
 Bridge Co., 6 Wall. 213, 216 (18: 170 U. S. 113, 127 (42:969). 
 753); The Alahama, 19 Fed. 546; 94 The John G. Stevens, 170 U.S. 
 The Alabama, 22 Fed. 450; The 113,127 (42:969). 
 
 F. & P. M. Co. No. 2, 33 Fed. 96 The J. E. Rumbell, 148 U. S. 
 
 514; Seabrook v. Raft, 40 Fed. 1, 21 (37:345); The Glide, 167 U. 
 
 598; The City of Pittsburg, 40 S. 606, 624 (42:296); Perry v. 
 
 Fed. 701; The Ottawa, Brown Haines, 191 U. S. 17, 55 (48:73). 
 
 Adm. 359, Fed. Cas. No. 10,616; "s The John G. Stevens, 170 U. S. 
 
 The Schooner Maud Webster, 8 113, 127 (42:969); The China, T 
 
 Ben. 533, Fed. Cas. 9,302. Wall. 53, 68 (19:67). 
 
 93 The Bold Buccleugh, 7 Moore 97 The John G. Stevens, 170 U. S. 
 
 113, 127 (42.969). 
 
§ 555 ADMIRALTY JURISDICTION OP DISTRICT COURTS. 437 
 
 whether arising out of tort or out of contract."^ But the law- 
 creates no lien on a vessel as a security for the performance of 
 a contract to transport a cargo, until some lawful contract of 
 affreightment is made, and a cargo shipped under it.'" 
 
 § 554. Same — Priority of maritime liens. — ^It is said that 
 seamen's wages are a sacred lien, and, as long as a plank of the 
 ship remains, the sailor is entitled as against all other persons 
 to the proceeds as a security for his wages.^ But, as a gen- 
 eral rule, other maritime liens have priority and are enforced 
 and paid in inverse order to that in which they accrue.^ 
 
 § 555. Same — Same — Lien arising out of collision takes 
 precedence over antecedent lien for supplies. — A maritime lien 
 upon a vessel for damages caused by her fault to another ves- 
 sel takes precedence of a maritime lien for supplies previously 
 furnished to the offending vessel. The collision, as soon as it 
 takes place, creates, as a security for the damages, a maritime 
 lien or privilege, jus in re, a proprietary interest in the offend- 
 ing ship, and which, when enforced by admiralty process in 
 rem, relates back to the time of the collision. The offending 
 ship is considered as herself the wrongdoer, and as herself 
 bound to make compensation for the wrong done. The owner 
 of the injured vessel is entitled to proceed in rem against the 
 offender, without regard to the question who may be her own- 
 ers, or to the division, the nature, or the extent of their interest 
 in her. With the relations of the owners of those interests, as 
 among themselves, the owner of the injured vessel has no con- 
 cern. All the interests existing at the time of the collision in 
 the offending vessel whether by way of part owneirship, of 
 mortgage, of bottomry bond, or of other maritime liens for re- 
 pairs or supplies, arising out of contract with the owners or 
 agents of the vessel, are parts of the vessel herself, and as such 
 are bound by and responsible for her wrongful acts. Any one 
 who has furnished necessary supplies to the vessel before the 
 collision, and has thereby acquired, under our law, a mari- 
 
 08 The John G. Stevens, 170 U. S. i Sheppard v. Taylor, 5 Pet. 675, 
 
 113, 127 (42:969) ; The J. E. Rum- 710 (8:269-282) ; Brown v. Lull, 2 
 
 bell, 148 U. S. 1, 21 (37:345). Sumn. 443, 452; Pitman v. Hooker, 
 
 89 Vanderwater v. Mills, 19 How. 3 Sumn. 50, 58, 3 Kent Com. 197. 
 
 82, 92 (15:554); Schooner Free- 2 The John G. Stevens, 170 U. S. 
 
 man v. Buckingham, 18 How. 188 113, 127 (42:096). 
 (18:341). 
 
438 FEDERAL PROCEDURE AT LAW. § 556 
 
 time lien or privilege in the vessel herself, is a part owner in 
 interest at the date of such collision, and the ship in which he 
 and others are interested is liable to the extent of its value at 
 that date for the injury done, without reference to his claim. 
 And a claim by a tow against her tug for damages caused by 
 negligent towage, by bringing the tow into collision with a 
 third vessel, is founded in tort, arising out of the duty imposed 
 by law, and independent of any contract made, or consideration 
 paid or to be paid for the towage ; and the claim for damages 
 in such ease is entitled to priority of payment over liens on 
 the tug for previous repairs and supplies.^ 
 
 § 556. Same — Same — Maritime lien for supplies takes pre- 
 cedence over prior mortgage. — A mortgage on a vessel, al- 
 though recorded in the office of the collector of customs where 
 such vessel is registered or enrolled, is not a maritime eon- 
 tract and creates no maritime lien; and a maritime lien, 
 whether created by the general maritime law for supplies or 
 repairs furnished to a vessel in a foreign port, or created by 
 the statute of a state for supplies and repairs furnished to a 
 vessel in her home port or in a port of the state to which she 
 belongs, takes precedence over a prior mortgage on the vessel.* 
 
 3 The John G. Stevens, 170 XJ. S. rests upon the furnishing of sup- 
 
 113, 127 (42:969); The Bold plies to the ship, on the credit of 
 
 Buccleugh, 7 Moore, P. C. C. 267. the ship herself, to preserve her ex- 
 
 i The J. E. Rumbell, 148 U. S. istence and secure her usefulness 
 
 1, 21 (37:345); Menge v. Madrid, for the benefit of all having any 
 
 40 Fed. 677; The Guiding Star, title or Interest in her. Each cre- 
 
 9 Fed. 521, S. C. 18 Fed. R. 263, ates a jus in re, a right of property 
 
 269. In the J. F: Rumbell, supra, in the vessel, existing independ- 
 
 Mr. Justice Gray, delivering the ently of possession, and arising 
 
 opinion of the court, said: as soon as the contract is made, 
 
 "According to the great preponder- and before the institution of judi- 
 
 ance of American authority, there- cial proceedings to enforce it. The 
 
 fore, as well as upon settled princi- contract in each case is maritime, 
 
 pies, the lien created by the statute and the lien which the law gives 
 
 of a state, for repairs or supplies to secure it is maritime in its na- 
 
 furnished to a vessel in her home ture, and is enforced in admiralty 
 
 port, has the like precedence over by reason of its maritime nature 
 
 a prior mortgage, that is accorded only. The mortgage, on the other 
 
 to a lien for repairs or supplies in hand. Is not a maritime contract, 
 
 a foreign port under the general and constitutes no maritime lien, 
 
 maritime law, as recognized and and the mortgagee can only share 
 
 adopted in the United States. Each in the proceeds in the registry af- 
 
§ 559 ADMIRALTY JURISDICTION OP DISTRICT COURTS. 439 
 
 § 557. Forms of actions or suits in admiralty. — There are 
 two forms of suits in admiralty, namely: (1) suits in rem,'' and 
 (2) suits in personam; " and the latter class is subdivided into 
 two classes — (1) suits in personam without foreign attachment, 
 and (2) suits in personam with foreign attachment.'' In some 
 cases, suits in rem and in personam may perhaps be joined in 
 one proceeding.^ 
 
 § 558. Same — Jurisdiction in rem based on maritime lien. 
 The only object of a suit in rem is to enforce, make available, 
 and carry into effect a maritime lien; it subserves no other 
 purpose. The lien and the proceeding in rem are, therefore, 
 correlative; where the former exists, the latter can be taken, 
 and not otherwise. A maritime lien is the foundation of the 
 proceeding in rem? 
 
 § 559. Same — Intervention pro interesse suo. — ^Auy person 
 having an interest in any proceeds in the registry of the court 
 of admiralty has the right, by petition and summary proceed- 
 ing, to intervene pro interesse suo for delivery thereof to him; 
 and this he may do, although he could not maintain an orig- 
 inal suit in admiralty against the property which produced the 
 fund, nor has a maritime lien on it. The mortgagee of a 
 vessel may maintain such an intervention to have the residue 
 of the proceeds of the vessel paid to him after all maritime 
 liens have been satisfied.^" 
 
 ter all maritime liens have been The Eagle, 8 Wall. 15 (19:365); Ex 
 
 satisfied. It would seem to follow parte Boyer, 109 U. S. 629 (27: 
 
 that any priority given by the stat- 1057) ; The Blackheath, 195 U. S. 
 
 ute of a state, or by decisions at 361, 369 (49:236); Admiralty Rules 
 
 common law or in equity, is imma- 12-19. 
 
 terial; and that the admiralty 6 Admiralty rule 2. 
 
 courts of the United States, enforc- ' Admiralty rule 2. 
 
 ing the lien because it is maritime s Admiralty rule 20; Barton v. 
 
 in its nature, arising upon a mari- Brown, 145 U. S. 335, 348 (36:727). 
 
 time contract, must give it the rank » Packet Co. v. Rock Island 
 
 to which it is entitled by the prin- Bridge, 6 Wall. 213, 216 (18:753); 
 
 ciples of the maritime and ad- Hatch v. The Steamboat Boston, 3 
 
 miralty law." Fed. R. 871. 
 
 5 The Genesee Chief, 12 How. 443 lo Admiralty rule 43 ; The Lotta- 
 
 (13:105S); The Magnolia, 20 How. wana, 21 Wall. 558, 609 (22:654); 
 
 296 (15:909); Nelson v. Leland, 22 Schuchardt v. Babbidge, 19 How. 
 
 How. 48 (16:269); The Propeller 239 (15:625); The J. E. Rumbell, 
 
 Commerce, 1 Black, 574 (17:107-); 148 U. S. 1, 21 (37:345). 
 
440 federal procedure at law. § 562 
 
 (6) The Exclusive Original Jurisdiction of the District 
 Courts of the United States in Admiralty and Mari- 
 time Causes. 
 
 § 560. Jurisdiction of civil causes in admiralty. — The several 
 district courts of the United States are vested vrith original 
 jurisdiction of all civil causes of admiralty and maritime juris- 
 diction; saving to suitors in all cases the right of a common- 
 law remedy, where the common law is competent to give it. 
 And this jurisdiction is exclusive of the state courts; and is 
 also exclusive of the circuit courts of the United States, except 
 in two specified classes of cases. '^'^ 
 
 § 561. Suits on maritime contracts. — The several district 
 courts of the United States have exclusive original jurisdiction 
 of all admiralty and maritime causes founded upon any mari- 
 time contract, saving to suitors in all cases the right of a com- 
 mon-law remedy, where the common law is competent to give 
 it. If the party elects to pursue his common law remedy, 
 he must prosecute his suit in the state court, or in the circuit 
 court of the United States, where that court has jurisdiction 
 under the federal judiciary acts ; but if the party elects to sue 
 in admiralty, the district court of the United States has ex- 
 clusive original jurisdiction.^^ 
 
 § 562. Suits based on marine torts. — The several district 
 courts of the United States have exclusive original jurisdiction 
 
 11 U. S. Rev. Stat. sec. 563, cl. 8 177 U. S. 638, 648 (44:921); The 
 and 9; TJ. S. Rev. Stat. sec. 629, cl. Oscoda, 66 Fed. R. 347; The Aca- 
 
 6 and 7; TJ. S. Rev. Stat, sec 711, cl. dea, Brown Adm. 73, Fed. Cas. No. 
 3; U. S. Rev. Stat. sec. 5308; 4 Fed. 24; Tbe Williams, Brown Adm. 208, 
 Stat. Anno. pp. 230-234, 247-248. Fed. Cas. No. 17,710; The Canal 
 
 12 U. S. Rev. Stat. sec. 563, cl. 8 Boat W. J. Walsh, 5 Ben. 72, Fed. 
 and sec 711; 4 Fed. Stat. Anno. pp. Cas. 17,922; Ex parte Easton, 95 
 220-233; The Moses Taylor, 4 Wall. U. S. 68, 78 (24:373); Ins. Co. v. 
 411 (18:397); The Belfast, 7 Wall. Dunham, 11 Wall. 1 (20:90); The 
 624 (19:266); The General Smith, Eddy, 5 Wall. 481 (18:486); More- 
 4 Wheat. 438 (4:609) ; The Planter, wood v. Enequist, 23 How. 491 (16: 
 
 7 Pet. 324 (8:700); The St. Law- 516); Andrews v. Wall. 3 How. 568 
 rence, 1 Black, 522 (17:180); The (11:729); Sheppard v. Taylor, 5 
 Lottawana, 21 Wall. 559 (22:654) ; Pet. 675 (8:269) ; McKlnlay v. Nor- 
 The Glide, 167 U. S. 606 (42:296); rish, 21 How. 343 (16:100); The 
 De Lovio v. Boit, 2 Gall. 398, Fed. Resolute, 168 U. S. 437 (42:533); 
 Cas. No. 3,776; Perry v. Haines, The Grapeshot, 9 Wall. 129, 14R 
 191 U. S. 17, 55 (48:73); The (19:651). 
 
 Knapp, Stout & Co. v. McCaffrey, 
 
§ 564 ADMIRALTY JUEISDICTION OF DISTRICT COURTS. 441 
 
 of all admiralty and maritime causes based on marine torts, 
 saving, as in eases founded on maritime contracts, to suitors 
 in all cases the right of a common-law remedy, where the com- 
 mon law is competent to give it. If the party elects to pursue 
 his common-law remedy, he must prosecute his suit in the 
 state court, or in the circuit court of the United States, where 
 that court has jurisdiction under the federal judiciary acts; 
 but if the party elects to sue in admiralty, the district court 
 of the United States has exclusive original jurisdiction.^' 
 
 § 563. Same — Immaterial that the tort is committed within 
 the waters of a foreign country. — The admiralty jurisdiction 
 of the district courts of the United States over marine torts is 
 not taken away by the fact that the cause of action arose in 
 the waters of a foreign port. That circumstance is immaterial. 
 While in some eases decided by the supreme court it is said 
 that the district courts, as courts of admiralty, have jurisdic- 
 tion of all torts arising upon the high seas, or upon the navi- 
 gable waters of the United States, yet the connection in which 
 those words are found indicates that they were not used re- 
 strictively; and the law is entirely well settled, both in Eng- 
 land and in this country, that marine torts originating upon 
 navigable waters within the territorial limits of a foreign 
 country may be the subject of a suit in admiralty in a domestic 
 court.'* 
 
 § 564. Suits to enforce maritime liens. — The several district 
 courts of the United States are vested with exclusive original 
 jurisdiction of all admiralty and maritime suits in rem to en- 
 force maritime liens, whether such liens arise out of contracts 
 
 13 U. S. Rev. Stat. sec. 563, cl. 8 167 (20:382); The Atlas, 93 U. S. 
 
 and sec. 711; 4 Fed. Stat. Anno. pp. 302 (23:863); The L. P. Dayton, 
 
 220-233; The Hine v. Trevor, 4 120 U. S. 337 (30:669); The E. A. 
 
 Wall. 555 (18:451); The Genesee Packer, 140 U. S. 360 (35:453); 
 
 Chief, 12 How. 443 (13:1058); The Avon, Brown Adm. 170, Fed. 
 
 Pretz V. Bull, 12 How. 466 (13: Cas. No. 680; The Thomas Carroll, 
 
 1068); The Magnolia, 20 How. 296 23 Fed. 912; Panama Railroad 
 
 (15:909); Nelson v. Leland, 22 Co. v. Napier Shipping Co., 166 U. 
 
 How. 48 (16:269); The Propeller S. 280, 290 (41:1004). 
 
 Commerce, 1 Black, 574 (17.107); i-i Panama Railroad Co. v. Napier 
 
 The Eagle, 8 Wall. 15 (19:365); Ex Shipping Co., 166 U. S. 280, 290 
 
 parte Boyer, 109 U. S. 629 (27: (41:1004); The Eagle, 8 Wall. 15, 
 
 1056) ; The Quickstep, 9 Wall. 665 26 (19.365) ; The Avon, Brown 
 
 (19:767); The Syracuse, 12 Wall. Adm. 170; The Diana, 1 Lush. 539. 
 
442 . FEDERAL, PEOCEDUEE AT LAW. § 566 
 
 or torts or by operation of law, and whether created by the gen- 
 eral maritime law or the statute of a state. ^^ 
 
 § 565. The ship and the owner not to be joined in the same 
 libel. — In suits in admiralty by material-men for supplies or 
 repairs or other necessaries, for mariners' wages, for pilotage,, 
 for damages by collision, for sea batteries, or suits founded 
 on maritime hypothecation of ship or freight by the master, 
 or suits on bottomry bonds, or for salvage, as defined in the- 
 admiralty rules, the ship and the owner cannot be joined in 
 the same libel.^" Admiralty rules, twelve to twenty inclusive, 
 were intended to prescribe a remedy appropriate to each class- 
 of cases in admiralty, allowing in certain cases a joinder of 
 ship and .freight, or ship and master, or alternative actions, 
 against the ship, master, or owner alone. In no case, however, 
 under these rules, except in possessory suits, can the ship and 
 owner be joined in the same libel, though perhaps they may be 
 in cases not falling within the rules." 
 
 § 566. Jurisdiction of suits by material-men. — The several 
 district courts have exclusive original jurisdiction of all suits in 
 admiralty by material-men for supplies or repairs or other 
 necessaries;^^ and, in all such suits, "the libelant may proceed 
 against the ship, freight, and master, or against the ship and 
 freight, or against the owner or the master alone in per- 
 sonam. ' ' ]" 
 
 In the admiralty and maritime law of this country, the fol- 
 lowing propositions are established as the settled law, viz : 
 
 (1) For necessary repairs or supplies furnished to a vessel 
 in a foreign port, a lien is given by the general maritime law, 
 following the civil law, and may be enforced in admiralty.^" 
 
 15 The Hine v. Trevor, 4 Wall. (28:982); The Ethel, 66 Fed. R. 
 
 555 (18:451); The Moses Taylor, 4 342, S. C. 30 U. S. App. 214. 
 
 Wall. 411 (18:397); The Belfast, 7 is The Glide, 167 U. S. 606 (42: 
 
 Wall. 624 (19:200); The Lotta- 296) ; Perry v. Haines, 191 TJ. S. 17, 
 
 wana, 21 Wall. 559 (22:054); The 55 (48:73); The General Smith, 4 
 
 Glide, 167 U. S. 606 (42:296); Wheat. 438 (4:609). 
 
 Perry v. Haines, 191 U. S. 17, 55 id Admiralty rule 12. 
 
 (48:73) ; The J. E. Rumbell, 148 U. 20 The General Smith, 4 Wheat. 
 
 S. 1, 21 (37:345). 438 (4:609); The St. Jago de Cuba, 
 
 18 Admiralty rules, 12 to 20 in- 9 Wheat. 409 (6:122); The Vir- 
 
 clusive. gin v. Vyfhius, 8 Pet. 538 (8; 
 
 17 The Corsair, 145 U. S. 335, 348 1036) ; United States v. Neurea, 19 
 
 (36:727); The Sabine, 101 U.S. 348 How. 22 (15:531); The Grapeshot 
 
§ 566 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 443 
 
 (2) For repairs or supplies furnished to a vessel in her home 
 port, or a port of the state to which she belongs, no lien exists 
 in admiralty under the general law, and independently of local 
 statute.^^ 
 
 (3) "Whenever the statute of a state gives a lien for repairs 
 or supplies furnished to a vessel in her home port, or a port 
 of the state to which she belongs, the contract being maritime, 
 the lien created by the state statute is a maritime lien, and is, 
 by the principles of the maritime law, given the same rank as 
 maritime liens given by that law for repairs and supplies fur- 
 nished in a foreign port, and, therefore, may be enforced in the 
 admiralty courts of the United States by a proceeding in rem.^^ 
 
 (4) This maritime lien, created by the state statute, and 
 which is to be enforced by proceeding in rem, is within the ex- 
 clusive jurisdiction of the admiralty courts of the United 
 States, and, under the present distribution of the admiralty 
 jurisdiction, cognizance of such suits is vested exclusively in 
 the district cotirts.^^ 
 
 (5) The fundamental reasons upon which the proposition,, 
 that maritime liens created by state statutes are within the ex- 
 clusive jurisdiction of the courts of admiralty of the United 
 States, are,' that the entire judicial power over admiralty and 
 maritime causes is by the constitution vested in the general 
 government, and the admiralty and maritime jurisdiction of 
 the federal courts can neither be enlarged nor restricted by 
 state legislation, nor can the states exercise any part of that 
 jurisdiction; and, therefore, when a state, by statute creates a 
 lien to secure within its territorial limits, the performance of a 
 contract which is essentially maritime in its nature, and on 
 that account within the exclusive jurisdiction of the admiralty 
 
 , courts of the United States, the lien, so created, being an inci- 
 
 V. Wallerstein, 9 Wall. 129 (19: 22 Peyroux v. Howard, 7 Pet. 324 
 
 651); Hazlehurst v. The Lulu, 10 (8:700); The Lottawana, 21 Walk 
 
 Wall. 192 (19:900); Pendergast v. 558 (22:654); The St. Lawrence, 1 
 
 Kalorama, 10 Wall. 204 (19:941); Black, 522 (17:180); The Glide, 
 
 The Patapsco, 13 Wall. 239 (20: 167 U. S. 606 (42:296); Perry v. 
 
 696) ; Pritchard v. Beatly, 17 Wall. Haines, 191 U. S. 17, 55 (48:73). 
 
 660 (21:683). ' 23 The Glide, 167 U. S. 606 (42: 
 
 21 The General Smith, 4 Wheat. 296) ; Perry v. Haines, 191 U. S. 
 
 438 (4:609); The Lottawana, 21 17,55 (48:73); The Lottawana, 21 
 
 Wall. 558 (22:654); The St. Jago Wall. 559 (22:654). 
 de Cuba, 9 Wheat. 409 (6:122). 
 
444 FEDERAL PROCEDURE AT LAW. § 569 
 
 dent to the contract, is, itself, maritime, and must be enforced 
 by the federal courts of admiralty, they being vested by the 
 constitution and laws with exclusive jurisdiction of such 
 causes.^* 
 
 § 567. Jurisdiction of suits by seamen for wages. — ^AU per- 
 sons (apprentices excepted) who shall be employed or engaged 
 to serve iii any capacity on board of any vessel belonging to 
 any citizen of the United States shall be deemed and taken to 
 be seamen,^^ their contracts for service and compensation are 
 maritime, and the several district courts of the. United States 
 have exclusive original jurisdiction of all suits in admiralty 
 for seamen's wages; ^^ and in all such suits, "the libelant may 
 proceed against the ship, freight and master, or against the 
 ship and freight, or against the owner or the master alone 
 in personam."" 
 
 § 568. Same — ^Wages not dependent on freight. — The ancient 
 rule of the sea that "freight is the mother of wages" has been 
 abolished by act of congress, providing that "no right to 
 wages shall be dependent on the earning of freight by ihe 
 vessel." ^* 
 
 § 569. Jurisdiction of suits by master for his wages. — Every 
 person having the command of any vessel belonging to any citi- 
 
 24 The Glide, 167 TJ. S. 606, 624 No. 11,233; The Steamboat Ohio, 
 (42:296); The J. B. Rumbell, 148 Gilp. 505, Fed. Gas. No. 17,825; 
 U. S. 1, 21 (37:345); Perry v. Thacltarly v. The Parmer of Salem, 
 Haines, 191 U. S. 17, 55 (48:73). Gilp. 524, Fed. Gas. No. 13,852; 
 
 25 U. S. Rev. Stat. sec. 4612; 6 The Coal Boat D. C. Salisbury, Olc. 
 Fed. Stat. Anno. p. 930; Say lor v. Adm. 71, Fed. Gas. No. 3,694; The 
 Taylor, 23 C. C. A. 343. Ship Harriet, Olc. Adm. 229, Fed. 
 
 26 Sheppard v. Taylor, 5 Pet. 675 Gas. No. 6,897; Gurney v. Crockett 
 (8:269); Lee v. Ins. Co., Fed. Abb. Adm. 490, Fed. Cas. 5,874; 
 Cas. No. 8,190; Desbrow v. Walsh The Enterprise, Fed. Cas. 6,151; 
 Bros. 36 Fed. R. 607; -The W. P. Martin v. Acker, Fed. Cas. 9,155; 
 Brown, 46 Fed. 290, Wishart v. Macomber v. Thompson, Fed. Cas. 
 The Nixon, 43 Fed. R. 926; The No. 8,919; The Sloop Canton, 1 
 Atlantic, 53 Fed. R. 607; The Lucy Sprague, 437, Fed. Cas. No. 2,388; 
 Anne, 3 Ware, 253, Fed. Cas. 8,596. The May Queen, 1 Sprague, 588. 
 
 2T Admiralty rule 13; The Ethel, 28 u. S.- Rev. Stat. sec. 4525; 6 
 
 13 G. G. A. 504, 66 Fed. R. 340; Fed. Stat. Anno. p. 803; The Ocean 
 
 Sheppard v. Taylor, 5 Pet. 675 Spray, 4 Sarwy. 105, Fed. Cas. No. 
 
 (8:209). Baines v. The James, 10,412; Brown v. Chandler, Fed. 
 
 Bald. 567, Fed. Cas. No. 756; The Cas. No. 1,998; The Niphous Crew, 
 
 Heaton, 43 Fed. R. 595; Plummer Fed. Cas. No. 10,277; The Saratoga, 
 
 V. Webb, 4 Mason, 380, Fed. Cas. 2 Gall. 164. Fed. Cas. No. 12,355. 
 
- § 571 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 44& 
 
 zen of the United States shall be deemed and taken to be the 
 master thereof,^^ and his contract is maritime, and the several 
 district courts of the United States have exclusive original 
 jurisdiction of all suits in admiralty upon such contracts to 
 recover wages ; '" but in such suits the master can proceed in 
 personam only, as, under the general, maritime law he has no 
 lien.^^ 
 
 § 570. Towage contract;S. — Towage contracts are maritime,, 
 and the several district courts of the United States have exclu- 
 sive original jurisdiction of all suits in admiralty based on such 
 contracts ; '" but a suit in admiralty by the owner of a tow 
 against her tug to recover for an injury to the tow sustained 
 by negligence on the part of the tug, is a suit ex delicto and 
 not ex contractu, the contract in such suit being alleged by way 
 of inducement only to the real grievance complained of, which 
 is the wrong suffered by the libelant in the injury or destruc- 
 tion of his boat resulting from the negligence of the tug.^' 
 
 § 571. Jurisdiction of suits to recover compensation for pi- 
 lotage. — ^Pilotage is a strictly maritime service, and the dis- 
 trict courts of the United States have original exclusive juris- 
 diction of all suits in admiralty brought to recover compensa- 
 tion for pilotage performed or tendered, although arising un- 
 der state laws ; ^* but the concurrent remedy at law is fre- 
 
 29 IT. S. Rev. Stat. sec. 4612; 6 Quickstep, 9 Wall. 665 (19:767) r 
 Fed. Stat. Anno. p. 930. The Syracuse, 12 Wall. 167 (20: 
 
 30 The Hoag, 168 U. S. 443, 444 383). 
 
 (42 : 537) . »* Ex Parte McNeil, 13 Wall. 236, 
 
 31 Orleans v. PhCEbus, 11 Pet. 175 243 (20:624) ; Ex parte Hager, 104 
 (9:677). U. S. 521 (26:876); The Edith God- 
 
 32 The Oscoda, 66 Fed. R. 347; den, 25 Fed. R. 511; Glenarne, 7 
 The Williams, Brown's Adm. 208, Sawy. 202; The Schooner Kalmar, 
 Fed. Gas. No. 17,710; The Canal 10 Ben. 243, Fed. Gas. No. 7,601 
 Boat W. J. Walsh, 5 Ben. 72, Fed. Hobart v. Drogan, 10 Pet. 108 (9 
 Gas. No. 17,922; The Acadia, 363) ; The Galifornia. 1 Sawy. 463 
 Brown, Adm. 73, Fed. Gas. No. 24; The Wane, Fed. Gas. No. 17,297 
 Ward V. Banner, Fed. Gas. No. The George S. Wright, Deady, 591, 
 17,149; The Erastina, 50 Fed. R, Fed. Gas. No. 5,340; The Schooner 
 126. Anne, Fed. Gas. No. 412; The Al- 
 
 33 The John G. Stevens, 170 U. S. zena, 14 Fed. R. 174; The Brig. 
 113, 127 (42:969); The Arturo, 6 America, 1 Lowell, 176, Fed. Gas. 
 Fed. R. 308; The Brooklyn, 2 Ben. No. 289; The Lidia Fowler, US 
 547; The Deer, 4 Ben. 352; The Fed. R. 605. 
 
 Liberty No. 4, 7 Fed. R. 226; The 
 
446 FEDERAL PEOCEDURE AT LAW. § 573 
 
 quently resorted to in the state courts to recover pilotage, in 
 which case it is strictly a personal action.^' In all suits in ad- 
 miralty "for pilotage the libelant may proceed against the 
 ship and master, or against the ship, or against the owner alone 
 •or the master alone in personam." ^^ 
 
 § 572. Same — State laws regulating pilots are constitutional. 
 By an act of congress approved August 7, 1789, it was pro- 
 vided, "That all pilots in the bays, inlets, rivers, harbors, and 
 ports of the United States, shall continue to be regulated in 
 ■conformity with the existing laws of the states respectively 
 wherein such pilots may be, or with such laws as the states may 
 respectively hereafter enact for the purpose, until further legis- 
 lative provision shall be made by congress." ^^ This early rec- 
 ognition of the right of the states to enact such legislation, has 
 resulted in the establishment, by all the maritime states, of a 
 complete and compulsory code of pilot regulations, which have 
 been held by the supreme court to be constitutional.''* 
 
 § 573. Jurisdiction of suits for salvage. — Salvage is a strictly 
 maritime service, and suits in admiralty to recover it are 
 within the exclusive original jurisdiction of the district courts 
 of the United States ; "" and, ' ' in all suits for salvage, the suit 
 
 35 Cooley V. Board of Wardens of pilotage laws of the state of Texas, 
 
 the Port of Philadelphia, 12 How. said: 
 
 299 (13:996); Thompson v. Dar- "The first contention in effect 
 
 den, 198 U. S. 310, 317 (49:1064). is that the state was without power 
 
 38 Admiralty rule 13. to legislate concerning pilotage, 
 
 37 1 U. S. Stat, at L. ch. 9, sec. 4, because any enactment on that sub- 
 
 p. 54; U. S. Rev. Stat. sec. 4235; 5 ject is necessarily a regulation of 
 
 Fed. Stat. Anno. p. 747. In the re- commerce within the provision of 
 
 vision, that clause of the statute the constitution of the United 
 
 referring to future state legisla- States. The unsoundness of this 
 
 tlon was omitted. contention is demonstrated by the 
 
 38 Cooley V. Board of Wardens of previous decisions of this court, 
 The Port of Philadelphia, 12 How. since it has long been settled that 
 299 (13:996) ; Ex parte McNeil, 13 even though state laws concerning 
 Wall. 236, 243 (20:624); Olsen v. pilotage are regulations of corn- 
 Smith, 195 U. S. 332, 345 (49:224) ; merce, 'they fall within that class 
 Thompson v. Darden, 198 U. S. 310, of powers which may be exercised 
 317 (49.1064) ; Wilson V. McNamee, by the states until congress has 
 102 U. S. 572 (26:234). seen fit to act upon the subject.'" 
 
 In Olsen v. Smith, supra, Mr. 3f» Houseman v. The Schooner 
 
 Justice White delivering the opin- North Carolina, 15 Pet. 40 (10: 
 
 ion of the court, construing the 653) ; The Steamboat Cheesman v. 
 
 Two Ferry Boats, 2 Bond, 363, Fed. 
 
■§ 575 ADMIRALTY JURISDICTION OP DISTRICT COURTS. 447 
 
 may be in rem against the property saved, ,or the proceeds 
 thereof, or in personam against the party at whose request or 
 for whose benefit the salvage service has been performed. ' ' *" 
 
 § 574. Same — Libel for salvage against the United States. — 
 Under the second section of the Tucker Act, defining the con- 
 current jurisdiction of the court of claims and the district 
 -courts of the United States, a district court has jurisdiction in 
 ■admiralty of a libel in personam for salvage against the United 
 States.*^ 
 
 § 575. General average contribution. — General average con- 
 tribution is defined to be a contribution by all the parties in 
 3. sea adventure to make good all the losses sustained by one 
 ■of their number on account of sacrifices voluntarily made of 
 part of the ship or cargo to save the residue and the lives of 
 those on board from an impending peril, or for extraordinary 
 ■expenses necessarily incurred by one or more of the parties 
 for the general benefit of all the interests embarked in the en- 
 terprise. Losses which give a claim to average are usually di- 
 vided into two classes: (1) Those which arise from sacrifices of 
 part of the ship or part of the cargo, purposely made in order 
 to save the whole adventure from perishing. (2) Those which 
 arise out of extraordinary expenses incurred for the joint bene- 
 fit of ship and cargo. 
 
 Five things must concur in order to constitute a valid claim 
 for general average contribution, namely: (1) There must be 
 a common danger to which the ship, cargo, and crew were all 
 exposed, and that danger must be imminent and apparently 
 
 •Gas. No. 2,633; Western Transp. lo Admiralty Rule 19; United 
 
 Co. V. The Great Western, Fed. States v. Cornell Steamboat Co. 
 
 'Gas. No. 17,443; Gates y. Johnson, (adyanced sheets, June 15, 1906). 
 
 Fed. Gas. No. 5,268; The Barge 4i United States v. Cornell 
 
 Jennie Lind, New. Adm. 443, Fed. Steamboat Co. (adyanced sheets 
 
 Cas. 17,723; The Roanoke, 50 Fed. June 15, 1906), and see further as 
 
 11.574; The Louisa Jane, 2 Lowell to the responsibility of the goyern- 
 
 295, Fed. Cas. No. 8,532; Muntz v. ment for salyage seryice, the fol- 
 
 A Raft of Timber, -15 Fed. R. 555; lowing cases: The Davis, 10 Wall. 
 
 Pifty Thousand Feet Timber, 2 15 (19:875) ; United States y. Wil- 
 
 Lowell, 64, Fed. Cas. No. 4,783; der, 3 Sumn. 308, Fed. Cas. 16,694; 
 
 The Huntsyille, Fed. Cas. No. 6,- The Exchange y. McFadden, 7 
 
 916; McMullin y. Blackburn, 59 Cranch, 116 (3:287); The Siren, 
 
 Fed. R. 177; McConnochie v. Kerr. 7 Wall. 152, 165 (19:129). 
 
 ■S Fed. R. 50. 
 
448 FEDERAL PROCEDURE AT LAW. § 576 
 
 inevitable, except by incurring a loss of a portion of the asso- 
 ciated interests to save the remainder; (2) there must be the 
 voluntary sacrifice of a part for the benefit of the whole, as 
 for example, a voluntary jettison or casting away of some por- 
 tion of the associated interests for the purpose of avoiding the 
 common peril, or a voluntary transfer of the common peril 
 from the whole to a particular portion of those interests; 
 (3) the attempt so made to avoid the common peril to which 
 all those interests were exposed must be to some practical ex- 
 tent successful, for if nothing is saved there cannot be any 
 such contribution in any case; (4) the sacrifice must be made 
 by the master or owner, or other person charged with the cour 
 trol and protection of the common adventure, and represent- 
 ing and acting for aU interests included in that adventure, and 
 those only; and (5) the sacrifice must not be caused by the 
 fault or negligence of any of the persons in interest.*^ 
 
 The district courts of the United States have exclusive origi- 
 nal jurisdiction of all suits in admiralty for general average 
 contribution,*^ but the concurrent common-law remedy is fre- 
 quently resorted to in order to enforce such rights.** 
 
 § 576. Jurisdiction of suits on policies of marine insurance. 
 A policy of marine insurance is a maritime contract, having 
 reference to maritime transactions, springing from the law 
 maritime, and deriving all its material rules and incidents 
 from that system; and the district courts of the United States 
 have exclusive original jurisdiction of all suits in admiralty 
 based on such contracts.*^ 
 
 A contract of marine insurance is neither commerce nor an 
 instrumentality of commerce, but a mere incident of commer- 
 cial intercourse; and a state has the undoubted power to pro- 
 hibit foreign insurance companies from making contracts *of 
 
 42 star of Hope, 9 "Wall. 203, 237 386, 428 (39:742) ; The Irrawaddy, 
 (19:638) ; Ralli v. Troop, 157 U. S. 171 U. S. 187 (43:130). 
 
 386,428 (39:742); The Irrawaddy, « Barnard v. Adams, 10 How. 
 
 171 U.S. 187 (43:130); McAndrews 270 (13:417); Insurance Co. v. 
 
 V. Thatcher, 3 Wall. 365 (18:159) ; Ashby, 13 Pet. 331 (13:186). 
 
 Barnard v. Adams, 10 How. 270 ^o De Lovio v. Boit, 2 Gall. 398, 
 
 (13:417). Fed. Cas. No. 3,776; Insurance Co. 
 
 43 Star of Hope, 9 Wall. 203, 237 v. Dunham, 11 Wall. 1, 36 (11:90). 
 (19:638) ; Ralll v. Troop, 157 U. S. 
 
§ 578 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 449 
 
 insurance, marine or otherwise, except upon such conditions as 
 the state may prescribe, and, having the power to impose con- 
 ditions on the transaction of business by foreign insurance- 
 companies within its limits, the state has the equal power to> 
 prohibit the transaction of such business by agents of such 
 companies, or by insurance brokers, who are to some extent 
 the representatives of both parties.*" i ^ 
 
 § 577. Jurisdiction of suits on maritime hypothecation. — 
 The master of a vessel of the United States, being in a foreign 
 port, has power, in a case of necessity, to hypothecate the ves- 
 sel, and also to bind himself and the owners, personally, for 
 repairs and supplies., and he does so without any express hy- 
 pothecation, when, in a case of necessity, he obtains them on 
 the credit of the vessel without a bottomry bond ; " and in a 
 case of urgent necessity, the master, acting in good faith, ex- 
 ercising his best discretion for the benefit of all concerned, and 
 under compulsion of necessity, to be determined in each case 
 by the actual and impending peril to which the vessel was ex- 
 posed, may hypothecate the cargo.*' 
 
 The district courts of the United States have exclusive origi- 
 nal jurisdiction of all suits in admiralty upon maritime hy- 
 pothecations; ** and "in all suits against the ship or freight 
 founded upon a mere maritime hypothecation, either express 
 or implied, of the master, for moneys taken up in a foreign 
 port for supplies or repairs or other necessaries for the voyage, 
 without any claim of marine interest, the libelant may pro- 
 ceed either in rem or against the master or owner in perso- 
 nam." ^° 
 
 § 578. Same — Bottomry bonds — ^Defined. — ^Mr. Justice Story 
 defined a bottomry bond as follows: "The true definition of a. 
 bottomry bond, in the sense of the general maritime law, and 
 independent of the peculiar regulations of the positive codes 
 of different commercial nations, is, that it is a contract for a. 
 loan of money on the bottom of the ship, at an extraordinary 
 
 *e Nutting v. Massachusetts, 183 *8 The Grapeshot, 9 Wall. 129, 145 
 
 U. S. 553, 558 (46:324). (19:651); The Lulu, 10 Wall. 192, 
 
 47 Thomas v. Osborn, 19 How. 204 (19:906); Thomas v. Osborn, 
 22, 56 (15:534). 19 How. 22, 56 (15:534); The Julia. 
 
 48 The Julia Blake, 107 U. S. 414, Blake, 107 U. S. 414, 433 (27:595). 
 433(27:595). eo Admiralty rule 17. 
 
 29 
 
450 FEDERAL PEOCEDUEE AT LAW. § 579 
 
 interest upon maritime risk, to be borne by the lender for a 
 voyage, or for a definite period. ' ' ^^ 
 
 Mr. Chief Justice Chase, delivering the opinion of the su- 
 preme court in a suit brought upon an instrument of that char- 
 acter, said: "A bottomry bond is an, obligation, executed, gen- 
 erally, in a foreign port, by the master of a vessel for payment 
 of advances to supply the necessities of the ship, together with 
 such interest as may be agreed on, which bond creates a lien 
 on the ship which may be enforced in admiralty in case of her 
 safe arrival at the port of destination; but becomes absolutely 
 void and of no effect in case of her loss before arrival. Such 
 a bond carries usually a high rate of interest, to cover the risk 
 of loss of the ship as well as a liberal indemnity for other risks 
 and for the use of the money, and will bind the ship only where 
 the necessity for supplies and repairs, in order to the perform- 
 ance of a contemplated voyage, is a real necessity, and neither 
 the master nor owners have funds or credit available to meet 
 the wants of the vessel. Some bonds, bearing only the ordi- 
 nary rate of interest, or executed under circumstances more 
 or less different from those just stated, are called bottomry 
 bonds, and are enforced as such; but the general description 
 just given embraces most instruments known under that name, 
 and is sufficiently accurate for the case presented by the rec- 
 ord." ^^ 
 
 An admiralty rule provides that: "In all suits on bottomry 
 bonds, properly so called, the suit shall be in rem only against 
 the property hypothecated, or the proceeds of the property in^ 
 whosesoever hands the same may be found, unless the master 
 has, without authority, given the bottomry bond, or by his 
 fraud or misconduct has avoided the same, or has subtracted 
 the property, or unless the owner has, by his own misconduct 
 or wrong, lost or subtracted the property, in which latter ease 
 the suit may be in personam against the wrongdoer. ' ' °' 
 
 § 579. Same — ^Respondentia bonds. — A respondentia bond is 
 an hypothecation of the cargo, and is — mutatis mutandis — sub- 
 stantially the same as a bottomry bond ; '* but the limitations 
 
 51 The Draco, 2 Sumn. 157, Fed. es Admiralty rule 18. 
 
 Cas. No. 4,057. s* Conrad v. Atlantic Ins. Co., 1 
 
 62 The Grapeshot, 9 Wall. 129, Pet. 386 (7:189). / 
 145 (19:651). 
 
§ 582 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 451 
 
 bpon the authority of the master is applied with greater strict- 
 ness in the execution of the former than in the lattar.^' The 
 exclusive original jurisdiction of suits upon these bonds in ad- 
 miralty is vested in the district courts.^" 
 
 § 580. Jurisdiction of suits on affreightment contracts. — All 
 contracts of whatever character, and whether in writing or 
 resting in parol, for the transportation of property by vessels 
 upon navigable waters are, by the maritime law of this coun- 
 try, maritime contracts, and the district courts of the United 
 States are vested with exclusive original jurisdiction of suits 
 in admiralty, both in rem and in personam, founded on such 
 contracts,"^ and this is true although the port of shipment and 
 the port of destination are within the same state. °^ 
 
 § 580a, Jurisdiction of suits on contracts for the transportar- 
 tion of persons.— By our maritime law, contracts for the trans- 
 portation of persons are maritime contracts, and the jurisdic- 
 tion of suits upon them in admiralty is vested exclus.ively in 
 the district courts of the United States. ^^ " 
 
 § 581. Jurisdiction of suit based on charter-party. — By the 
 maritime code of the United States, a charter-party, which is a 
 contract by which the owner lets and hires his ship or some 
 portion of it to another,*" is a maritime contract, and the dis- 
 trict courts of the United States are vested with exclusive origi- 
 nal jurisdiction of all suits in admiralty, both in rem and in 
 perso7imn, based on such instruments."^ 
 
 § 582. Demurrage. — Demurrage, which is an allowance or 
 compensation for the delay or detention of a vessel, and which 
 may arise either ex delicto or ex contractu, is within the ex- 
 clusive admiralty jurisdiction of the district courts."^ 
 
 55 The Julia Blake, 107 U. S. 418, si Morewood v. Enequist, 23 How. 
 433(29:595). ' 491,495(16:516). 
 
 56 Conrad v. Atlantic Ins. Co., 1 ea The Appollon, 9 "Wheat. 362 
 Pet. 386 (7:189). (6:111); The Conqueror, 166 U. S. 
 
 57 The New Jersey Steam Nav. 110,136 (41:937); The Potomac v. 
 Co. V. Merchants Bank, 6 How. 344 Cannon, 105 U. S. 630, 636 (26: 
 (12:465). 1194); United States v. The 
 
 58 The Belfast, .7 "Wall. 624, 646 Nuestra Senora De Regla, 108 U. S. 
 (19:266). 92, 104 (27:662). "The duty of a 
 
 59 The Moses Taylor, 4 "Wall. 555 captor is to institute judicial pro- 
 (18:451). ceedings for the condemnation of 
 
 60 1 Parsons on Shipping and Ad- his prize without unnecessary de- 
 miralty, 274-299. lay, and if he fails in this the court 
 
452 FEDERAL PEOCEDUEB AT LAW. § 587 
 
 § 583. stevedores. — ^It has been held hy some of the inferior 
 federal courts, that the services of stevedores, who are skilled 
 laborers engaged in stowing and discharging cargoes, are mar- 
 itime in their character, and within the admiralty jurisdiction 
 of the district courts ; "^ but the question has never been de- 
 cided by the supreme court. 
 
 § 584. Wharfage. — Contracts for wharfage are maritime, 
 and within the exclusive admiralty jurisdiction of the district 
 courts. If the vessel contracting for the use of the wharf be 
 a foreign one, or belongs to a state other than the one in which 
 the wharf is situated, a maritime lien arises in favor of the 
 proprietor of the wharf against the vessel, which can be en- 
 forced only by a suit in rem in the district court sitting in 
 admiralty."* 
 
 § 585. Lighterage.— It seems that the services of lighters in 
 loading and unloading ships are maritime, and within the 
 admiralty jurisdiction. °° 
 
 § 586. Consortship. — ^An agreement between the owners of 
 two vessels, known as "wreckers," that the vessels owned by 
 them, respectively, shall act as consorts with each other in 
 salvage service, and share mutually with each other in the 
 moneys awarded as salvage, whether earned by one vessel or 
 both, is a maritime contract and may be enforced in admiralty 
 against property or its proceeds in the custody of the court."" 
 
 § 587. Jurisdiction of petitory and possessory suits. — The 
 district courts have exclusive original jurisdiction of all peti- 
 tory and possessory suits in admiralty. The court is vested 
 with plenary jurisdiction of all questions of title and posses- 
 sion of ships and other vessels used in navigation."^ 
 
 may, in case of restitution, decree Bark Windermere, 2 Fed. R. 722; 
 
 demurrage against him as dam- Tlie Ivantioe, 26 Fed. R. 927. 
 
 ages. This rule is well settled." e4Ex parte Baston, 95 U. S. 68, 
 
 Chief Justice Waite in United 78 (24:373); The Dora Mathews, 
 
 States V. The Nuestra Senora De 31 Fed. R. 620. 
 
 Regla, supra. es i Parsons on Shipping and 
 
 63 The George T. Kemp, 2 Low- Admiralty, 230, 237, 238; Thacka- 
 
 ell, 477, Fed. Cas. No. 5,341; The rey v. The Farmer, Gilp. 526. 
 
 Seguranca, 58 Fed. R. 908; The Gil- eo Andrews v. Wall, 3 How. 368 
 
 bert Knapp, 37 Fed. R. 209; The (11:729). 
 
 Magnolia, 37 Fed. R. 367, The Mat- 67 Admiralty rule 20; Ward v. 
 
 tie May. 45 Fed. R. 899; The Main, Peck, 18 How. 267, 271 (15:383) ; 
 
 51 Fed. R. 954; Roberts v. The New England Ins. Co. v. Brig 
 
§ 591 ADMIEALTT JUEISDICTION OF DISTRICT COURTS. 453 
 
 § 588. Jurisdiction of suits for damages by collision.— The 
 
 district courts of the United States are vested with exclusive 
 original jurisdiction of all suits in admiralty for damages 
 caused by a collision between two ships or other vessels en- 
 gaged in navigation and commerce ;°^ and in such suits, "the 
 libelant may proceed against the ship and master, or against 
 the ship alone, or against the master or owner alone in per- 
 sonam." °° 
 
 § 589. Same — Collision infra corpus comitatus. — ^At the time 
 of the adoption of the federal constitution, the English admir- 
 alty had no jurisdiction of a suit for damages based on a colli- 
 sion occurring within the body of a county, and it was at first 
 strenuously insisted that the same limitation should be imposed 
 upon the admiralty jurisdiction of the United States courts; 
 but the English rule was rejected, and the doctrine established 
 that the fact that the collision may have occurred within the 
 body of a county is wholly immaterial to the exercise of juris- 
 diction over the cause of action.*'^ 
 
 § 590. Same — Venue of suits for damages by collision. — 
 While the rule is fundamental that jurisdiction in admiralty, 
 in cases of tort, depends upon locality, the rule does not re- 
 quire tha,t the suit shall be brought in the district where the 
 tort occurred. The cause of action in such case is transitory. 
 Marine torts are in the nature of trespasses upon the person 
 or upon personal property, and they may be prosecuted in 
 personam in any district Avhere the offending party resides, or 
 in rem wherever the offending thing is found to be withiu the 
 jurisdiction of the court issuing the process.'"' 
 
 § 591. Same — Concurrent common-law remedy for damage 
 by collision. — There has always been a remedy at common law 
 for damages by collision at sea ;^^ and the action is one of tres- 
 pass vi et armis or trespass on the case, according to the cir- 
 cumstances.'^^ 
 
 Sarah Anne, 13 Pet. 387 (10:213); to The Propeller Commerce, 1 
 The Tilton, 5 Mason, 465. Black, 574 (17:107) ; Nelson v. Le- 
 ss The Hine v. Trevor, 4 "Wall. land, 22 How. 48 (16:269). 
 '555 (18:451). ti Schoonmaker v. Gilmore, 102 
 89 Admiralty rule 15. IT. S. 118, 119 (26:95); Billings v. 
 69a Waring v. Clark, 5 How. 441 Brelning, 45 Mich. 69, 7 N. W. 722. 
 (12:226); The Magnolia, 20 How. 72 percival v. Rickey, 18 Johns. 
 296 (15:909) ; The Propeller Com- 257, Book 6, Law Ed. 579. 
 merce, 1 Black, 574 (17:107); Nel- 
 son V. Leland, 22 How. 48 (16:269). 
 
454 FEDERAL PEOCEDUEE AT LAW. § 593 
 
 § 592. Jurisdiction of suits for damages to vessel caused 
 by obstructions negligently left in navigable waters. — Marine 
 torts, as defbied and understood in the maritime law, are not 
 confined to injuries committed by direct force, but also include 
 wrongs suffered in consequence of the negligence or malfeas- 
 ance of others, where the remedy at common law is by an ac- 
 tion on the case. "It is a rule of the maritime law, from the 
 earliest times, 'that if a ship run foul of an anchor left with- 
 out a buoy, the person who placed it there shall respond in 
 damages; ' " and it is an established principle of the maritime 
 code of the United States that if any person or corporation 
 shall negligently place or leave any obstruction in any navi- 
 gable waters, whereby a ship or vessel is injured, the person 
 or corporation guilty of such negligent obstruction may be 
 compelled to respond in damages by suit in admiralty, and of 
 such suit the district courts have exclusive original jurisdiction, 
 saving, however, the concurrent common-law remedy of a spec- 
 ial action on the case.''^ 
 
 § 593. Jurisdiction of libel iii rem against vesselfor negli- 
 gent destruction of beacon. — The supreme court has recently 
 held that tlie district court in admiralty has jurisdiction in 
 rem of a libel against a British vessel for negligently colliding 
 with and destroying a beacon, erected, as an aid to navigation, 
 by the government, fifteen or twenty feet from the channel of 
 Mobile bay, in water twelve to fifteen feet deep, built on piles 
 driven firmly into the bottom, and thus attached to realty and 
 being a part of it. In deciding the case, the court said: "It is 
 enough to say that we are now dealing with an injury to a gov- 
 ernment aid to navigation from ancient times subject to the 
 admiralty — a beacon emerging from the water — injured by 
 the motion of a vessel, by a continuous act, beginning and con- 
 summated upon navigable water, and giving character to the 
 effects upon a point which is only technically land, through 
 a connection at the bottom of the sea. ' ' '^* 
 
 73 The Philadelphia, Wilmington 619) ; Panama Railroad Co. v. 
 
 & Baltimore Railroad Co. v. The Napier Shipping Co., 166 U. S. 280, 
 
 Philadelphia & Havre De Grace 290 (41:1004). 
 
 Steam Towboat Co., 23 How. 209, " The Blackheath, 195 U. S. 361, 
 
 220 (16:433); Atlee v. Northwest- 369 (49:236). 
 ern Packet Co., 21 Wall. 389 (22: 
 
§ 596 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 455 
 
 § 594. Jurisdiction of suits for assault and battery. — The 
 
 district court has exclusive original jurisdiction of suits in ad- 
 miralty for assaults and batteries upon the high seas and other 
 navigable waters,^^ but such suits shall be in personam only.^* 
 
 § 595. Action for marine tort resulting iii death. — It is 
 within' the legal competency of the several states to enact 
 statutes giving an action at law for marine torts resulting 
 in death, and to confer jurisdiction of such actions upon their 
 own courts, where the tort occurs upon either the high seas or 
 the navigable waters within the territorial limits of the states, 
 each, respectively. The fact that admiralty may take cognizance 
 of such causes does not bar the action at law. Suitors may 
 have a common-law remedy in all cases where the common law is 
 competent to give it, and the operation of the saving clause of 
 the, statute conferring admiralty jurisdiction on the federal 
 courts is not limited to such causes of action as were known to 
 the common law at the time of the passage of the original judi- 
 ciary act. In such cases, the plaintiff may resort to his common- 
 law remedy in the state courts, or in the circuit courts of the 
 United States where the character of the parties and the amount 
 involved are such as to give the circuit court jurisdiction.''^ 
 
 § 596. Same — Jurisdiction in admiralty under state statute. 
 It seems that the following propositions are now regarded as 
 settled, namely: (1) That at the common law no civil action 
 would lie for an injury resulting in death ; (2) that, in the ab- 
 sence of proper legislation, no proceeding in admiralty will lie 
 for negligent injury causing death on the high seas or the 
 navigable waters of the United States; (3) that, in the absence 
 of legislation by congress, if a state statute gives a right of 
 action touching the subject of a maritime nature, the admir- 
 alty will administer the law within the jurisdiction of such 
 state by a proceeding in rem if the statute grants a lien, or in 
 personam, no lien being granted.''* 
 
 75 Chamberlain v. Chandler, 3 's The Onoko, 47 C. C. A. Ill, 107 
 
 Mason, 242, Fed. Cas. No. 2,575; Fed. R. 984; Blgelow v. Nickerson, 
 
 Plummer v. Webb, 4 Mason, 380, 17 C. C. A. 1, 70 Fed. R. 113, 30 L. R. 
 
 Fed. Cas. No. 11,234. ,A. 336; The Corsair, 145 U. S. 335, 
 
 T8 Admiralty rule 16. 347 (36:727); The Albert Dumois, 
 
 77 Steamboat Co. v. Chase, 16 177 U. S. 240, 259 (44:751); The 
 
 Wall. 522, 535 (21:369); Sherlock Harrisburg, 119 U. S. 199 (30:358); 
 
 V. Ailing, 93 U. S. 99, 108 (23. Mobile L. Ins. Co. v. Brame, 95 U. 
 
 819); Old Dominion S. S. Co. v. S. 754 (24:580); Old Dominion S. 
 
 Gilmore, 207 V. S. 398 (52:—), S. Co. v. Gilmore, 207 U. S. 398 
 
 affirming 77 C. C. A. 150. (52:—) affirming 77 C. C. A. 15a 
 
456 FEDERAL PEOCEDUKE AT LAW. § 598 
 
 § 597. Jurisdiction of suits under the limited liability act. — • 
 
 The district courts of the United States, as courts of admiralty, 
 are vested with exclusive original jurisdiction of all suits and 
 proceedings under what is known as the "limited liability act," 
 limiting the liability of shipowners, under certain circum- 
 stances, to the value of their interest in the vessel and pending 
 freight, and have, as courts of admiralty, plenary power to en- 
 tertain and carry on all proper proceedings for the due execu- 
 tion and beneficial administration of the law in all its details; 
 and, in the exercise of that jurisdiction, they may restrain the 
 prosecution of any and all suits in either the state courts or 
 other federal courts, whenever it may be necessary to a due and 
 orderly administration of the law, a sale of the property, a dis- 
 bursement of the fund, and the protection of the parties con- 
 cerned/" 
 
 § 598. Jurisdiction of majritime seizures. — The federal dis- 
 trict courts, as courts of admiralty, are vested with exclusive 
 original jurisdiction of all suits prosecuted for the forfeiture 
 and condemnation of vessels seized upon navigable waters for 
 the violation of the laws of impost, navigation and trade or any 
 other law of the United States ; *" except, however, the district 
 courts and circuit courts have concurrent original jurisdic- 
 tion of seizures made under the laws relating to the slave trade, 
 
 79 Korwich & N. Y. Transp. Co. v. ted States v. The Betsey and Char- 
 Wright, 13 "Wall. 104, 127 (20:585) ; lotte, 4 Cranch, 443 (2:673) ; Whe- 
 Butler V. Steamship Co., 130 U. S. Ian v. United States, 7 Cranch, 112 
 527, 558 (32:1017); The Scotland, (3:286); The Samuel, 1 Wheat. 9 
 105 U. S. 24, 36 (26:1001); Provi- (4:23); Gelston v. Hoyt, 3 Wheat, 
 dent & N. Y. S. S. Co. v. Hill Mfg. 246 (4:387) ; The Merino, 9 Wheat. 
 Co., 109 U. S. 578, 593 (27:1038); 391 (6:118); The Palmyra, 12 
 Ex parte Garnett, 141 U. S. 1, 18 Wheat. 1 (6:531); Novion v. Hal- 
 (35:631) ; The Albert Dumois, 177 lett, 16 Johns. 343; The Brig Ann, 
 U. S. "240, 259 (44:751); Admiralty 9 Cranch, 289 (3:734); United 
 rules 54, 55, 56, 57; U. S. Rev. Stat. States v. The Schooner Sally, 2 
 sees. 4281-4289; 23 U. S. Stat, at L. Cranch, 406 (2:320) ; United Statea 
 eh. 121, sec. 18, p. 57; 3 U. S. Comp. v. La Vengance, 3 Dal. 297 (1: 
 Stat. 1901, pp. 2942-2945; 4 Fed. 610); United States v. The Three 
 Stat. Anno. pp. 837-854, with notes Friends, 166 U. S. 1, 83 (41:897) ; 
 collecting the decisions under the Brig Kate, 2 Wall. 350, 356 (17: 
 act. 878) ; The Sarah, 2 Wall. 366 (17: 
 
 80 Sec. 734, U. S. Rev. Stat; 3 906); The Bark Reindeer, 2 Wall. 
 
 Fed. Stat. Anno. p. 95; Glass v. 383, 403 (17:911). 
 The Betsey, 3 Dal. 6 (1:485) ; Uni- 
 
§ 601 ADMIRALTY JURISDICTION OF DISTRICT COURTS. 457 
 
 and seizures made under section fifty-three hundred and eight 
 of the Revised Statutes." 
 
 § 599. Same — Seizure necessary to vest jurisdiction. — In 
 such casesi, seizure is necessary to give the court jurisdiction, 
 and the seizure must be made before the libel is filed. In order 
 to institute and perfect proceedings in rem, it is necessary that 
 the thing should be actually or constructively within the reach 
 of the court. It is actually within its possession when it is 
 submitted to the process of the court; it is constructively so, 
 when, by seizure, it is held to ascertain and enforce a right 
 of forfeiture which can alone be decided by a judicial decree 
 in rem. There must be a subsisting seizure at the time when 
 the libel is filed.^^ The seizure being jurisdictional, the absence 
 from the libel of an appropriate allegation of seizure may be 
 taken advantage of at any time.'" 
 
 § 600. Same — Venue of suits to forfeit and condemn seizures. 
 The jurisdiction in such cases is given to the court of the 
 district, not where the offense is committed, but where the seiz- 
 ure is made, or where it is carried. If the property be 
 seized within the territorial limits of the United States, the 
 district court of the district where the seizure is made has 
 jurisdiction; but if the seizure be made upon the high seas or 
 within the territory of a foreign power, the jurisdiction may 
 be exercised by the district court of any district into which 
 the property seized is brought and proceedings instituted.'* 
 
 § 601. Jurisdiction of suits for the restitution of vessels il- 
 legally seized. — The district courts, as courts of admiralty, 
 have and exercise exclusive original jurisdiction of all suits 
 for the restitution of vessels and other property illegally seized 
 upon the high seas or the navigable waters of the United 
 States or navigable waters within the territory of a foreign 
 power, whether such illegal seizure be made under color of 
 the laws of the United States,'' or as prize jure helli.^^ 
 
 81 U. S. Rev. Stat. sec. 563, cl. 8, so Ex parte Fassett, 142 U. S. 479 
 
 sec. 629, cl. 6 and 7 (35:1087); The Conqueror, 166 U. 
 
 s2The Brig Ann, 9 Cranch, 289 S. 110, 136 (41:937); Yeaton v. 
 
 (3:734). United States, 2 Cranch, 281 (3: 
 
 S3 The Washington, 4 Blackf. 101) ; Rose v. Himley, 4 Cranch, 
 
 101, 103, Fed. Cas. No. 17,221. 241 (2:608). 
 
 84U. S. Rev. Stat. sec. 734; 3 Fed. so Glass v. The Betsey, 3 Dal. 6 
 
 Stat. Anno. p. 95; The Merino, 9 (1:485). 
 Wheat. 391 (6:118). 
 
458 FEDEBAL PKOCEDUEE AT LAW. § 603 
 
 § 602. Jurisdiction of prize jure belli. — The district courts 
 are vested with exclusive original jurisdiction in admiralty 
 of all suits prosecuted for the adjudication of the question of 
 prize or no pri^e in captures jure belli, and to entertain all 
 claims and proceedings and to make all orders and decrees 
 which may be necessary for the just and lawful disposition of 
 the property, including restitution where the seizure is illegally 
 made ; ^' except, however, proceedings under section fifty-three- 
 hundred and eight of the Revised Statutes, in which the circuit 
 and district courts have concurrent jurisdiction.*' 
 
 § 603. Venue of suits in admiralty. — The provision of the 
 federal judiciary act requiring suit to be brought in the dis- 
 trict whereof the defendant is an inhabitant has no applica- 
 tion to causes of admiraltj^ and maritime jurisdiction. By 
 the ancient and settled practice of courts of admiralty, a libel 
 in personam may be maintained for any cause within their 
 jurisdiction, whenever a monition can be served on the libelee, 
 or an attachment made of any personal property or credits 
 of his; and this practice has been recognized and upheld by 
 the rules and decisions of the supreme court, and is controlling 
 in all the courts of admiralty jurisdiction in the federal sys- 
 tem. «» 
 
 Suits in rem, the invariable purpose of which is, either to 
 enforce a maritime lien upon specific property, or to forfeit 
 and condemn specific property, or to recover the title or pos- 
 session of specific property, or to surrender specific property 
 
 87 Bingham v. Cabbot, 3 Dall. 19 (5:454); M'Donough v. Dannery, 3 
 
 (1:491); The Amiable Nancy, 3 Dall. 188 (1:563). 
 
 Wheat. 546 (4:456); Glass v. The ssu. S. Rev Stat. sec. 563, cl. 9, 
 
 Betsey, 3 Dall. 6 (1:485); Jennings sec. 629, cl. 6; 4 Fed. Stat. Anno. 
 
 V. Carson, 4 Cranch, 2 (2:531); pp. 234 and 249. 
 
 Hudson V. Guestier, 4 Cranch, 293 89 Ex parte Louisville Under- 
 
 (2:625); The Estrella, 4 Wheat. writers, 134 U. S. 488, 494 (33: 
 
 298 (4:574); The Siren, 7 Wall. 152 991); Manro v. Almeida, 10 
 
 (19:129); Prize Cases, 2 Black, 635 Wheat. 473 (6:369); Atkins v. 
 
 (17:459); Jecker v. Montgomery, Disintegrating Co., 18 Wall. 272 
 
 18 How. 110 (15:311); Penhallow (21:841); Ins. Co. v. Steam Navl- 
 
 V. Doane, 3 Dall. 54 (1:507); gation Co., 18 Wall. 307 (21:846) ; 
 
 Jecker v. Montgomery, 13 How. Gushing v. Laird, 107 U. S. 69 (27: 
 
 498 (14:240); The Alerta v. Mo- 391); Devoe Mfg. Co., Petitioner, 
 
 ran, 9 Cranch, 359 (3:758); The 108 XT. S. 401 (27:764); Admiralty 
 
 Santissima Trinidad, 7 Wheat. 283 rules 2, 57. 
 
§ 604 ADMIEALTY JURISDICTION OF DISTRICT COURTS. 459' 
 
 to creditors and claimants under the limited liability act, must 
 be commenced and prosecuted in the district where the property- 
 is f ound.°° 
 
 § 604. Same — Interventions. — Interventions pro interesse suo, 
 to claim proceeds in the registry of the court, or to assert 
 liens on property which has, in suits in rem, been arrested, 
 must, as a matter of course, be filed in the court where the 
 original suit was brought, and in the very suit itself.'^ Courts 
 of admiralty, under the forty-third rule, have the power to 
 distribute surplus proceeds to all persons who can show a 
 vested interest therein, in the order of their several priorities,, 
 no matter how their claims originated.'^ 
 
 90 The Propeller Commerce, 1 Merino, 9 Wheat. 391 (6:118), U. 
 
 Black, 574 (17:107) ; Nelson v. Le- S. Rev. Stat. sec. 734, 3 Fed. Stat, 
 
 land, 22 How. 296 (15:909); The Anno. p. 95; Admiralty rules 9, 
 
 Reindeer, 2 Wall. 403 (17:915); 22,23,57. 
 
 The Steamboat Cheesman v. Two oi Admiralty rules 34, 43 ; The 
 
 Ferry Boats, 2 Bond, 369, Fed. Lottawana, 21 Wall. 558, 609 (22: 
 
 CaSt No. 2,633; Town v. The West- 654). 
 
 ern Metropolis, 24 Fed. Cas. 93; 92 The Lottawana, 21 Wall. 558, 
 
 The Hungaria, 41 Fed. R. 112; The 609(22:654), 
 
CHAPTER XIV. 
 
 THE COMMON-LAW AND EQUITY JURISDICTION OF THE DIS- 
 TRICT COURTS OF THE UNITED STATES. 
 
 S 605. District courts are courts 
 of common law, equity 
 and admiralty. 
 
 606. District courts are govern- 
 ment courts. 
 
 ^07. Statutes defining the juris- 
 diction of the district 
 courts. 
 
 ■608. Same — Additional legisla- 
 tion — ^Revised Statutes. 
 
 609. Criminal jurisdiction of 
 the district courts. 
 
 •610. The district courts have 
 no common-law jurisdic- 
 tion of crimes. 
 
 '611. Suits for penalties and for- 
 feitures. 
 
 612. Same — ^Action of debt for 
 pecuniary penalty. 
 
 ■613. Same — Exclusive jurisdic- 
 tion of the district courts 
 as to penalties Incurred 
 under the custom laws. 
 
 614. Same — Actions for penal- 
 ties under federal stat- 
 utes prohibiting impor- 
 tation of foreigners un- 
 der contract to labor. 
 
 '615. Suits at common law by 
 the United States or of- 
 ficers thereof. 
 
 616. Same — Suits by receivers 
 of national banks. 
 
 ■617. Same — Same — Jurisdic- 
 tion to order receivers to 
 sell or compound debts, 
 and sell real and per- 
 sonal property. 
 
 § 61S. Same — ^Action of debt on 
 postmaster's bond. 
 
 • 619. Suits in equity to enforce 
 internal revenue tax 
 liens. 
 
 620. Suits for penalties and 
 
 damages for frauds 
 against the United 
 States. 
 
 621. Suits arising under the 
 
 postal laws. 
 
 622. Same — Suits in equity to 
 
 set aside fraudulent con- 
 veyances. 
 
 623. Jurisdiction of seizures on 
 
 land and waters not nav- 
 igable. 
 
 624. Condemnation of property 
 
 used in aid of insurrec- 
 tion. 
 
 625. Suits by assignees of de- 
 
 bentures, 
 
 626. Suits for injuries resulting 
 
 from conspiracies in 
 violation of the "civil 
 rights" act. 
 
 627. Same — Certain provisions 
 
 of the "civil rights" leg- 
 islation declared uncon- 
 stitutional. 
 
 628. Suits to redress depriva- 
 
 tion of rights secured by 
 constitution and laws of 
 the United States. 
 
 629. Suits brought by aliens for 
 
 torts in violation of the 
 laws of nations or trea- 
 ties. 
 
§ 605 
 
 JURISDICTION OF DISTEICT COUKTS. 
 
 461 
 
 §. 630. Same — When the briginal 
 act may be looked to in 
 aid of construction. 
 
 631. Suits against consuls and 
 
 vice-consuls. 
 
 632. Suits against the govern- 
 
 ment under "the Tucker 
 Act." 
 
 633. Same — Set-offs and coun- 
 
 terclaims. 
 
 634. Same — Limitation of suits 
 
 — Six years. 
 
 635. Same — Cases "sounding in 
 
 tort" excluded by "the 
 Tucker Act." 
 
 636. Same — Four classes of 
 
 cases contemplated by 
 "the Tucker Act." 
 
 637. Same — Same — Implied con- 
 
 tracts 
 
 638. Same — Suits by marshal to 
 
 recover disbursements 
 made to pay court bail- 
 iffs. 
 
 639. Same — Suit for salvage 
 
 when the government is 
 benefited by the salvage 
 service. 
 
 640. Jurisdiction of judicial 
 
 proceedings by the fed- 
 eral government to con- 
 demn private property 
 for public use. 
 
 641. Same — A proceeding to 
 
 condemn private prop- 
 erty for public use is a 
 suit at common law. 
 
 642. Jurisdiction of suits under 
 
 the act to prevent unlaw- 
 ful occupancy of the 
 public lands. 
 § 643. Jurisdiction of actions for 
 damages under the inter- 
 state commerce act. 
 
 644. Jurisdiction to issue writs. 
 
 of mandamus to compel 
 equal facilities to ship- 
 pers. 
 
 645. Same — Foundation of the 
 
 right to the writ of man- 
 damus. 
 
 646. Same — Same — ^Purposes of 
 
 the interstate commerce 
 act. 
 
 647. Same — Plea in abatement — 
 
 Forpier suit pending. 
 
 648. Same — Increased jurisdic- 
 
 tion of the district courts 
 by the last amendment 
 to the act. 
 
 649. Seizure and destruction of 
 
 obscene books, pictures 
 and other articles im- 
 ported from foreign 
 • countries in violation of 
 law. 
 
 650. Jurisdiction of actions to 
 
 recover penalties for vio- 
 lations of the Safety Ap- 
 pliances Act. 
 
 651. Jurisdiction of suits pend- 
 
 ing in territorial courts 
 upon admission of the 
 territory as a state. 
 
 652. All issues of fact in actions 
 
 at law tried by jury. 
 
 § 605. District courts are courts of common law, equity and 
 admiralty. — ^By the acts of congress constituting the judicial 
 system of the United States, and vesting the judicial power of 
 the government, the district courts are made courts of common 
 law, and equity, and admiralty and maritime jurisdiction, and 
 in all cases at common laAV the trial is by jury, and in all cases 
 of equity, and admiralty and maritime jurisdiction, the trial 
 is by the court without the intervention of a jury ; and although 
 
462 
 
 FEDERAL PROCEDURE AT LAW. 
 
 § 606 
 
 the three jurisdictions are vested in the same tribunal they are 
 as distinct from each other as if they were vested in different 
 tribunals, and^ cannot be blended, but the remedies common 
 to each jurisdiction must be separately pursueb.' 
 
 § 606. District courts are government courts. — The district 
 courts occupy, in the federal judicial system, the position of 
 government courts, having and exercising jurisdiction of crimes 
 against the government, and also of civil actions touching the 
 public revenues, and for penalties and forfeitures, and of seiz- 
 ures, arising out of the customs and revenue laws ; ^ and in 
 their jurisdiction in the latter respect they bear a strong anal- 
 ogy to the English exchequer.' 
 
 1 1 TJ. S. Stat, at L. ch. 9, pp. 73- 
 79; U. S. Rev. Stat. sees. 563, 566, 
 •3207; The Sarah, 8 Wheat. 391, 
 396 (5:644) ; Ex parte Phillips, 101 
 V. S. ■ (25:781). 
 
 2U. S. Rev. Stat. sec. 563; 1 TJ. 
 S. Stat, at L. ch. 20, sec. 9, pp. 73- 
 79; Matthews v. Offley, 3 Sumn. 
 115, Fed. Cas. 9,290. 
 
 3 2 Chitty's Prac. 314, 315, 316, 
 389-402, 450, 451. 
 
 "The court of exchequer, as 
 originally constituted, was a court 
 of record merely for the hearing 
 and determining of matters re- 
 lating to the revenue of the 
 crown; and in many respects 
 revenue questions must exclu- 
 sively be heard and determined 
 either on the common-law or 
 equity side of this court and not 
 in chancery; and hence it is sup- 
 posed by other courts that this 
 court is more eligible for the de- 
 cisions upon revenue questions, 
 and may be so, subject to the pos- 
 sibility of bias in favor of the 
 crown. The exchequer was orig- 
 inally divided into eight courts — 
 as: the court of pleas (still 
 the proper law court). * * * 
 The first specified court, viz: the 
 court of pleas. Is the exchequer 
 
 court df law, and was properly 
 and anciently the court in which 
 debts or duties to the king were 
 to be recovered, usually by infor- 
 •mation by the attorney-general, 
 and actions by and against the 
 oflBcers of this court, and the 
 king's actual debtors, and against 
 actual prisoners in the Fleet 
 prison of the court, were always 
 sustainable in this coart. Magna 
 Charta prohibited real, mixed and 
 personal actions to be brought 
 elsewhere than in the common 
 pleas, and the statute of Rutland, 
 -10 Ed. I., in affirmance, as is said, 
 of the common law, enacted that 
 'no plea shall be held in the ex- 
 chequer unless it specially con- 
 corn the king or his ministers. 
 * * * Anciently equity suits 
 could only be instituted in this 
 court in revenue matters, and 
 when a party was a debtor to the 
 crown, or was a clergyman bound 
 to pay to the feing his first fruits 
 and annual tenths.' 2 Chitty's 
 Prac. 389, 390, 391, 450, 451, 
 supra " 
 
 In Matthews v. Offley, 3 Sumn. 
 115, Fed. Cas. 9,290, supra. Story, 
 justice, said: 
 
 "Upon general principles, where 
 
§ 607 JURISDICTION OF DISTRICT COURTS. ' 463 
 
 § 607. Statutes defining the jurisdiction of tihe district 
 courts. — The jurisdiction of the district courts was first defined 
 by the ninth section of the original judiciary act,* and it has, 
 since its enactment, continued to be the basis of that jurisdic- 
 tion, down to the present time.^ That section is as follows : 
 
 "Sec. 9. And be it further enacted, That the district courts 
 shall have, exclusively of the courts of the several states, 
 cognizance of all crimes and offenses that shall be cognizable 
 under the authority of the United States, committed within 
 their respective districts, or upon the high seas, where no other 
 punishment than whipping, not exceeding thirty stripes, a fine 
 not exceeding one hundred dollars, or a term of imprisonment 
 not exceeding six months, is to be inflicted; and shall also have 
 exclusive original cognizance of all civil causes of admiralty 
 and maritime jurisdiction, including all seizures under laws of 
 impost, navigation or trade of the United States, where the 
 seizures are made on waters which are navigable from the sea 
 by vessels of ten or more tons burthen, within their respective 
 districts, as well as upon the high seas; saving to suitors, in 
 all cases, the right of a common-law remedy, where the com- 
 mon law is competent to give it; and shall also have exclusive 
 original cognizance of all seizures on land, or other waters 
 than as aforesaid, made, and of all suits for penalties and for- 
 feitures incurred, under the laws of the United States. And 
 shall also have cognizance, concurrent with the courts of the 
 several states, or the circuit courts, as the case may be, of all 
 causes where an alien sues for a tort only in violation of the 
 law of nations or a treaty of the United States. And shall also 
 
 a pecuniary penalty or forfeiture has been held, that a suit will not 
 Is Inflicted for any public offense lie by a common Informer for 
 or wrong, it seems clear that the such a penalty, unless also spe- 
 action ix) recover the penalty or cially allowed by statute, for it is 
 forfeiture must be brought in the properly recoverable as a debt in 
 name of the government, and not a court of revenue by the govern- 
 in the name of a private party, ment, and is in no just sense a 
 unless some other mode for the criminal proceeding." 
 recovery is prescribed by the stat- * 1 U. S. Stat, at L. ch. 20, 
 ute; and the usual remedy of a sec. 9, pp. 73-79. 
 pecuniary penalty is an action Or s United States v. Mooney, 116 
 information of debt by the gov- U. s. 104 (29:550); Lees v. United 
 ernment itself. This is the rule States, 150 U. S. 476, 478 (37: 
 of the common law; therefore. It 
 
464 FEDEKAL PKOCEDUEB AT LAW. § 610 
 
 have cognizance, concurrent as last mentioned, of all suits at 
 common laM', where the United States sue, and the matter in 
 dispute amounts, exclusive of costs, to the sum or value of one 
 hundred dollars. And shall also have jurisdiction exclusively 
 of the courts of the several states, of all suits against consuls 
 or vice-consuls, except for ofiEenses above the description afore- 
 said. And the trial of issues in fact, in the district courts, 
 in all causes, except civil causes of admiralty and maritime 
 jurisdiction, shall be by jury." 
 
 § 608. Same — Additional legislation — Revised statutes.^ 
 Prior to the last authoritative revision of the federal statutes, 
 running through the whole period from the organization of the 
 government down to the time of the revision, there was a great 
 mass of federal legislation affecting the jurisdiction of the 
 district courts, all of which was carried into the revised stat- 
 utes, and an attempt was made to enumerate and state in one 
 section ° all the different subjects of which those courts have 
 cognizance; and since the revision there has been additional 
 legislation, vesting jurisdiction in the district courts, and it is 
 the purpose of this chapter to state succinctly the various 
 heads of this jurisdiction, with a reference to the principal 
 statutes and leading decisions. 
 
 § 609. Criminal jurisdiction of the district courts. — The dis- 
 trict courts have original jurisdiction (1) of all crimes and 
 offenses cognizable under the authority of the United States, 
 committed within their respective districts, or upon the high 
 seas, the punishment of which is not capital, except in the cases 
 mentioned in section fifty-four hundred and twelve, title 
 "crimes;"' and (2) of all cases arising under any act for the 
 punishment of piracy, when no circuit court is held in the 
 district of such court.* 
 
 § 610. The district courts have no common-law jurisdiction 
 of crimes. — It is well settled that there are no common-law 
 
 1150); Helwig v. United States, 'U. S. Rev. Stat. sec. 563, cl. 1; 
 
 188 U. S. 605, 619 (47:614); The U. S. Comp. Stat. 1901, 455, 456; 
 
 Cassius, 2 Dall. 365 (1:417); 4 Fed. Stat. Anno. 218, 219. 
 
 Evans v. Bollen, 4 Dall. 342 (1. sU. S. Rev. Stat. sec. 563, cl. 2; 
 
 859). IT. S. Comp. Stat. 1901, 456; 4 
 
 8U. S. Rev. Stat. 563, 4 Fed. Fed. Stat. Anno. 219. 
 Stat. Anno. 218-236; U. S. Comp. 
 Stat. 1901, pp. 455-460. 
 
§ 612 
 
 JURISDICTION OP DISTRICT COURTS. 
 
 465 
 
 offenses against the United States; the criminal jurisdiction 
 of the courts of the United States is wholly derived from fed- 
 eral legislation; it devolves upon congress to define what are 
 crimes against the general government, to fix the proper pun- 
 ishment, and to confer jurisdiction for their trial, and tha 
 execution of the judgments rendered upon such trial." 
 
 § 611. Suits for penalties and forfeitures. — The district 
 courts have original jurisdiction of all suits for the recovery 
 of penalties and forfeitures incurred under any law of the 
 United States.'* j 
 
 § 612. Same — ^Action of debt for pecuniary penalty. — The 
 proper form of action for pecuniary penalties and forfeitures 
 incurred under the federal statutes is a civil action or infor- 
 mation of debt, brought in the name of the United States, and 
 that is the form of action adopted at an early day and fol- 
 lowed in the district courts for such penalties and forfeitures.'"- 
 The action of debt lies whenever a sum certain is due the plain- 
 tiff from the defendant, or a sum which can readily be rendered 
 
 9U. S. V. Hudson, 7 Cranch, 32 
 (3:259); V. S. v. Baton, 144 U. 
 S. 677, 688 (36:591); U. S. v. 
 Coolidge, 1 Wheat. 415 (4:124); 
 U. S. V. Britton, 108 U. S. 199. 206 
 (27:698, 700); Manchester v. Mas- 
 sachusetts, 139 U S. 240, 263 (35: 
 159); Jones v. U. S., 137 V. S. 
 202, 211 (34:691, 695); Peters v. 
 TJ. S., 36 C. C. A. 107, 109; U. S. 
 V. Walsh, 5 Dill. 60, Fed. Cas. 16,- 
 636; XJ. S. V. Martin, 4 Cliff. 157, 
 Fed. Cas. 15,728; In re Greene, 52 
 Fed. R. 104; XJ. S. v. Lewis, 36 
 Fed. R. 449; U. S. v. Bevans, 3 
 Wheat. 337, 391 (4:404); U. S. v. 
 Wilteberger, 5 Wheat. 76 (5:37). 
 
 10 U. S. Rev. Stat. sec. 563, cl. 3; 
 V. S. v. Brougher, 6 McLean, 277, 
 Fed. Cas. 14,627; U. S. v. Wil- 
 letts, 5 Ben. 220, Fed. Cas. 16,699; 
 Matthews r. Offley, 3 Sumn. 115, 
 Fed. Cas. 9,290; U. S. v. Colt, Pet. 
 (C. C.) 145, Fed. Cas. 14,839; The 
 Nashville, 4 Biss. 188, Fed. Cas. 
 10,023; Adams v. Woods, 2 
 30 
 
 Cranch, 336 (2:297); Ex parte 
 Marquand, 2 Gall. 552, Fed. Cas. 
 9,100; Rosenburg v. Union Iron 
 Works, 109 Fed. R. 844;; Lees v. 
 U. S., 150 U. S. 476 (37:1150); 
 U. S. V. Mooney, 11 Fed. R. 476; 
 U. S. V. Mooney, 116 U. S. 106 
 (29:550); Helwig v. TJ. S., 188 U. 
 S. 605 (47:614); TJ. S. v. Whit- 
 combe Metallic Bedstead Co., 4S 
 Fed. R. 44; TJ. S. v. Mexican Na- 
 tional Ry. Co., 40 Fed. R. 769; In 
 re Rosey, 6 Ben. 507, Fed. Cas. 
 12,066; Jacobs v. U. S., 1 Brock.. 
 520, Fed. Cas. 7,157. 
 
 "Matthews v. Offley, 3 Sumn. 
 115, Fed. Cas. 9,290; V. S. v. Colt, 
 Pet. (C. C.) 145, Fed. Cas. 14,839; 
 In re Rosey, 6 Ben. 507, Fed. Cas. 
 12,066; Jacobs v. TJ. S., 1 Brock. 
 520, Fed. Cas. 7,157; The Nash- 
 ville, 4 Biss. 188, Fed. Cas. 10,023; 
 U. S. V. Willetts, 5 Ben. 220, Fed. 
 Cas. 11,699; Chaffee v. U. S., 18 
 Wall. 561 (21:908). 
 
466 FEDERAL PROCEDURE AT LAW. § 615 
 
 certain — a sum requiring no future valuation to settle the 
 amount. It is not necessarily founded on a contract. It is 
 immaterial in what manner the obligation was incurred, or by 
 what it is evidenced, if the sum owing is capable of being read- 
 ily and definitely ascertained.^^ 
 
 § 613. Same — Exclusive jurisdiction of the district courts 
 as to penalties incurred under the custom laws. — The district 
 courts of the United States have original exclusive jurisdiction 
 of all civil actions or informations of debt to recover pecuniary 
 penalties for violations of the custom laws of the United States, 
 the circuit courts having no jurisdiction in that class of cases.^' 
 
 § 614. Same — Actions for penalties under federal statutes 
 prohibiting importation of foreigners under contract to labor. 
 The district courts are vested with jurisdiction of civil actions 
 of debt for the recovery of pecuniary penalties imposed for 
 violations of the federal statutes prohibiting the importation 
 or migration of foreigners, and aliens into the United States 
 under promise or agreement to perform labor or service of 
 any kind, skilled or unskilled, in the United States ; ^* and, by 
 the last act on the subject, the circuit courts are invested with 
 full concurrent jurisdiction with the district courts ia all 
 causes, criminal and civil, arising under the provisions of the 
 act.^= 
 
 § 615. Suits at common law by the United States or ofQcers 
 thereof. — The district courts have original jurisdiction, con- 
 current with the pireuit courts, of all suits at common law, 
 
 12 U. S. V. Colt, Pet. (C. C.) 145, 3, i, 5, 6, 7, 8, 9, 29, pp. 1213- 
 ~Fed. Cas. 14,839; Stockwell T. 1222; 3 Fed. Stat. Anno. 298-307; 
 
 U. S., 13 Wall. 531, 568 (20:491); U. S. Comp. Stat. Supplement 
 
 Chaffee v. U. S., 18 "Wall. 561 (21: 1905, pp. 274-289; Lees v. United 
 
 908). States, 150 U. S. 476 (37:1150); 
 
 13 U. S. V. Mooney, 11 Fed. R. Rosenberg v. Union Iron Works, 
 476; U. S. V. Mooney, 116 U. S. 109 Fed. R. 844; United States v. 
 106 (29:550); Helwig v. U. S., 188 Whitcomb Metallic Bedstead Co., 
 U. S. 605 (47:614). 45 Fed. R. 44; United States v. 
 
 1* 23 U. S. Stat, at L. ch. 164, Mexican National Ry. Co., 40 Fed. 
 
 pp. 332, 333; 24 U. S. Stat, at L. R. 769; U. S. Rev. Stat. sec. 563, 
 
 -cb. 220, pp. 414, 415; 25 U. S. Stat. cl. 3; 4 Fed. Stat. Anno. 219; U. S^ 
 
 at L. ch. 1210, sec. 1, pp. 566, 567; Comp. Stat. 1901, p. 456. 
 
 26 U. S. Stat, at L. ch. 551, pp. is 32 U. S. Stat, at L. part 1, 
 
 1084-1086; 27 U. S. Stat, at L. ch. 1012, sees. 1, 2, 3, 4, 5, 6, 7, 8, 
 
 ch. 206, pp. 569-571; 32 U. S. Stat. 9, 29, pp. 1213-1222. 
 at L. part 1, ch. 1012, sees. 1, 2, 
 
§ 616 JURISDICTION OF DISTRICT COURTS. 467 
 
 brought by the United States, or any officer thereof, under the 
 authority of any act of congress, authorizing them to sue, with- 
 out regard to the amount in controversy.^" 
 
 § 616. Same — Suits by receivers of national banks. — ^Ap- 
 pointments of receivers of insolvent national banks, made by 
 the comptroller of the currency, for the purpose of winding up 
 the affairs of such banks, as provided by the national banking 
 act, are presumed to be made with the concurrence and ap- 
 proval of the secretary of the treasury, and are made by the 
 head of a department, within the meaning of the constitution ; 
 and the receiver, being appointed pursuant to an act of con- 
 gress to execute duties prescribed by that act, is, in the execu- 
 tion of those duties, an agent and officer of the United States., 
 and actions brought by him to recover assessments duly laid 
 upon the stockholders, and necessary to provide for the pay- 
 ment of the debts of the bank, and actions to collect the assets 
 of the bank from its delinquent debtors, are suits at common 
 law brought by an officer of the United States, suing under the 
 authority of an act of congress, of which the district and cir- 
 cuit courts have concurrent jurisdiction, without regard to the 
 citizenship of the parties or the amount in controversy.^^ 
 
 16 U. S. Rev. Stat. sec. 563, cl. 4 ; current with, the courts and mag- 
 
 4 Fed. Stat. Anno. 220; U. S. istrates of the several states, and 
 
 €omp. Stat. 1901, p. 456; Price v. the circuit courts of the United 
 
 Abbott, 17 Fed. R. 506; Hender Slates, of all suits at common law, 
 
 V. Railroad Co., 26 Fed. R. 677; where the United States, or any 
 
 Stephens v. Bernays, 41 Fed. R. officer thereof, under authority of 
 
 401; Frelinghuysen v. Baldwin, any act of congress, shall sue, al- 
 
 12 Fed. R. 395; Armstrong v. Bt- though the debt, claim, or other 
 
 tlesohn, 36 Fed. R. 209; Fisher v. matter in dispute, shall not 
 
 Yoder, 53 Fed. R. 565; Myers v. amount to one hundred dollars." 
 
 Hittinger, 94 Fed. R. 370 ; Aldrich i' Price, Receiver, v. Abbott, 17 
 
 v. Campbell, 97 Fed. R. 663 ; Henry Fed. R, 50G: Hendee, Receiver, v. 
 
 V. Sowles, 28 Fed. R. 481; Stanton R. Co., 26 Fed. R. 677; Stephens 
 
 V. Wilkinson, 8 Ben. 377, Fed. Cas. v. Bernays, 41 Fed. R. 481; Fre- 
 
 13,299; 3 U. S. Stat, at L. ch. 101, linghuysen v. Baldwin, 12 Fed. R. 
 
 sec. 4, p. 1815; Schofield v. Pal- 395; Armstrong v. Bttlesohn, 36 
 
 mer, 134 Fed. R. 573. Section 4 Fed. R. 209; Fisher v. Yoeder, 53 
 
 of the Act of March 3, 1815, Fed. R. 565; Thompson v. Pool, 
 
 3 V. S. Stat, at L. ch. 101, p. 70 Fed. R. 725, Short v. Hepburn, 
 
 •245, supra, is as follows: "That 75 Fed. R. 113; Brown v. Smith, 
 
 the district courts of the United 88 Fed. R. 565; Meyers v. Het- 
 
 States shall have cognizance con- tinger, 94 Fed. R. 370; Aldrich v. 
 
468 PEDER.\L PROCEDURE AT LAW. § 619 
 
 § 617. Same — Same — Jurisdiction to order receiver to sell 
 or compound debts and sell real and personal property. — The 
 
 national banking act declares that when a receiver has been 
 appointed of an insolvent bank, "such receiver, under the 
 direction of the comptroller shall take possession of the books,, 
 records, and assets of every description of such association,, 
 collect all debts, dues, and claims belonging to it, and, upon 
 the order of a court of record of competent jurisdiction, may 
 sell or compound all bad or doubtful debts, and, on a like or- 
 der, may sell all the real and personal property of such asso- 
 ciation, on such terms as the court shall direct ; " ^^ and the fed- 
 eral district court is a court of competent jurisdiction to make 
 the orders mentioned in the statute.^'' 
 
 § 618. Same — Action of debt on postmaster's bond. — The 
 district courts have jurisdiction, concurrent with the circuit 
 courts, of an action of debt brought by the postmaster-general,, 
 against the postmaster on his official bond.^" 
 
 § 619. Suits in equity to enforce internal revenue tax liens. 
 The federal statutes provide a scheme for the assessment and 
 levy of the internal revenue tax,'^^ make such tax a lien upon 
 all the property, real and personal, belonging to such persons 
 as are liable to pay any such tax and neglect or refuse to pay 
 the same after demand,-^ and further provide that in any case 
 where there has been a refusal or neglect "to pay the tax, and 
 it has become necessary to seize and sell real estate to satisfy 
 the same, the commissioner of internal revenue may direct a 
 bill in chancery to be filed in a district or circuit court of the 
 United States, to enforce the lien of the United States for the 
 taxes upon any real estate, or to subject any real estate owned 
 
 Campbell, 97 Fed. R. 663; Piatt 20 Postmaster-General v. Early, 
 
 V. Beach, 2 Ben. 303, Fed. Cas. 12 Wheat. 136 (6: 577); Dax v. 
 
 11,215; Stanton v. Wilkeson, 8 Postmaster-General, 1 Pet. 323 
 
 Ben. 357, Fed. Cas. 13,299; Gibson (7:162); Postmaster-General v. 
 
 V. Peters, 150 TJ. S. 342, 348 (37: Furber, 4 Mason, 333, Fed. Cas. 
 
 1104). 11,308; United States v. Green, i 
 
 18 U. S. Rev. Stat. Sec. 5,234; Mason, 434, Fed. Cas. 15,258. 
 Wallace v. Hood, 89 Fed. R. 11; 21 U. S. Rev. Stat. sees. 3172- 
 Turner v. Richardson, 180 U. S. 3185. 
 
 87, 92 (45:438). 22 u. S. Rev. Stat. sec. 3186. 
 
 19 In re Piatt, 1 Ben. 534, Fed. 
 Cas. 11,211. 
 
§ 622 JURISDICTION OF DISTRICT COURTS. 469 
 
 by the delinquent, or in which he has any right, title, or in- 
 terest, to the payment of such tax.^^ This statute, of course, 
 vests in the district and circuit courts concurrent jurisdiction 
 of such suits.^* 
 
 § 620. Suits for penalties and damages for frauds against 
 the United States. — It is provided by statute that any person, 
 not in the military or naval forces of the United States, who 
 shall make or cause to be made or presented any false, ficti- 
 tious or fraudulent claim against the government, or shall use 
 or cause to be used such claim, for the purpose of obtaining 
 its payment or approval, knowing the same to be fraudulent, 
 or who enters into any conspiracy to defraud the government, 
 or who knowingly purchases or receives in pledge for any 
 obligation or indebtedness from any person in the military or 
 naval service, any arms, clothing, equipments, or other publie 
 property, such person not having the lawful right to sell the 
 same, shall forfeit and pay to the United States the sum of two 
 thousand dollars, and, in addition, double the amount of 
 damages which the United States may have sustained by 
 reason of such acts, together with the costs of suit, and the 
 forfeiture and damages shall be sued for in the same suit;^' 
 and the district courts have jurisdiction of suits to recover 
 such forfeitures, penalties and damages.^" 
 
 § 621. Suits arising under the postal laws. — The district 
 courts have jurisdiction, concurrent with the circuit courts 
 of all actions, suits and causes arising under the postal laws 
 of the United States." 
 
 § 622. Same — Suits in equity to set aside fraudulent con- 
 veyances. — The district courts have jurisdiction, concurrent 
 with the circuit courts, upon the direction of the department 
 of justice, of bills in equity, to set aside fraudulent convey- 
 ances or trusts, and to exercise any other legitimate powers 
 of a court of equity, for the purpose of obtaining satisfaction 
 of any judgment for money due the post office department, 
 
 23 U. S. Rev. Stat. sec. 3207; 3 5438; 2 Fed. Stat. Anno. 29, 30, 31. 
 
 I'ed. Stat. Anno. 576-592. 26 u. S. Rev. Stat. sec. 563, cl. 6; 
 
 24 u. S. Rev. Stat. sec. 563, cl. 5; ib. sec. 3491. 
 
 ib. sec. 629, cl..4. 27 u. S. Stat. sec. 563, cl. 7; ib. 
 
 23 U. S. Rev. Stat. sees. 3490 and sec. 629, cl. 4. 
 
470 FEDERAL PEOCEDUEE AT LAW. § 624 
 
 when proceedings at law for the collection of such judgment 
 have proved unavailing.^* 
 
 § 623. Jurisdiction of seizures on land and waters not navi- 
 gable. — The district courts, sitting as courts of common law, 
 have jurisdiction "of all seizures on land, and on waters not 
 within the admiralty and maritime jurisdiction" — that is, on 
 waters not navigable. Such seizures are proceedings at com- 
 mon law, and in them the court sits as a court of common law, 
 and proceeds as such, according to the course of the English 
 exchequer on information in rem, and the trial of all issues 
 of fact is by jury; and the judgment of the court is reviewed 
 by the appellate courts on writ of error only, and not on ap- 
 peaL^** 
 
 § 624. Condemnation of property used in aid of insurrec- 
 tion. — The district courts, (1) as courts of common law when 
 the seizure is on land or on waters not navigable, and (2) as 
 prize courts in admiralty when the seizure is on navigable 
 waters, have jurisdiction of proceedings to condemn any prop- 
 erty, real or personal, used in aid of any insurrection against 
 the government of the United States ; ^^ and proceedings for 
 
 28 U. S. Rev. Stat. sec. 382; 4 of the district court; but where 
 Fed. Stat. Anno. 773; TJ. S. Comp. the seizure is made on land, 
 Stat. 1901, p. 213. the suit, though in the form of a 
 
 29 1 TJ. S. Stat, at L. oh. 20, sec. libel of information, Is an action 
 9, pp. 73, 79; TJ. S. Rev. Stat. sec. at common law, and the claimants 
 563, cl. 8; The Sarah, 8 Wheat. are entitled to trial by jury. 
 291,396 (5:644); Morris v. United "Seizures, when made on wa- 
 States, 8 Wall. 507, 512 (19:481); ters which are navigable from 
 I'riedenstein v. TJ. S., 125 TJ. S. the sea by vessels of ten or more 
 224, 240 (31:736); Origet v. TJ. S., tons burden, are exclusively cog- 
 125 TJ. S. 240 247 (31:743); Llli- nizable in the district courts, sub- 
 enthal v. TJ. S. 97 TJ. S. 237, 272 ject to appeal, as provided by law; 
 (24:901); U. S. v. 16 Hogsheads but all seizures on land or on 
 Tobacco, 2 Bond, 137, Fed. Cas. waters not navigable, and all 
 16,302; TJ. S. v. One Distillery, 4 suits instituted to recover penal- 
 Biss, 26, Fed. Cas. 15,929; TJ. S. ties and forfeitures incurred, ex- 
 v. 396 Bbls. Distilled Spirits, Int. cept for -seizures on navigable 
 Rev. Rec. 114, Fed. Cas. 16,502; waters, must be prosecuted as 
 U. S. V. 1150% Pounds Celluloid, other common-law suits, and can 
 82 Fed. R. 627. only be removed into this (the 
 
 "Where the seizure Is made on supreme) court by writ of error." 
 
 navigable waters, within the 9th — Clifford, Justice, in Morris v. U. 
 
 Section of the Judiciary Act, the S., supra, 
 
 case belongs to the instance side soTJ. S. Rev. Stat. 563, cl. 9; 
 
§ 627 JURISDICTION OF DISTRICT COURTS. 471 
 
 the condemnation of such property captured whether on the 
 high seas or elsewhere out of the limits of any judicial district, 
 or within any district, may be prosecuted in any district where 
 the same may be seized, or into which it may be taken and pro- 
 ceedings first instituted. ^^ 
 
 § 625. Suits by assignees of debentures. — The district courts 
 have jurisdiction, concurrent with the circuit courts, of all 
 suits by the assignee of any debenture for drawback of duties, 
 issued under any law for the collection of duties, against the 
 person to whom such debenture was originally granted, or 
 against any indorser thereof, to recover the amount of such 
 debenture. ^^ 
 
 § 626. Suits for injuries resulting from conspiracies in vio- 
 lation of the "Civil Rights" Act. — The district courts have 
 jurisdiction, concurrent with the circuit courts, and exclusive 
 of the state courts, of all suits authorized by law to be brought 
 by any person for the recovery of damages on account of any 
 injury to his person or property, or of the deprivation of any 
 right or privilege of a citizen of the United States, by an act 
 done in furtherance of any conspiracy mentioned in section 
 nineteen hundred and eighty of the United States revised Stat- 
 utes, title, "Civil Rights." == 
 
 § 627. Same — Certain provisions of the "Civil Rights" leg- 
 islation declared unconstitutional. — It was provided by sec- 
 tions one and two of the act of March 1, 1875, entitled "an 
 act to protect all citizens in their civil and legal rights," that: 
 all persons within the jurisdiction of the United States shall 
 be entitled to the full and equal enjoyment of the .accommoda- 
 tions, advantages, facilities and privileges of inns, public con- 
 veyances on land or water, theatres and other places of pub- 
 
 Xf. S. Rev. Stat. sec. 629, el. 6; S. v. Stevenson, 3 Ben. 119, Fed. 
 
 Xr. S. Rev. Stat. sec. 5308; 18 U. Cas. 16,396; Titus v. V. S., 20 
 
 S. Stat, at L. ch. 80;-sec. 1, p. 317; Wall. 475, 485 (22:400). 
 
 Union Ins. Co. v. U. S., 6 Wall. 3i XJ. S. Rev. Stat. sec. 735; 6 
 
 759, 766 (18:879); Armstrong Fed. Stat. Anno. 70. 
 
 Foundry v. XJ. S., 6 Wall. 766, 770 32 Rev. Stat. sec. 563, cl. 10; sec. 
 
 (18:882); The St. Louis Street 629, cl. 8. 
 
 Foundry v. XJ. S., 6 Wall. 770 ss u. S. Rev, Stat. sec. 563, cl.. 
 
 (18:884); Confiscation Cases, 7 11; ib. sec. 629, cl. 17; ib. sec. 
 
 Wall. 454, 463 (19:196); Morris v. 1980; 18 U. S. Stat, at L. ch. 114, 
 
 XJ. S., 8 Wall. 507, 512 (19:481); sec. 3, p. 335; 4 Fed. Stat. Anno. 
 
 4 Fed. Stat. Anno. 234; XJ. S. 234, 250. 
 
 Comp. Stat. 1901, pp. 457, 3614; U. 
 
472 FEDERAL PEOCEDUEE AT LAW. § 628 
 
 lie amusement, subject only to the conditions and limitations 
 established by law and applicable alike to citizens of every 
 race and color regardless of any previous condition of servi- 
 tude; and that persons denying to any citizen, except for rea- 
 sons by law applicable to citizens ■ of every race and color, 
 and regardless of any previous condition of servitude, the full 
 enjoyment of any of the accommodations, advantages, facili- 
 ties or privileges enumerated, or should aid or incite such 
 denial, should forfeit and pay to the aggrieved person the sum 
 of five hundred dollars to be recovered in an action of debt 
 with costs, and should also be guilty of a misdemeanor and 
 liable to fine or imprisonment.^* These provisions were held 
 unconstitutional and void, upon the ground that the fourteenth 
 amendment is an inhibition upon the states, and does not 
 authorize congress to create a code of municipal laws for the 
 regulation of private rights, and that the thirteenth amend- 
 ment relates only to slavery and involuntary servitude, and 
 by its own unaided force abolishes slavery and establishes uni- 
 versal freedom, and the denial of equal accommodations in 
 inns, public conveyances and places of public amusement im- 
 poses no badge of slavery upon the aggrieved party.'^ 
 
 § 628. Suits to redress deprivation of rights secured by con- 
 stitution and laws of the United States. — The district courts 
 have jurisdiction, concurrent with the circuit courts, but ex- 
 clusive of the state courts, of all suits at law or in equity 
 authorized by law ^^ to be brought by any person to redress the 
 deprivation, under color of any law, ordinance, regulation, 
 custom, or usage of any state, of any right, privilege, or im- 
 munity secured by the constitution of the United States, or 
 of any right secured by any law of the United States to any 
 person within the jurisdiction thereof.^^ The jurisdiction here 
 given is evidently based on section nineteen hundred and sev- 
 enty-nine of the Revised Statutes, and it seems doubtful 
 whether that section is now in force.''^ 
 
 84 18 U. S. Stat, at L. ch. 114, sec. 3, p. 335; 4 Fed. Stat. Anno, 
 
 sees. 1 and 2 p. 335. 234, 249; 1 Fed. Stat. Anno. 805, 
 
 30 Civil Rights Cases, 109 U. S. 806, 807; V. S. Stat. Comp. 1901, 
 
 3, 62 (27:839). pp. 506, 507. 
 
 S6 U. S. Rev. Stat. sec. 1979. ss Holt v. Indiana Mfg. Co., 176 
 
 3TU. S. Rev. Stat. sec. 563, cl. U. S. 68, 73 (44:374). 
 
 12; IT. S. Rev. Stat. sec. 629, f^OTE.— Repealed Statutes: The 
 
 cl. 16; 18 U. S. Stat, at L. ch. 114, legislation upon which clauses 13 
 
§ 630 
 
 JURISDICTION OF DISTEICT COURTS, 
 
 473 
 
 § 629. Suits brought by aliens for torts in violation of the 
 law of nations and treaties. — The ninth section of the original 
 judiciary act provides that the district courts "shall also have 
 cognizance, concurrent with the courts of the several states, 
 or the circuit courts, as the case may be, of all causes where an 
 alien sues for a tort only in violation of the law of nations or a 
 treaty of the United States. "^'' The revised statutes omit 
 the clause — "concurrent with the courts of the several states, 
 or the circuit courts, as the case may be. ' ' *" 
 
 § 630. Same — When the original act may be looked to in 
 aid of construction. — The original judiciary act, and many 
 other federal statutes, were badly mutilated in the revision, 
 and, in consequence, it is sometimes necessary to refer to the 
 original act to ascertain the meaning, and the supreme court 
 
 and 14 of sec. 563 giving jurisdic- 
 tion to the district court, and 
 clauses 13 and 14 of sec. 629, giv- 
 ing jurisdiction to the circuit 
 courts has been repealed, and the 
 jurisdiction mentioned in those 
 clauses no longer exists. See the 
 following: 28 U. S. Stat, at L., 
 ch. 25. pp. 36, 37, entitled "an 
 act to repeal all statutes relating 
 to supervisors of elections and 
 special , deputy marshals, and 
 other purposes." That act repeals 
 the following sections of the U. S. 
 Rev. Statutes, viz.: 2002, 2005, 
 2006, 2007, 2008, 2009, 2010, 2011, 
 2012, 2013, 2014, 2015, 2016, 2017, 
 2018, 2019, 2020, 2021, 2022, 2023, 
 2024, 2025, 2026, 2027, 2028, 2029, 
 2030, 2031, 5506, 5511, 5512, 5513, 
 5514, 5515, 5520, 5521, 5522, 5523; 
 and "all other statutes and parts 
 of statutes relating in any manner 
 to supervisors of election and 
 special deputy marshals" were re- 
 pealed by that act, which was ap- 
 proved Feb. 8, 1894. 
 
 See also U. S. Comp. Stat. 1901, 
 1271-1273. 
 
 See also 30 U. S. Stat, at L. ch. 
 389, p. 432; U. S. Comp. Stat. 1901, 
 
 459, 1202, referring to statutes re- 
 moving disabilities imposed by 
 section 3 of the Fourteenth 
 Amendment to the Constitution. 
 
 Suits Against National Banks. 
 It is also to be noted that clause 
 15 of sec. 563, and clause 10 of 
 sec. 629 of the U. S. Rev. Statutes, 
 giving the circuit and district 
 courts jurisdiction of suits by and 
 against national banks without 
 regard to citizenship or the 
 amount in controversy, were re- 
 pealed by Act of Aug. 13, 1888, 
 ch. 866, which provides that such 
 banks for the purposes of all suits 
 by or against them shall be 
 deemed citizens of the states in 
 which they are respectively lo- 
 cated, and the circuit and district 
 courts shall not have jurisdiction 
 in suits by and against them other 
 than such as they would have in 
 cases between individual citizens. 
 25 U. S. Stat, at L.^ 436; 5 Fed. 
 Stat. Anno. 193, 194. 
 
 39 1 U. S. Stat, at L. ch. 20, 
 sec. 9, pp. 73-79. 
 
 «u. S. Rev. Stat. sec. 563, cl. 
 16; 4 Fed. Stat. Anno. 235. 
 
474 FEDERAL PEOCEDURE,AT LAW. § 631 
 
 has laid down some rules, defining the circumstances under 
 which such resort may be had. They are as follows : 
 
 (1) The Revised Statutes of the United States must be 
 treated as a legislative declaration by congress of the statute 
 law on the subjects which they embrace, on the first day of De- 
 cember, 1873 ; and when the meaning is plain, the courts cannot 
 look to the statutes which have been revised to see if congress 
 has erred in its revision. (2) But when it becomes necessarj^ 
 to construe language used in the revision which leaves a sub- 
 stantial doubt of its meaning, the original statute may be re- 
 sorted to for ascertaining that meaning." (3) Under the rule 
 that the original statute may be resorted to for the purpose of 
 ascertaining the meaning of the revision, where there is a sub- 
 stantial doubt as to the meaning of revision, the title of the 
 original act may be resorted to, even if the text of the revision 
 be the same as the original.*^ (4) It will not be inferred that 
 the legislature, in revising and consolidating the laws, in- 
 tended to change their poJicy, unless such intention be clearly 
 expressed.*^ (5) Upon a revision of statutes, where the law 
 antecedently to the revision was settled, either by clear ex- 
 pressions in the statutes, or adjudications on them, the mere 
 change of 'phraseology will not be deemed or construed a 
 change of the law, unless such phraseology evidently purports 
 an intention in the legislature to work a change." 
 
 § 631. Suits against consuls and vice-consuls. — The ninth 
 section of the original judiciary act declares that the district 
 courts "shall also have jurisdiction exclusively of the courts 
 of the several states, of all suits against consuls or vice-con- 
 suls, except for offenses above the description aforesaid;" the 
 exception referri'ng to a previous provision in the same section 
 which declares "that the district courts shall have, exclusively 
 of the courts of the several states, cognizance of all crimes and 
 offenses that shall be cognizable under the authority of the 
 
 41 United States v. Bowen, 100 *2 Meyer v. Western Car Co., 
 
 XJ. S. 508 (25:631); Victor v. Ar- 102 U. S. 1 (26:59). 
 
 thur, 104 U. S. 498 (26:633); Ar- * United States v. Ryder, 110 
 
 thur V. Dodge, 101 U. S. 36 (25: U. S. 729 (28:308). 
 
 949) ; Cambria Iron Co. v. Asli- ** McDonald v. Hovey, 110 U. S. 
 
 bum, 118 U. S. 57 (30:61); United 619 (28:269). 
 States V. Averill, 130 U. S. 339 
 (32:978). 
 
§ 632 JURISDICTION OF DISTRICT COURTS. 475 
 
 United States, committed within their respective districts, or 
 upon the high seas, where no other punishment than whipping, 
 not exceeding thirty stripes, a fine not exceeding one hundred 
 dollars or a term of imprisonment not exceeding six months, 
 is to be inflicted. ' ' *' The constitutional grant to the supreme 
 court of original jurisdiction "in all eases affecting ambassa- 
 dors, other public ministers and consuls" is not exclusive, and 
 the legislation of congress has been effectual to vest in the 
 district courts criminal and civil jurisdiction in eases against 
 consuls and vice-consuls.*" 
 
 § 632. Suits against the government under "The Tucker 
 Act." — The district courts are, by the Tucker Act, given juris- 
 diction, concurrent with the court of claims, to hear and deter- 
 mine all claims founded upon the constitution of the United 
 States or any law of congress, except for pensions, or upon 
 any regulation of an executive department, or upon any con- 
 tract, express or implied, with the government of the United 
 States, or for damages, liquidated or unliquidated, in eases not 
 sounding in tort, in respect of which claims the party would be 
 entitled to redress against the United States either in a court 
 of law, equity, or admiralty, if the United States were suable, 
 where the amount of the claim does not exceed one thousand 
 dollars; and the circuit courts are given concurrent jurisdic- 
 tion in all such cases where the amount of such claim exceeds 
 one thousand dollars and does not exceed ten thousand dol- 
 lars. But it is provided in the act that it shall not be con- 
 strued as giving to either of said courts jurisdiction to hear 
 and determine claims growing out of the late civil war, and 
 commonly known as war claims, or to hear and determine 
 other claims which have heretofore been rejected, or reported 
 on adversely by any court, department, or commission au- 
 thorized to hear and determine the same. And by an amend- 
 ment of the act, it is provided that no suit against the govern- 
 ment of the United States, brought by any officer of the United 
 States to recover fees for services alleged to have been per- 
 formed for the United States, shall be allowed under the act 
 
 «1 U. S. Stat, at L. ch. 20, 263 (28:419); Gittings v. Craw- 
 sec 9, pp. 73-79; TJ. S. Rev. Stat, ford, Taney 1, Fed. Cas. 5,465; Ex 
 sec. 563, cl. 17; 4 Fed. Stat. Anno. parte Baiz, 135 U. S. 403, 432 (34; 
 235, 236. 222). 
 
 46 Bors v: Preston, 111 U. S. 252, 
 
476 FEDERAL PROCEDURE AT LAW. § 635 
 
 unless an account of said fees shall have been rendered and 
 iinally acted Upon according to the provisions of the act of 
 July thirty-first, eighteen hundred and ninety-four (chapter one 
 Tmndred and seventy-four, twenty-eight Statutes at Large, page 
 ■one hundred aijd sixty-two), unless the proper accounting officer 
 •of the treasury fails to finally act thereon within six months 
 after the account is received in said office ; and that the jurisdic- 
 tion conferred by the act upon the circuit and district courts 
 shall not extend to cases brought to recover fees, salary, or com- 
 pensation for official services of officers of the United States, or 
 brought for such purpose by persons claiming as such officers 
 or as assignees or legal representatives thereof.*^ 
 
 § 633. Same — Set-offs and counter-claims. — In all suits men- 
 tioned in the section next preceding, over which the circuit 
 and district courts are given jurisdiction, the said courts have, 
 also, jurisdiction of all set-offs, counter-claims, claims for dam- 
 ages, whether liquidated or unliquidated, or other demands 
 whatsoever on the part of the government of the United States 
 against any claimant against the government in said courts.*^ 
 
 § 634. Same — Limitation of suits — Six yeairs. — No suit 
 against the government of the United States shall be allowed 
 under the Tucker Act, unless the same sh-all have been brought 
 within six years after the right accrued for which the claim is 
 made.*" 
 
 § 635. Same — Cases '' sounding in tort" excluded by "The 
 Tucker Act." — The "Tucker Act" clearly excludes from judi- 
 cial cognizance any claim against the United States for dam- 
 ages in a case "sounding in tort." The United States cannot 
 be sued without their consent, and they have never permitted 
 themselves to be sued, for the torts, misconduct, misfeasance or 
 laches of their officers or employes ; and the settled distinction 
 between actions ex contractu and actions ex delicto cannot 
 be evaded by framing pleadings upon a pretended theory of 
 waiving the tort and suing on an implied contract.^" 
 
 47 24 U. S. Stat, at L. ch. 359, 48 24 XJ. S. Stat, at L. ch. 359, 
 
 pp. 505-508; 30 U S. Stat, at L. p. 505; 2 Fed. Stat. Anno.' 81; U. 
 
 ch. 503, pp. 494, 495 and ch. 546, S. Stat. Comp. 1901, pp. 752, 753. 
 
 Bee. 2, pp. 649, 650; 28 U. S. Stat. 49 24 U. S. Stat, at L. ch. 359, 
 
 at L. ch. 174, p. 162; 2 Fed. Stat. sec. 1, p. 505; 2 Fed. Stat. Anno. 
 
 Anno. 80-88; U. S. Comp. Stat. 81; U. S. Comp. Stat. 1901, p. 752. 
 
 1901, pp. 752-758. s" Blgby v. United States, 188 U. 
 
§ 638 JURISDICTION O^ DISTRICT COURTS. 477 
 
 § 636. Same — Pour classes of cases contemplated by "The 
 Tucker Act." — The first section of the act contemplates four 
 distinct classes of cases, viz: (1) Those founded on the con- 
 stitution or any law of congress, with an exception of pension 
 cases; (2) cases founded on any regulation of an executive 
 department; (3) cases of contract, express or implied, with 
 the government; and (4) actions for damages, liquidated or un- 
 liquidated, in cases not sounting in tort. The words "not sound- 
 ing in tort" are in terms referable only to the fourth class of 
 cases. "^ 
 
 § 637. Same — Same — Implied contracts. — The rule deducible 
 from the adjudicated cases is, that whenever the government 
 appropriates property which it does not claim as its own, but 
 concedes it to be the property of an individual, it does so under 
 an implied contract that it will pay to the owner the value of 
 the property so appropriated, and a suit may be ijiaintained 
 for it under the act now being considered.^^ An action to re- 
 cover back import duties illegally exacted and paid under pro- 
 test is a ease founded upon an act of congress within the mean- 
 ing of the "Tucker Act," and is within the jurisdiction of the 
 circuit and district courts, as courts of claims.'^ 
 
 § 638. Same — Suit by marshal to recover disbursements 
 made to pay court bailiffs. — ^A suit by a United States marshal 
 to recover from the United States money disbursed by him 
 in paying for the services of bailiffs in the district and circuit 
 courts, is not a suit "brought to recover fees, salaries or com- 
 pensation for official services of officers of the United States" 
 within the meaning of the section of the amendatory act of the 
 "Tucker Act," and such suit is within the jurisdiction con- 
 ferred by that act upon the circuit and district courts.'** Bail- 
 iffs are not officers of the United States, but are merely officers 
 of the court. °^ 
 
 S. 400, 410 (47:519); Hill v. Unit- 52 United States v. Lynah, 188 
 
 ed States, 149 U. S. 593, 605 (37: U. S. 445, 485 (47:539); United 
 
 862; Schilllnger v. United States, States v. Palmer, 128 U. S. 262, 
 
 155 U. S. 162, 180 (39:108). 272 (32:442). 
 
 61 Dooley v. United States, 182 53 Dooley v. United States, 182 
 
 U. S. 222, 243 (45:1074); United U. S. 222, 243 (45:1074). 
 
 States V. Palmer, 128 U. S. 262, 04 United States v. Swift (C. C. 
 
 272 (32:442); United States v. A.), 139 Fed. R. 225, 230. 
 
 Lynah, 188 U. S. 445, 485 (47:539). " United States v. McCabe, 129 
 
478 FEDERAL PEOCEDUEE AT LAW. § 640 
 
 § 639. Same— Suit for salvage where the government is 
 benefited by the salvage service. — Jurisdiction is conferred by 
 the "Tucker Act" of a suit for salvage where the government 
 has been benefited by the salvage service; and, where the gov- 
 ernment has a lien on merchandise for the payment of custdm 
 duties, and those duties have been paid under a statute which 
 requires that they shall be refunded in the event of the de- 
 struction, in whole or in part, of the merchandise, by acciden- 
 tal fire or other casualty, while they remain in the custody of 
 the officers of the customs in ajay public or private warehouse 
 under bond, or while in the custody of the officers of the cus- 
 toms and not in bond, or while within the limits of any port 
 of entry, and before the same have been landed under the sup- 
 ervision of the officers of the customs, and salvage services are 
 rendered which prevent the destruction of the merchandise 
 by accidental fire under the circumstances enumerated in the 
 statute, the government is held to be benefited by such services, 
 and the court has jurisdiction of a suit to recover for them.'^ 
 
 § 640. Jurisdiction of judicial proceedings by the federal 
 government to condemn private property for public use. — The 
 federal government is, within the sphere of action appropri- 
 ated to it by tlie constitution, sovereign, independent, and su- 
 preme,'"' and is, by virtue of its sovereignty, and as an attri- 
 bute, thereof, vested with the full and complete power of 
 eminent domain, which it may exercise, within constitutional 
 limits, not only within the territories and the District of Col- 
 umbia, which are subject to its exclusive jurisdiction, but also 
 within the several sitates, without their concurrence or consent, 
 whenever it may be necessary or appropriate in the exercise of 
 any power vested in it by the constitution;^' and the district 
 
 Fed. 708, 64 C. C. A. 236; United States v. Gettysburg Electric R. 
 
 States V. Swift, 139 Fed. R. 225,- Co., 160 V. S. 668, 686 (40:579); 
 
 230. Chappell v. United States, 160 U. 
 
 56 United States v. Cornell S. 499, 514 (40:510); Harris v. 
 
 Steamboat Co. (C. C. A.) 137 Fed. Elliott, 10 Pet. 25 (9:333); United 
 
 R. 455, 460; United States v. Mor- States v. Jones, 109 V. S. 513 (27: 
 
 gan, 99 Fed. R. 570, 39 C. C. A. 1015); Fort Leavenwortb R. Co. 
 
 653. V. Lowe, 114 V. S. 525-531 (29:264, 
 
 oTAbleman v. Booth, 21 How. 266) ; Cherokee Nation v. Southern 
 
 523 (16:175); United States v. Kansas R. Co., 1S5 U. S. 641, 656 
 
 Tarbell, 13 Wall. 397 (20:597). (34:295, 301); Monongahela Nav. 
 
 08 Kohl V. United States, 91 U. Co. v. United States 148 U. S. 312 
 
 S. 367, 379 (23:449); United (37:463); Luxton v. North River 
 
§ 641 JURISDICTION OF DISTRICT COURTS. 479 
 
 and circuit courts are, by federal statute, vested- with concurrent 
 jurisdiction of judicial proceedings for the condemnation of 
 private property needed by the government for any public use 
 authorized by the constitution and valid laws of the United 
 States.^" 
 
 § 641. Same — A proceeding to condemn private property for 
 public use is a suit at common law. — A judicial proceeding to 
 condemn private property for public use is, within the mean- 
 ing of the constitution and judiciary and removal acts of the 
 United States, a suit at common law;°° and the general rule is 
 that the trial of issues of fact in actions at law, both in the 
 district and circuit courts shall be by jury, by which is meant 
 a trial by an ordinary jury at the bar of the court, and con- 
 gress has not provided any peculiar mode of trial in proceed- 
 ings for the condemnation of lands for public use, and the 
 direction of the federal statute that such proceedings sh^ 
 conform, "as near as may be," to those "in the courts of re- 
 cord in the state," is not to be construed as creating an excep- 
 tion to the general rule of trial by an ordinary jury in a court 
 of record, and as requiring, by way either of preliminary, or 
 of substitute, a trial by a different jury, not in a court of record, 
 nor in the presence of any judge, as such a construction would 
 unnecessarily and unwisely encumber the administration of 
 justice in the courts of the United States."^ 
 
 Bridge Co., 147 U. S. 337 (37: "When, in the 11th section of 
 
 194); S. C, 153 U. S. 525 (38:808) the Judiciary Act of 1789, juris- 
 
 Burt V. Merchants' Ins. Co., 106 diction of suits of a civil nature 
 
 Mass. 356, 8 Am. Rep. 339; Re at common law or in equity was 
 
 United States, 96 N. Y. 227. given to the circuit courts, it was 
 
 59 U. S. Rev. Stat. sees. 4870- intended to embrace not merely 
 
 4882 ; 25 TJ. S. Stat, at L. ch. 129, p. suits which the common law re- 
 
 94, and ch. 728, p. 357; 26 U. S. cognized as among its old and 
 
 Stat, at L. ch. 797, sec. 1, pp. 315, settled proceedings, but suits in 
 
 .316, and ch. 837, sec. 2, p. 412; 4 which legal rights are to be ascer- 
 
 Fed. Stat. Anno. 700 et. s'eq.; U. S. tained and determined as distin- 
 
 Comp. Stat. 1901, pp. 2516, 2518, guished from rights in equity, as 
 
 3375, 3376, 3525. well as suits in admiralty.' The 
 
 80 Kohl V. United States, 91 U. right of eminent domain always 
 S. 367, 379 (23:449); Searl v. was a right at common law. It 
 School Dist, 124 U. S. 197, 200 was not a right in equity, nor was 
 (31:415); Chappell v. United it even the creature of a statute." 
 States, 160 U. S. 490, 514 (40:510). Strong, Justice, in Kohl v. United 
 
 81 Chappell V. United States, 160 States, supra. 
 V. S. 490, 514 (40:570). 
 
480 FEDERAL PKOCEDUEE AT LAW. § 643 
 
 § 642. Jurisdiction of suits under the act to prevent unlaw- 
 ful occupancy of the public lands. — The district and circuit 
 courts have concurrent jurisdiction of civil suits in the name 
 of the United States for the recovery of the possession of their 
 public lands held by persons or corporations in violation of the 
 act of congress, entitled "an act to prevent unlawful occu- 
 pancy of the public lands. ' ' "- This statute was intended to 
 operate upon mere trespassers who take possession of the pub- 
 lie lands without shadow of title, and not upon persons who 
 take possession under a bona fide claim or color of title; and 
 the civil suit authorized by it to be brought is not a common- 
 law action, but a summary proceeding in the nature of a suit 
 in equity, and the decree authorized by the act to be entered in 
 such suit for the abatement of enclosure around public lands 
 is unknown as an action at common law as administered in 
 this country, and may be reviewed on appeal rather than upon 
 writ of error."' 
 
 § 643. Jurisdiction of actions for damages under the inter- 
 state commerce act. — The district and circuit courts are vested 
 with concurrent jurisdiction of actions for damages under the 
 interstate commerce act. The ninth section of that act pro- 
 vides "that any person or persons claiming to be damaged by 
 any common carrier subject to the provisions of this act may 
 either make complaint to the commission as hereinafter pro- 
 vided for, or may bring suit in his or their own behalf for the 
 recovery of the damages for which such common carrier may 
 be liable under the provisions of this act in any district or cir- 
 cuit court of the United States of competent jurisdiction; but 
 such person or persons shall not have the right to pursue both 
 of said remedies, and must in each case elect which one of the 
 two methods of procedure herein provided for he or they will 
 adopt. " "* In order to a recovery under this act, the plaintiff 
 must allege distinctly and prove that the defendant carrier has 
 violated the provisions of the act, and that he has, in conse- 
 quence thereof, suffered special injury." 
 
 62 23 tr. S. Stat, at L. ch. 149, sec. 9, p. 382; 3 Fed. Stat. Anno, 
 
 sec. 2, pp. 321, 322; Camfleld v. 833; 3 V. S. Comp. Stat 1901, 
 
 United States, 167 V. S. 518, 528 p. 3154. 
 (42:260). cs parsons v. Chicago & North- 
 
 83 Cameron v. United States, v,'estern Ry. Co., 167 U. S. 447, 
 
 148 U. S. 301, 311 (37: 459). 460 (42:231). 
 
 64 24 U. S. Stat, at L. ch. 104, 
 
§ 645 JURISDICTION OP DISTRICT COURTS. 481 
 
 § 644. Jurisdiction to issue writs of mandamus to compel 
 equal facilities to shi'ppers. — The district courts have jurisdic- 
 tion concurrent with the circuit courts, upon the relation of 
 any person or persons, firm, or corporation, alleging such vior 
 lation by a common carrier, of any of the provisions of the act 
 and amendatory acts to regulate interstate commerce, as pre- 
 vents the relator from having interstate traffic moved by such 
 common carrier at the same rates as are charged, or upon terms 
 or conditions as favorable as those given by such common car- 
 rier for like traffic under similar conditions to any other shipper, 
 to issue a writ or writs of mandamus against such common 
 carrier, commanding such common carrier to move and trans- 
 port the traffic, or to furnish cars or other facilities for trans- 
 portation for the party applying for the writ ; and if any ques- 
 tion of fact as to the proper compensation to the common car- 
 rier for the services to be enforced by the writ is raised by the 
 pleadings, the writ of peremptory mandamus may issue, not- 
 withstanding such question of fact is undetermined, upon such 
 terms as to security, payment of money into court, or other- 
 wise, as the court may think proper, pending the determination 
 of the question of fact; and the remedy given by the writ of 
 mandamus is cumulative, and does not exclude or interfere with 
 other remedies provided by the interstate conimerce act and 
 amendatory acts.'* i 
 
 § 645. Same — Foundation of the right to the writ of man- 
 damus. — The foundation of the right of the relator to the writ 
 of mandamus under this statute is an unjust discrimination, 
 by the defendant common carrier, against the relator in favor 
 of another shipper engaged in like traffic under similar condi- 
 tions; and the relator must allege such unjust discrimination 
 in the manner required by good pleading, and sustain his al- 
 legations by competent evidence, or the writ of mandamus will 
 be denied; The statute requires that the relator shall allege 
 such violation of the act ' ' as prevents the relator from having 
 interstate traffic moved by said common carrier at the same 
 rates as are charged, or upon terms or conditions as favorable 
 as those given by said common carrier for like traffic under 
 similar conditions to any other shipper." The remedy is 
 
 66 25 U. S. Stat, at L. eh. 382, pp. 852, 853; 3 U. S. Comp. Stat, 
 sec. 10, p. SS-B; 3 Fed. Stat. Anno. .1901, p. 3172. 
 31 
 
482 FEDERAL PROCEDURE AT LAW. § 646 
 
 purely statutory, and the pleadings and proofs of the relator 
 must bring him within the terms and policy of the statute, 
 and failing in this he will not be entitled to the extraordinary 
 remedy furnished by the statute."^ 
 
 § 646. Same — Same — Purposes of the interstate commerce 
 act. — The principal objects and purposes of the interstate com- 
 merce act are to secure just and reasonable charges for trans- 
 portation, and to prohibit unjust discriminations in the rendi- 
 tion of like services under similar circumstances and condi- 
 tions, and to prevent undue or unreasonable preferences to 
 persons and corporations, or localities, and to inhibit greater 
 compensation for a shorter than for a longer distance over the 
 same line, and to abolish combinations for the pooling of 
 freights. But it was not designed by that legislation to pre- 
 vent competition between different railroad lines, nor to in- 
 terfere with the customary arrangements by railway compa- 
 nies for reduced fares in consideration of increased mileage, 
 when such reduction does not operate as an unjust discrimi- 
 nation against other persons over the same road, nor to elimi- 
 nate the principle that transportation may be sold at whole- 
 sale cheaper than at retail. 
 
 AU discriminations and preferences do not fall within the 
 inhibitions of the statute, but only such as are unjust and un- 
 reasonable; and it is also true that a charge for transporta- 
 tion may be perfectly reasonable, and yet may operate as an 
 unjust or unreasonable discrimination against others. When 
 it is sought to show that the charge is extortionate as being 
 contrary to the statutable obligation to charge equally, it is im- 
 material whether the charge is reasonable or not; it is enough 
 to show that the company carried for some other perso'n or 
 class of persons at a lower charge during the period through- 
 out which the party complaining was charged more under the 
 like circumstances.^* 
 
 67 United States v. Norfolk & Western R. Co. v. Sutton, L. R. 4 
 W. Ry. Co., 109 Fed. R. 831; H. L. 226, 239; Interstate Corn- 
 United States V. Delaware, L. & merce Commission v. Louisville & 
 W, R. Co., 40 Fed. R. 101. Nashville R. Co., 73 Fed. R. 409; 
 
 68 Interstate Commerce Commls- Interstate Commerce Commission 
 Bion V. Baltimore & O. R. Co., 145 v. Baltimore & O. R. Co., 43 Fed. 
 D. S. 263, 284 (36:699); Great R. 37. 
 
§ 649 JURISDICTION OF DISTBICT COURTS. 483 
 
 § 647. Same — Plea in abatement — Former suit pending. — It 
 
 has been decdded on the circuit, that a former proceeding for 
 a writ of mandamus under this statute, in the same jurisdic- 
 tion, resulting in a final judgment denying the writ to the re- 
 lator, to revise which judgment a writ of error is pending and 
 undetermined in an appellate court, may be pleaded in abate- 
 ment of a subsequent proceeding for a writ of mandamus be- 
 tween the same parties, and involving the same subject-mat- 
 ter.«^ 
 
 § 648. Same — ^Increased jurisdiction of the district courts 
 "by the last amendment to the act. — The last amendment to the 
 act to regulate commerce provides: "that the circuit and 
 district courts of the United States shall have jurisdiction, 
 upon the application of the attorney-general of the United 
 States, at the request of the commission, alleging failure to 
 comply with or a violation of any of the provisions of said act 
 to regulate commerce, or of any act supplementary thereto, or 
 amendatory thereof, by any common carrier, to issue a writ 
 or writs of mandamus commanding such common carrier to 
 comply with the provisions of said acts, or any of them." '" 
 
 The late amendment also provides for many pecuniary penal- 
 ties and forfeitures, to be recovered in any court of the United 
 States of competent jurisdiction; and the revised statutes giv- 
 ing the district courts jurisdiction "of all suits for penalties 
 and forfeitures incurred under any law of the United States," 
 is effectual to vest those courts with jurisdiction of all suits to 
 recover penalties and forfeitures under the act to regulate com- 
 merce, and all amendments thereto.'^ 
 
 § 649. Seizure and destruction of obscene books, pictures 
 and other articles imported from foreign countries in violar 
 tion of law. — Any judge of any district or circuit court, within 
 the proper district, before whom complaint is made in writing 
 on oath, founded upon knowledge or belief, and if upon be- 
 lief setting forth the grounds of such belief, that there has 
 been imported into this country from a foreign country, in 
 
 69 United States v. NorfoLk & to regulate commerce) pp. 592, 
 W. R. Co., 114 Fed. R. 683. E93. 
 
 70 34 U. S. Stat, at L. ch. 3591, tiu. S. Rev. Stat. sec. 563, el. 3; 
 sec. 6 (adding sec. 16a to the act 4 Fed. Stat. Anno. 219; 34 U. S. 
 
 Stat, at L. ch. 3591, pp. 584-595. 
 
484 FEDERAL PROCEDDEE AT LAW. § 650 
 
 violation of the federal statutes, any obscene book, pamphlet, 
 paper, writing, advertisement, circular, print, picture, draw- 
 ing, or other representation, figure, or image on or of paper or 
 other material, or any cast, instrument, or other article of an 
 immoral nature, or any drug or medicine, or any article what- 
 ever for the prevention of conception or for causing unlawful 
 abortion, or any lottery ticket or any advertisement of any 
 lottery, may issue, conformably to the constitution, a warrant 
 directed to the marshal or any deputy marshal in the proper dis- 
 trict, directing him to search for, seize, and take possession 
 of any such article or thing mentioned aforesaid, and to make 
 an immediate return thereof to the end that the same may be 
 condemned and destroyed by proceedings which shall be con- 
 ducted in the same manner as other proceedings in the ease of 
 municipal seizure, and with the same right of appeal or writ of 
 error/^ 
 
 § 650. Jurisdiction of actions to recover penalties for vio- 
 lations of The Safety Appliances Act. — The district courts ar& 
 vested with jurisdiction of actions of debt for the recovery of 
 penalties for violations of the act of congress "to promote the 
 safety of employes and travelers upon railroads by compelling 
 common carriers engaged in interstate commerce to equip their 
 cars with automatic couplers and continuous brakes and their 
 locomotives with driving-wheel brakes." This act makes it un- 
 lawful for any common carrier engaged in interstate commerce 
 by railroad to use on its line any locomotive engine in moving in- 
 terstate traffic not equipped with a power driving-wheel brake 
 and appliances for operating the train-brake system, or to run 
 any train in such traffic that has not a sufficient number of cars 
 in it so equipped with power or train brakes that the engineer on 
 the locomotive drawing such train can control its speed without 
 requiring brakemen to use the common hand brake for that pur- 
 pose, or to haul or to permit to be hauled or used on its lines 
 any car used in moving interstate traffic not equipped with 
 couplers coupling automatically by impact and which can be 
 uncoupled without the necessity of men going between the ends 
 of the cars, or to use any car in interstate commerce that is not 
 
 72 30 U. S. Stat, at L. ch. 11, sees. 16, 17, 18, pp. 208, 209; 3 Fed. Stat. 
 Anno. 317, 318, 319. 
 
§ 652 JURISDICTION OF DISTRICT COURTS. 485 
 
 provided with secure grab irons or handholds in the ends and 
 sides of each car for greater security to men in coupling and un- 
 coupling cars; and the act imposes upon the carrier a penalty 
 of one hundred dollars for each and every violation of the pro- 
 visions of the act, to be recovered in a suit. or suits by the United 
 States district attorney in the district court of the United States 
 having jurisdiction in the locality .where such violation shall 
 have been committed/* * 
 
 § 651. Jurisdiction of suits pending in territorial coiirts 
 upon admission of the territory as a state. — ^It is provided by 
 federal legislation that, when any territory is admitted into the 
 Union as a state, and a district court is established therein, such 
 district court shall take cognizance of all cases which were pend- 
 ing and imdetermined in the superior court of such territory, 
 from the judgments or decrees to be rendered in which writs of 
 error could have been sued out or appeals taken to the supreme 
 court, and shall proceed to hear and determine the same;'^* and 
 all the records of the proceedings in such eases, and all the rec- 
 ords of the proceedings in like cases in which judgments or de- 
 crees shall have been rendered in such territorial courts before 
 the time of its admission as. a state, shall be transferred to and 
 deposited in the district court for such state ; ^^ and it shall be 
 the duty of the district judge to demand of the clerk, or other 
 person, having possession or custody of the records of the above 
 mentioned class of eases, the delivery thereof, to be deposited' 
 in said district court, and in case of the refusal of such clerk or 
 person to comply with such demand, the district judge shall 
 compel the delivery of such records by attachment, or otherwise, 
 according to law.''* 
 
 § 652. AH issues of fact in actions at law tried by jury. — In 
 the district courts of the United States, in actions at common 
 
 73 27 U. S. Stat, at L. ch. 196, syth v. United States, 9 How. 571 
 p. 531; 29 U. S. Stat, at L. ch. 87, (13:262); McNulty v. Batty, 10 
 p. 85; 6 Fed. Stat. Anno. pp. 752- How. 78, 80 (13:335). 
 
 753; 32 U. S. Stat, at L. ch. 976, " U. S. Rev. Stat. sec. 567; 4 
 
 pp. 943-944. ' Fed. Stat. Anno. 237; 1 U. S. 
 
 74 U. S. Rev. Stat. Sec. 569; 4 Comp. Stat. 1901, 462, 
 
 Fed. Stat. Anno. 238; 1 U. S. feu. S. Rev. Stat. sec. 568; 4 
 Comp. Stat. 1901, 462; Benner v. Fed. Stat. Anno. 238; 1 U. S. Comp. 
 Porter, 9 How. 234 (13:119); For- Stat. 1901, 462. 
 
486 FEDEKAL PROCEDUEE AT LAW. § 652 
 
 law, all issues of fact are tried by a jury ; ''"' and there is no 
 provision of law authorizing the waiving of a jiiry, and a trial 
 of issues of fact, in an action at common law, in those courts, by 
 the court, the federal statutes upon that subject applying to 
 the circuit courts only/' 
 
 77 U. S. Rev. Stat. sec. 566; 4 Fed. ts Rogers v. U. S., 141 U. S. 548, 
 
 Stat. Anno. 236; 1 U. S. Comp. 556 (35:853); 4 Fed. Stat. Anno. 
 Stat. 1901, 461. 236, 237, collecting authorities. 
 
GENERAL INDEX. 
 
 [References are to sections.] 
 
 ABATEMENT— 
 
 of suits, 974-976. 
 
 by death, 976. 
 
 by resignation of officer, 976. 
 
 scire facias to revive, 974. 
 
 plea in, 1026-1030, 1033. 
 
 defined, 1030. 
 
 due order of pleading, 1033. 
 ACCOUNT— 
 
 common-law action of. 901, 902. 
 concurrent jurisdiction in equity, 902. 
 See Suits at Common Law. 
 
 ACTIONS AT COMMON LAW— 
 defined, 164, 890-892. 
 same as case in law, 164. 
 
 embrace all suits to settle legal rights, 164, 892. 
 standard of classification, 890. 
 
 ADMIRALTY AND MARITIME JURISDICTION— 
 
 vested exclusively in the federal Judiciary, 506-604. 
 extent of, a judicial question, 507, 508. 
 maritime code of the United States, 510-518. 
 
 power of congress to legislate on the subject, 510, 511. 
 
 general maritime law, how far in force, 509-512. 
 
 limited liability act, 513. 
 
 Harter act, 514. 
 
 acts concerning seamen, 515. 
 
 acts against violation of neutrality, 516., 
 law of the high seas, 517, 518. 
 two classes of civil cases in admiralty, 
 prize causes governed by laws of nations. 
 
 power of congress to make rules concerning, 521. 
 seizure of piratical vessels, 523, 524. 
 navigable waters defined, 524-535. 
 
 not ceded to the federal government, 535." 
 
486 — 2 , GENEEAL INDEX. 
 
 [References are to sections.] 
 
 ADMIRALTY AND MARITIME JURISDICTION (continued)' 
 criminal jurisdiction in admiralty, 536. 
 history of federal legislation concerning, 537-540, 
 maritime contracts, 544. 
 maritime liens, 541-556. 
 
 states may create, 541, 542. 
 marine torts, 544, 549. 
 forms of suits in admiralty, 557-559. 
 jurisdiction of the district courts, 560-604. 
 
 contracts, 561. 
 
 torts, 562, 563. 
 ^ liens, 564, 565. 
 
 material-men, 566. 
 
 seamen's wages, 567, 568. 
 
 master's wages, 569. 
 
 towage, 570. 
 
 pilotage, 571, 572. 
 
 salvage, 573, 574. 
 
 general average, 675. 
 
 marine insurance, 576. 
 
 marine hypothecation, 577. 
 
 bottomry bonds, 578. 
 
 respondentia bonds, 579. 
 
 affreightment contracts, 580. 
 
 transportation of persons, 580ffl. 
 
 charter-party, 581. 
 
 demurrage, 582. 
 
 stevedores, 583. 
 
 wharfage, 584. 
 
 lighterage, 585. 
 
 consortship, 586. 
 
 petitory and possessory suits, 587. 
 
 collisions, 588-592. 
 
 destruction of beacon, 593. 
 
 sea battery, 594. 
 
 marine tort resulting in death, 595-598. 
 
 limited liability act, 597. 
 
 maritime seizures, 599-600. 
 
 restitution of vessels, 601. 
 
 prize jure 'belli, 602. 
 
 interventions, 604. 
 venue of suits in admiralty, 590, 600, 603, 604. 
 common-law remedy, 591. 
 
 AFRICAN RACE— 
 
 status prior to the late constitutional amendments, 213. 
 
GENEEAJj INDEX. 486-^3 
 
 [References are to sections.] 
 
 AGREED CASE— 
 
 practice allowed in federal courts, 1107. 
 
 judgment on reviewed without bill of exceptions, 1107. 
 
 federal question raised by, 429. 
 
 ALABAMA— 
 
 statute of, for improvement of Mobile bay, 48. 
 
 constitutional, 48. 
 venue of suits in federal courts in, 959, note 23. 
 AMBASSADORS— 
 
 power of federal government to appoint and receive, 22. 
 exemption of, from local jurisdiction, 222-225. 
 children of born here not citizens, 223-225. 
 AMENDMENTS— 
 
 controlled by federal statutes, 1045. 
 extent of court's power, 1046. 
 discretion of court, 1048. 
 of process, 1047. 
 of verdict, 1112, 1114. 
 after reversal by supreme court, 1049. 
 AMENDMENTS TO FEDERAL CONSTITUTION— 
 
 first ten, restraints on federal government, 99, 100, 179. 
 
 not restraints on the states, 99, 100, 179. 
 
 operation of not enlarged by fourteenth amendment, 99, 100. 
 late amendments did not change system of government, 189. 
 
 nor take away police power of the states, 190-208. 
 
 AMOUNT IN DISPUTE— 
 
 a jurisdictional fact, when, 728. 
 rules for determining, 729. 
 
 from face of pleading, 730, 731. 
 
 upon an issue of fact, 732. 
 
 several plaintiffs, 733. 
 
 interest, when considered, 734. 
 
 ANNUITY— 
 
 action of, 903. 
 obsolete, 903. 
 
 APPEAL AND ERROR— 
 See Wbit of Bbbob. 
 
 APPEARANCE OP DEFENDANT— 
 at common law, 1015. 
 by attorney, 1015, 1024. 
 general, 1016-1019, 1022, 1023. 
 
 defined, 1017, 1018. 
 
 not withdrawn without leave of court, 1019. 
 special, 1016, 1020-1022. 
 
 defined, 1020, 1021. 
 
 petition for removal, 1022. 
 
486 i GENERAL INDEX. 
 
 [References are to sections.] 
 
 ARTICLES OF CONFEDERATION— 
 
 confederacy under was not a government, 378-380^ 
 was a league of sovereign states, 378. 
 no judiciary, 379-380. 
 
 prize, piracies and boundaries, 379. 
 no power to enforce its laws, 380. 
 
 ASSIGNEES— 
 
 of choses in action, 718-722. 
 
 bill for specific performance, 719. 
 
 foreign bills of exchange, 721. 
 
 notes of corporations payable to bearer, 720. 
 fact of assignment, 722. 
 suits by, 718-722. 
 
 ASSUMPSIT— 
 
 action of, 904, 905. 
 general, 904. 
 special, 904. 
 great common-law action, 905. 
 
 B. 
 
 BILLS OF ATTAINDER— 
 defined, 103, 104. 
 inhibited, 103, 104, 351. 
 
 BILLS OF CREDIT— 
 defined, 349, 350. 
 inhibited, 349, 350. 
 
 BILLS OF EXCEPTION— 
 defined, 1138. 
 practice concerning, 1138-1154. 
 
 admission or rejection of evidence, 1142, 1143. 
 
 charge of the court, 1144-1150. 
 settling of, 1152-1154. 
 
 authentication, 1152. 
 
 mandamus to compel, 1153. 
 
 order for time, 1154. 
 what to contain, 1149-1151. 
 
 BILLS OF EXCHANGE— 
 foreign, 721. 
 suits on, 721. 
 
 BOUNDARY SUITS— 
 between states, 411. 
 original jurisdiction of supreme court, 411. 
 
GENERAL IKDBX. 486 5 
 
 [neferences are to sections.] 
 
 BRIDGES— 
 
 across navigable stream, 46, 47. 
 authority of states to maintain, 46, 47. 
 assent of federal goyernment required, 47. 
 
 CAliIFORNIA— 
 
 statute of, concerning ejectment, 870. 
 
 venue of suits in federal courts in, 959, note 23. 
 
 CASES IN LAW— 
 
 embrace all snits to settle legal rights, 164, 892. 
 same as suits at common law, 164. 
 standard of classification, 890. 
 
 CERTIORARI— 
 writ of, 502-505. 
 
 jurisdiction of supreme court to issue, 502-505. 
 
 CHARGE OP THE COURT— 
 practice concerning, 1091-1101. 
 comment on the evidence, 1091. 
 must charge law of the whole case, 1094. 
 must submit all issues of fact, 1093. 
 state law, 1100. 
 
 supremacy of the federal constitution, 1101. 
 peremptory, 1097-1099. 
 requested charges, 1095, 1096. 
 when and how excepted to, 1140, 1144-1150, 
 
 CHOSES IN ACTION— 
 assignees of, 718-722. 
 suits by, 718-722. 
 bill for specific performance, 719. 
 notes of corporations, 720. 
 foreign bills of exchange, 722. 
 fact of assignment, 722. 
 
 CIRCUIT COURTS— 
 
 jurisdiction of, 653-783. 
 
 concurrent with the courts of the states, 668-736, 
 under special statutes, 737-783, 889. 
 
 CITIZENSHIP— 
 defined, 212, 213. 
 African race, 213. 
 dual citizenship, 234. 
 two sources of citizenship, 214. 
 
 by birth, 215-228. 
 
 by naturalization, 229-233. 
 
486—6 GENEEAL INDEX. 
 
 [References are to sections.] 
 
 CITIZENSHIP (continued) — 
 common-law rules, 215-219. 
 
 prevailed in the colonies, 215-217. 
 
 slave population, 213, 217. 
 
 Indian tribes, 218, 219. 
 fourteenth amendment, 220-222. 
 
 Chinese person, 221.. 
 
 meaning of Qualifying words, 222, 228. 
 foreign ministers' children, 223--225. 
 consuls' children, 224, 225. 
 hostile occupation, 226. 
 seceded states, 227. 
 naturalization, 231-233. 
 
 collective, 231-233. 
 
 admission of states, 232. 
 
 by treaty or statute, 233. 
 married women, 230. 
 privileges and immunities of, 238-268. 
 
 of the several states, 238-256. 
 
 of the United States, 257-268. 
 
 corporations not entitled tp, 252, 268. 
 
 COLONIES— 
 
 original thirteen, sovereign states, 16. 
 
 struggle of in regard to judicial procedure, 9: 
 
 COMMERCE— 
 defined, 36. 
 is a unit, 34. 
 . regulation of, 22-38. 
 state action incidentally affecting, 63. 190-203. 
 inspection laws, 53-61. 
 pilotage laws, 33. 
 quarantine laws, 62. 
 exercise of the police power, 190-202, 
 
 <;OMMON LAW— 
 
 principles of, 7-9, 120, 506, 921, 922. 
 
 confirmed in the federal constitution, 120-160, 921, 922. 
 
 the palladiijm of English liberties, 506. 
 
 the municipal jurisprudence of England, 500. 
 
 is due process of law, 120. 
 
 rules of, regarding citizenship, 212-237. 
 
 constitution construed in light of, 95. 
 
 COMPLAINT, DECLARATION OR PETITION- 
 must conform to state rules of pleading, 982. 
 must state a common-law cause of action, 985, 986. 
 requisites of, 981-1013. 
 
GENERAL INDEX. 486 7 
 
 [References are to sections.] 
 
 CONDEMNATION PROCEEDINGS— 
 
 is a common-law action, 640, 641, 920. 
 mode of procedure, 175. 
 compensation, 176. 
 
 CONFESSIONS— 
 
 admissibility of in criminal cases, 129, 130. 
 test of admissibility, 130. 
 
 CONSTITUTION OP THE UNITED STATES— 
 adoption of by the people of the states, 381. 
 created a new government, 16-63, 375-397. 
 rules of construction of, 94-99, 209-211. 
 
 in the light of the common law, 95. 
 
 in the light of contemporaneous history, 96. 
 
 in the light of contemporaneous exposition, 97. 
 effect of the late amendments, 100, 178-208. 
 
 did not change the system of government, 178-208. 
 supreme law of the land, 17, 66-69, 376, 1101. 
 
 duty of the courts to maintain, 1101. 
 establishes distinction between law and equity, 832, 887. 
 establishes the federal judiciary, 381-386. 
 established federal procedure, 10, 11. 
 
 CONSTITUTIONAL CONSTRUCTION— 
 method of, 209-211. 
 
 early history, 209. 
 
 modern method, 210, 211. 
 judicial inclusion and exclusion, 210, 211. 
 rules of, 95-97. 
 
 CONSTITUTIONAL LIMITATIONS — 
 upon the federal government, 94-197. 
 , bills of attainder, 103, 104. 
 
 criminal procedure, 101, 102, 110, 132-163. 
 due process of law, 111-120. 
 eminent domain, 172-176. 
 impeachments, 105-110. 
 
 re-examination of facts tried by jury, 169-171, 424. 
 self-accusation, 123-131. 
 trial by jury, 110, 138. 139, 163-171. 
 upon the states, 178, 374. 
 bills of credit, 349, 350. 
 bills of attainder, 351. 
 due process of law, 269-298. 
 equal protection of the laws, 299-324. 
 elective franchise, 325-328. 
 obligation of contracts, 329-348. 
 ex post facto laws, 351. 
 
486 8 GENERAL INDEX. 
 
 [References are to sections.! 
 
 ■CONSTITUTIONAL LIMITATIONS (continued)— 
 
 privileges and Immunities of citizens of the states, 238-256. 
 privileges and immunities of citizens of the United States, 
 
 257-268. 
 duties on imports and exports, 352-362. 
 tonnage duties, 363-374. 
 effect of the late amendments, 100, 178-208. 
 
 did not change scheme of government, 189, 
 
 CONTRACT— 
 
 defined, 332-335. 
 
 charters of private corporations, 333. 
 
 construction of legislative grants, 334. 
 
 marriage, 335. 
 
 obligations of defined, 335. 
 
 obligations of, not to be impaired, 329-348, 677-686. 
 
 changing remedy, 337, 338. 
 
 changing statute of limitation, 339. 
 
 judgment for tort, 340. 
 
 withdrawing power of taxation, 341. 
 
 increasing exemptions, 342. 
 
 laws altering terms of contracts, 343-347. 
 
 inhibition prospective only, 348. 
 
 Virginia tax and coupon cases, 677-68L 
 
 municipal ordinances impairing 686. 
 
 CORPORATIONS— 
 
 charters of contracts, when, 333, 334. 
 
 when regarded as citizens, 296, 300, 712-714, 725. 
 
 when not regarded as citizens, 252, 268. 
 
 foreign, citizen of country creating it, 725. 
 service of process on, 934, 1008. 1009. 
 
 COVENANT— 
 action of, 906. 
 
 CRIMINAL LAW— 
 grand jury, 133. 
 felony, 136. 
 indictment, 132-137. 
 
 necessity of, 4, 132-136. 
 exception, 137. 
 
 cannot be amended, 134. 
 
 several counts in, 153. 
 
 sufficiency of, 142. 
 infamous crime defined, 135. 
 right to trial by jury, 138, 139. 
 speedy and public trial, 140. 
 confronted with the prosecuting witnesses, 143, 144. 
 
GENEEAL INDEX. 486 — 9 
 
 [References are to sections,] 
 
 CRIMINAL LAW (continued)— 
 
 compulsory process for witnesses, 145. 
 assistance of counsel, 145. 
 cruel and unusual punishment, 146, 147. 
 twice in jeopardy, 148-154. 
 
 trial on defective indictment, 149, 150, 
 
 verdict constitutes the bar, 151. 
 self-accusation, 122-131. 
 unreasonable search and seizure, 121. 
 .ex post facto laws, 155-159. 
 
 defined, 157. 
 
 D. 
 
 DAMAGES— 
 
 exemplary, 691, 730, 731. 
 
 element in case arising under constitution, 691. 
 amount in dispute, 730, 731. 
 
 DEBT — 
 
 action of, 616, 618, 739, 907. 
 
 DECLARATION, COMPLAINT OR PETITION— 
 must conform to state pleading, 982. 
 must state a common-law cause of action, 985 986. 
 requisites of, 981, 
 
 DEFENSES OF DEFENDANT- 
 
 must conform to state pleading, 1034. 
 
 exception, 1034. 
 requisites of, 1025-1041, 1044. 
 
 DEMURRER— 
 office of. 1028. 
 to evidence, 1090. 
 
 DEPOSITION— 
 
 admissible, when, 937, 1071, 1072. 
 
 how taken, 1073. 
 
 motion to suppress, 1074. 
 DISTINCTION BETWEEN LAW AND EQUITY— 
 
 in the federal courts, 163, 164, 506, 831-833, 887, 897, 930-932, 978- 
 980, 999, 1038, 1041, 1044. 
 
 DISTINCTION BETWEEN LEGAL AND EQUITABLE REMEDIES— 
 separately pursued in federal courts, 163, 164, 506, 881-883, 887, 889, 
 897, 930-932, 978-980, 999, 1038, 1041, 1044. 
 
 DISTRICT COURTS— 
 
 admiralty jurisdiction of, 506-604. 
 
 common law and equity jurisdiction of, 605-652. 
 
486 — ■lO GENEBAli INDEX. 
 
 [References are to sections.j 
 
 DOCUlftENTARY EVIDENCE— 
 how produced, 938, 1078-1085. 
 
 subpoena duces tecum, 1084, 1085. 
 papers from general land ofllce, 1085. 
 
 DUAL SYSTEM OF GOVERNMENT— 
 created by the constitution, 16-63. 
 attributes of sovereignty divided, 17, 18-22, 179-181. 
 classification of powers, according to distribution, 27. 
 
 DUE PROCESS OF LAW— 
 
 of the United States, 111-120. 
 of the states, 289-298. 
 
 judicial procedure, 269-280.' 
 
 eminent domain, 281-287. 
 
 taxation, 288-298. 
 
 E. 
 
 EJECTMENT— 
 
 action of, 858-883, 916, 917. 
 
 legal title necessary to maintain, 859-862, 868-875. 
 
 equitable title no defense, 876-880. 
 
 EMINENT DOMAIN— 
 
 constitutional guaranties, 172-176, 281-286. 
 
 what is a public use, 173. 
 
 whether taking is for public use presents a federal question, 282- 
 
 286. 
 compensation, 176, 284, 285. 
 mode of procedure, 175. 
 
 EQUAL PROTECTION OP THE LAWS— 
 
 secured by the fourteenth amendment, 299-324. 
 
 corporations protected by the inhibition, 300, 319. 
 classification for purposes of legislation, 301-311. 
 taxation and equal protection of the laws, 312-317. 
 
 classification for purposes of, 317. 
 civil rights, 319-324. 
 
 EVIDENCE— 
 
 production of, 937, 938, 1070-1085. 
 competency of witnesses, 1069. 
 depositions, 1071-1074. 
 documentary evidence, 938, 1078-1085- 
 subpoena, 1070. 
 
 duces tecum, 1084, 1085. 
 surgical examination, 1075, 1076. 
 cross-examination, 1077. 
 
GENERAL INDEX. 486—11 
 
 [References are to sections.] 
 
 EVIDENCE (continued) — 
 ^ introduction of evidence, 1086. 
 order of proof, 1086. 
 objections to evidence, 1087-1089. 
 demurrer to evidence, 1090. 
 state rule of evidence control, 1068. 
 
 EXCEPTIONS— 
 
 to rulings of the court, 1138-1154. 
 when to be made, 1089, 1140, 1144. 
 must be specific, 1087, 1088, 1145. 
 bills of, 1138-1154. 
 
 EXECUTION— 
 
 state laws control, 942, 943, 1127, 1128. 
 
 supplementary, 943. 
 run into all districts in the state, 1128. 
 
 EX POST FACTO LAWS— 
 inhibited, 155-162. 
 defined, 157. 
 
 reason for inhibition, 156. 
 change in the law of procedure, 158-162. 
 acts mitigating punishment, 161-162. 
 ■ when accused discharged, 162. 
 
 FEDERAL ADMINISTRATION OF STATE LAWS— 
 
 two systems of law administered in federal courts, 64-69. 
 great body of law derived from state authority, 70. 
 jurisdiction of federal courts to administer state laws, 73. 
 local laws binding on federal courts, 74. 
 
 rules of property, 80. 
 
 statutes of frauds, 82, 83. 
 
 statutes of limitations, 81. 
 
 recording acts, 84. 
 
 creation of corporations, 85. 
 when United States supreme court follows state decisions, 75-93. 
 
 construing state constitutions and statutes, 75-78. 
 
 construing state tax laws, 78. 
 
 will not when federal question involved, 76, 93. 
 principles of general law, 86-90. 
 
 commercial law, 87. 
 
 insurance, 88. 
 
 negligence, 86. 
 
 common law, 89. 
 
 bonds in aid of railroad construction, 90. 
 32A 
 
 I 
 
486 — ^^12 GENERAL INDEX. 
 
 [References are to sections.] 
 
 FEDERAL ADMINISTRATION OP STATE LAWS (continued) — 
 
 when federal courts will change decision to conform to state de- 
 cision, 91. 
 when will not, 93. 
 
 FEDERAL GOVERNMENT— 
 
 created by the federal constitution, 17, 18, 381, 1002. 
 one of enumerated, specified and limited powers, 17-37. 
 implied powers of, 23-26. 
 
 deduced from a group of specified powers, 26. 
 
 meaning of implication, 24. 
 national in character, 21, 22. 
 supremacy of, 17. 
 
 does not possess all the attributes of sovereignty, 20. 
 classification of governmental powers, 27." 
 
 FEDERAL JUDICIARY— 
 
 judicial power requisite to existence of government, 375-380. 
 
 none under articles of confederation, 378-380. 
 
 created by the constitution, 381. 
 
 limits of defined in constitution, 382, 383. 
 
 distribution of judicial power to supreme court, 384. 
 
 Independence of, 387. 
 
 courts constituting the system, 391, 392. 
 
 organized, 388-390. 
 
 Jurisdiction co-extensive with legislative power, 376, 393, 656, 657. 
 
 a new political principle, 657. 
 distinction between judicial power and jurisdiction, 658. 
 necessary to maintain supremacy of the constitution, 394-397. 
 relation of to national peace, 398. 
 relation of to domestic tranquility, 399. 
 Independence of, 387. 
 relation of, to state judiciary, 402-405. 
 
 one system for some purposes, 405. 
 power to declare state law void, 69. 
 
 FEDERAL PROCEDURE IN SUITS AT COMMON LAW— 
 basis of federal procedure at law, 10-15, 886, 887, 921, 922. 
 complexity of, 921, 922. 
 
 rules derived from common law, 921, 922. 
 rules derived from federal constitution, 921, 922.. 
 rules derived from federal statutes, 921, 922, 934. 
 rules derived from state procedure, 921-946, 967-972, 980, 
 1001, 1042-1044. 
 constitutional limitations upon, 94-177. 
 due process of law, 111-120. 
 eminent domain, 172-175 
 jury trial, 163-171. 
 
GENERAL INDEX. 486 13 
 
 [References are to sections.] 
 
 FEDERAL PROCEDURE IN SUITS AT COMMON LAW (continued)— 
 mode of proof, 937, 938, 1071-1073. 
 
 oral examination of witnesses, 1071. 
 depositions, 1071-1077. 
 production of documents, 1078-1085. 
 pleadings, 977-1002, 1025-1044. 
 
 declaration, complaint or petition, 981-1002. 
 defensive pleadings, 1025-1041. 
 interventions, 1042-1044. 
 state system of pleading, 977-980. 
 trial and its incidents, 1050-1137. 
 
 FEDERAL QUESTION— 
 
 classification of federal questions, 425, 458. 
 when raised, 427, 428. 
 how raised, 429-433. 
 
 degree of certainty required, 430. 
 
 must be called to attention of the court, 431, 
 
 certificate of presiding judge, 432. 
 
 FELONY— 
 
 defined, 136. 
 
 G. 
 
 GEORGIA— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 GOVERNMENT— 
 
 dual system of created by the constitution, 16-63. 
 powers vested in the federal government, 17-39, 179, 180. 
 powers reserved to the states, 40-63, 179-208. 
 
 sovereignty divided between the federal and state governments, 17, 
 179-187. 
 each supreme in its sphere, 17. 
 departments of kept separate, 377. 
 
 GRAND JURY— 
 
 office and functions of, 133. 
 See Ceiminal Law. 
 
 H. 
 
 HABEAS CORPUS— 
 
 writ of, not to be suspended, 177. 
 jurisdiction to issue, 467-487. 
 what courts and judges may issue, 468. 
 when writ may issue, 471-481. 
 nature and pffice of the writ, 470. 
 procedure, 482-487. 
 
486 14 GENERAL INDEX. 
 
 [References are to sections.] 
 
 I. 
 
 IDAHO— 
 
 venue of suits in federal courts in, 959, note 23. 
 ILLINOIS— 
 
 venue of suits in the federal courts In, 959, note 23. 
 INDIANA— 
 
 venue of suits in the federal courts in, 959, note 23. 
 INDICTMENT— 
 
 necessity of, in prosecutions for infamous crimes, 132-137. 
 exceptions, 137. 
 
 cannot he amended, 134. 
 
 several counts in, 153. 
 
 acquittal upon defective, 149-151. 
 INFAMOUS CRIME— 
 
 defined, 135, 136. 
 
 prosecuted only on presentment or indictment of grand jury, 132. 
 exception, 137. 
 
 INQUIRY— 
 
 writ of, 1111. 
 IOWA— 
 
 venue of suits in federal courts in 959, note 23. 
 INSPECTION LAWS OF THE STATES— 
 
 subject matter of, 54, 55. 
 
 articles subject to state inspection laws, 55. 
 
 object of state inspection laws, 56. 
 
 commercial classification of subjects of inspection, 59. 
 
 means and method of Inspection, 57. 
 
 is an exercise of the police power, 60, 61. 
 
 in harmony with regulation of commerce, 61. 
 
 duties on imports to pay cost of inspection, 53, 58. 
 INTERSTATE COMMERCE- 
 
 regulation of, 29-39, 191-200. 
 
 suits to protect, 780. 
 
 history of legislation concerning, 780, note 80. 
 INTERVENTION— 
 
 available in federal courts, 1043. 
 exception, 1044. 
 
 unknown at common law, 1042. 
 
 J. 
 
 JUDGMENTS— 
 
 of the circuit courts, 1124-1126. 
 controlled by state laws, 1124. 
 lien of, 1125, 1126. 
 
 at law reviewed upon writ of error only, 169-171, 115B, 
 in bankruptcy, 171. 
 of state courts reviewed upon writ of error only, 421-424. 
 
GENERAL INDEX. 486 15 
 
 [References are to sections.] 
 
 JUDGES— 
 
 federal judges, 929, 939. 
 
 personal administration of not controlled by state laws, 929, 939, 
 
 1092. 
 duty to submit all issues of fact to the jury, 1093. 
 to charge law of the whole case, 1100. 
 to charge the state law, 1100. 
 not required to submit special issues, 1096. 
 province of, and jury, respectively, 1091. 
 
 JUDICIAL POWER OP THE UNITED STATES— 
 vested by the constitution, 381. 
 limits of, defined, 382, 383, 656, 657. 
 requisite to the existence of the government, 375, 376. 
 distinction between, and jurisdiction, 658, 659. 
 1 distribution of to supreme court, 384. 
 vested in a system of federal courts, 385. 
 co-extensive with the legislative power, 375, 656, 657. 
 
 JUDICIAL PROCEDURE— 
 
 act of conformity, 921-946, 967-972, 977-980, 1001, 1042-1044. 
 
 federal adoption of state procedure, 921-946, 967-972, 979-980, 
 1001, 1042-1044. 
 when state procedure followed, 946, 967, 977, 1001, 1034, 
 
 1043, 1110, 1124. 
 when state procedure not followed, 834, 845, 848, 868-871, 
 930-945, 978-990, 1041, 1044, 1070, 1071. 
 common-law principles and rules of procedure, 7, 9, 111-177. 
 
 confirmed in federal constitution, 120, 121, 122, 129. 132, 922. 
 importance of just procedure, 5-7. 
 a substantive right, 2-4. 
 absence of indicates national decay, 5. 
 guaranty of civil liberty, 7. 
 
 struggle for in England and Colonies, 6-9, 112, 121, 129. 
 judicial murders in England, 6, 7. 
 parliamentary murders in England, 103, 109. 
 bills of attainder, 103, 104. 
 Impeachments, 105, 109. 
 principles of procedure fixed by federal constitution, 10-15, 94-160, 
 886, 887. 
 bills of attainder, 103, 104. 
 due process of law, 111-120. 
 impeachments, 105-109. 
 indictment necessary in prosecution for infamous crime, 132- 
 
 137. 
 trial by jury, 110, 138, 139, 163, 166, 1054. 
 unreasonble searches and seizures, 121-131. 
 
486 16 GENERAL INDEX. 
 
 [References are to sections.] 
 
 JUDICIAL PROCEDURE (continued) — 
 
 ' witness, not against self in criminal case, 129, 130. 
 compulsory process for, 145. 
 confronted by, 143, 144. 
 relation between criminal and civil procedure, 5. 
 states authorized to establish their own procedure, 265-267, 269-281. 
 due process of law of the states, 269, 298. 
 
 JURISDICTION OP THE CIRCUIT COURT— 
 jurisdiction defined, 659, 660, 661, 662, 663. 
 is concurrent or exclusive, 665. 
 meaning of concurrent, 667. 
 common-law and equity jurisdiction of, 668-783. 
 concurrent with the state courts, 668-736. ' 
 
 suits arising under the constitution, laws and treaties of the 
 
 United States, 668-708. 
 diversity of citizenship, 709-724. 
 foreign states, citizens or subjects, 724, 725. 
 Jnited States plaintiffs, 726. 
 and grants from different states, 727. 
 amount in dispute, 728-735. 
 in what cases requisite, 728. 
 rules for determining, 729-734. 
 ancillary suits, 735. 
 under special statutes, 737-783. 
 
 by officers of the United States, 737-745. 
 
 for violation of laws regulating carriage of passengers in mer- 
 chant vessel, 746. 
 condemnation of property used in aid of insurrection, 747. 
 slave trade laws, 748. 
 assignees of debentures, 749. 
 patent laws, 750-756. 
 copyright laws, 757-760. 
 
 by United States or officers against national banks, 761. 
 by banks against comptroller, 761. 
 for injuries under the revenue laws, 762. 
 to enforce right to vote, 763. 
 for deprivation of civil rights, 764-766. 
 by and against trustees in bankruptcy, 767. 
 condemnation of private property for public use, 768. 
 under the Tucker act, 769. 
 under laws forbidding importation of foreigners under contract 
 
 to labor, 770. 
 to prevent unlawful occupancy of public lands, 771. 
 
 partition, when United States are tenants, 772. 
 seizure and destruction of obscene books, pictures and other ar- 
 ticles, 773. 
 
GENERAL INDEX. 486 — 17 
 
 [lleferences are to sections.] 
 
 JURISDICTION OP THE CIRCUIT COURT (continued) — 
 under acts to protect trade and commerce, 774-781. 
 to naturalize alien, 782. 
 none In original mandamus proceeding, 783. 
 
 JURISDICTION OP THE CIRCUIT COURT OP APPEALS— 
 appellate, defined, 466, 466a. 
 
 time allowed to sue out writ of error or appeal, 4660i 
 JURISDICTION OP THE DISTRICT COURTS— 
 admiralty jurisdiction, 560-604. 
 common law and equity jurisdiction, 605-652. 
 suits for penalties and forfeitures, 611-614, 620, 623, 624. 
 suits by United States or oflScers, 615-624. 
 seizure on land and waters not navigable, 623. 
 condemnation of property used in aid of insurrection, 624. 
 suits by assignees of debentures, 625. 
 suits to redress deprivation of civil rights, 626-628. 
 suits by aliens for torts in violation of the laws of nations or trea- 
 ties, 629. 
 suits against consuls and vice-consuls, 631. 
 suits under Tucker act, 632-639. 
 
 condemnation of private property for public use, 640-641. 
 suits to prevent unlawful occupancy of public lands, 642. 
 suits under interstate commerce act, 643-648. 
 seizure and destruction of obscene books and pictures, 649. 
 suit for penalties under safety appliances act, 650. 
 suits transferred from territorial courts, 651. 
 issues of fact tried by jury, 652. 
 Tiateas corpus, 468. 
 JURISDICTION OP THE SUPREME COURT— 
 appellate jurisdiction, '418-i65. 
 
 over circuit and district courts, 459-462. 
 
 over circuit court of appeals, 463. 
 
 over court of claims, 464. 
 
 over the state courts, 418-458. 
 original jurisdiction, 406-417. 
 special writs, 46.7-505. 
 
 habeas corpus, 467-487. 
 
 prohibition, 488-493. 
 
 mandamus, 494-501. 
 
 certiorari, 502-505. 
 
 JURORS— 
 
 qualification of, 1055, 1056. 
 apportioned to district, 1057. 
 mileage and per diem, 1059. 
 how drawn, 105& 
 summoned, 1060. 
 
486 — 18 GENERAL INDEX. 
 
 [References are to sections.] 
 
 JURORS (continued)— 
 
 talesmen, 1061, 1062. 
 
 special jurors, 1063. 
 
 challenges, 1064-1065a. 
 
 impaneling, 1066. 
 JURY TRIAL— 
 
 secured by federal constitution, 110, 138, 139, 163-171, 105 
 
 defined, 139, 165, 1054. 
 
 common-law jury, 139, 165, 1054. 
 
 common-law jury trial, 139, 165, 1054. 
 
 E. 
 
 KANSAS— 
 
 venue of suits in federal courts in, 959, note 23. 
 KENTUCKY— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 L. 
 
 LAND— 
 
 suits to recover, 856-883. 
 legal title necessary, 856-883. 
 common-law rule, 860-862. 
 Lord Mansfield's doctrine, 860-862. 
 patents issued by the United States, 863-867. 
 conclusive of legal title, 863. 
 void, collaterally attacked, 867. 
 necessary to convey legal title, 865. 
 
 exception, 866. 
 Swamp land act, 865. 
 suit not maintainable on registers and receiver's certificates, 868- 
 871. 
 statute of Arkansas, 868. 
 California, 870. 
 Mississippi, 869. 
 Nebraska, 868. 
 Texas, 871. 
 suits for not defeated by equitable defenses, 876-882. 
 LAW AND JURISPRUDENCE— 
 
 system of administered in federal courts, 64-93. 
 
 LAWS OP THE SEVERAL STATES— 
 
 rules of decision in federal courts, 70-93, 1068, 1069, 1075, 1100. 
 
 except, when, 66, 67, 70-74, 1101. 
 federal administration of, 70-93. 
 constitutes body of the municipal law, 70. 
 local laws only binding on federal courts, 74, 1068, 1069. 
 
 embrace decisions of the highest courts, 1068. 
 power of federal judiciary to declare void, when, 69. 
 
GENERAL INDEX. 486 19 
 
 [References are to seetions.j 
 
 LAWS OP THE UNITED STATES— 
 
 supreme law of the land, 66, 67, 70-74, 1101. 
 
 power of the federal government to execute, 68, 394-399. 
 
 federal and state laws form one composite system, 65. 
 LAW AND EQUITY— 
 
 distinction between in federal courts, 163, 164, 506, 831-883, 887, 
 897, 930-932, 978-980, 999, 1038. 1041, 1044. 
 
 LEGAL AND EQUITABLE REMEDIES- 
 
 separately pursued in federal courts, 163, 164, 506, 831-883, 887, 897, 
 930-932, 978-980, 999, 1038, 1041, 1044. 
 
 LIBERTY— 
 defined, 250. 
 of contract, 251. 
 
 LOUISIANA— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 M. 
 
 MANDAMUS— 
 
 writ of, 494-501, 783. 
 defined, 494. 
 
 jurisdiction of supreme court to issue, 494-501. 
 circuit court has no original jurisdiction to issue except under 
 
 interstate commerce act, 643-648, 780-781. 
 jurisdiction of district courts to issue under interstate com- 
 merce act, 643-648. 
 
 MICHIGAN— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 MINNESOTA— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 Mississippi- 
 judicial system of, 869. 
 
 statute of, allowing suits for lands on registers' and receivers' cer- 
 tificates, 869. 
 venue of suits in federal courts in, 959, note 23. 
 
 MISSOURI— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 N. 
 
 NATURALIZATION— 
 individual, 229, 230. 
 collective, 231-233. 
 
 by admission of new states, 231. 
 
 admission of Texas, 232. 
 by treaty or statute, 233. 
 
486—20 GBNEEAL INDEX. 
 
 [References are to sections.] 
 
 NAVIGABLE WATERS— 
 defined, 524-531. 
 
 of the state, 534. 
 sovereignty over, reserved to the states, 41-52. 
 
 bridges over, 46. 
 
 improvement of, 48. 
 
 NEBRASKA— 
 
 statute of allowing suits for land on registers' and receivers' certifi- 
 cates, 868. 
 code of civil procedure, 1035. 
 venue of suits in federal courts in, 959, note 23. 
 
 NONSUIT— 
 
 history and nature of, 1137. 
 
 in federal courts, equivalent to peremptory instruction, 1137. 
 
 NORTH DAKOTA— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 OBITER DICTUM— 
 
 of Mr. Justice Bradley, 1133. 
 
 OHIO— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 PARTIES- 
 
 parties to suits at common law, 967-976. 
 controlled by state legislation, 677, 678. 
 
 limitations on the rule, 968-972. 
 controlled by common law, Ivhen, 972. 
 death of parties, 974, 975. 
 
 scire facias, Sli. 
 expiration of term of oflSce, 976. 
 
 PLEADING— 
 
 declaration, complaint or petition, 981-1002. 
 defendant's pleadings, 1025-1041. 
 intervention, 1042-1044. 
 state system of pleading adopted, 977-980- 
 exceptions, 978-980. 
 
 PLEAS— 
 
 classification of pleas, 1025-1032, 
 abatement, 1027-1030. 
 in bar, 1027-1033. 
 
GENERAL INDEX. 486 21 
 
 [References are to sections.l 
 
 PLEAS (continued)— 
 
 to the jurisdiction, 1026-1037. 
 
 due order of pleading, 1033-1037. " 
 
 equitable defenses not allowed, 978-980, 1038-1041. 
 
 POLICE POWER— 
 defined, 181, 190. 
 
 reserved to the states, 40-63, 179-208. 
 
 not taken away by the late constitutional amendments, 179-328. 
 states' power of taxation, 182-188, 288-298, 312-317. 
 quarantine laws, 62. 
 inspection laws, 53-61. 
 pilotage laws, 33. 
 
 improvement of harbors, bays and navigable rivers, 48. 
 Sunday laws, 192. 
 
 .incidentally affecting interstate commerce, 191, 192, 
 regulating the use of property affected with a public interest, 193- 
 
 196, 285, 304-308. 
 health laws, 197, 199, 310. 
 
 limiting hours of labor in unhealthy employments, 197, 310. 
 regulating slaughter of animals, 264. 
 roads and bridges, 46, 194. 
 regulating sale of intoxicating liquors, 261. 
 regulating carrying of dangerous weapons, 262. 
 separation of the races on railway trains, 263. 
 power of the state to maintain its own judicial system and proced- 
 ure, 204, 208, 265-267, 270-280. 
 protection of the elective franchise, 207, 259, 325, 326. 
 protection of fundamental rights, 205, 206, 250, 251. 
 protection of local commerce and Industries, 201, 202, 
 
 distinction between commerce and manufacture, 202. 
 safety of railroad crossings, 196. 
 cost of police supervision, 200. * 
 
 abolishing common-law fellow servant rule, 303. 
 making railroad companies responsible for fire, 304, 305, 
 prima facie evidence of negligence, 305. 
 attorneys fees, 305. 
 classification for purposes of legislation, 301-310. 
 classification for taxation, 295. 
 classifying cities for registration, 321. 
 
 imposing penalty on railroad company for disseminating Johnson; 
 grass seed, 322. 
 
 PROHIBITION— 
 writ of, 488-493. 
 defined, 488. 
 jurisdiction of supreme court to issue, 488-493. 
 
486 22 GENERAL INDEX. 
 
 [References are to sections.] 
 
 PRIVILEGES AND IMMUNITIES OF CITIZENS— 
 of the several states, 238-256. 
 of the United States, 258-268. 
 
 PROCESS, SERVICE AND RETURN— 
 
 federal statutory requisites of process, 1004. 
 
 power of federal courts to make rules concerning, 1005. 
 
 service of, 1006-1011. 
 
 by the marshal, 1006. 
 
 on aliens and alien corporations, 1009. 
 
 on foreign corporations, 934, 1008. 
 
 in local suits, 1010, 1011. 
 substituted service, 1011. 
 
 In personal actions, 1003, 1007. 
 necessity of service, 1003. 
 persons privileged from service, 1013. 
 return of process, 1012. 
 amendment of process, 1047. 
 amendment of return, 1012. 
 original writ at common law, 1003. 
 must be actual service within the state in personal actions, 1003. 
 
 Q. 
 
 ■QUARANTINE LAWS— 
 
 power of the states to enact, 62. 
 
 B. 
 
 REFEREE — 
 
 state statute authorizing trial by, not followed in federal court, 
 
 1052. 
 trial by a delusion and a snare, 1052. 
 
 RELATIONS OF FEDERAL AND STATE JUDICIARIES— 
 exclusive jurisdiction of federal courts, 402, 403. 
 three-fold character of federal jurisdiction, 404. 
 federal and state courts for some purposes form one system, 405. 
 REMOVAL OF CAUSES- 
 
 controlled by last judiciary act, 784. 
 
 only a method of acquiring original jurisdiction, 785-788. 
 
 classification of removable cases, 789-791. 
 
 two classes under special acts, 792, 828, 829. 
 defendants only can remove, 794. 
 
 none but non-resident defendants, 795. 
 one exception, 795. 
 all defendants must join in application, 796, 801. 
 suits arising under constitution, laws and treaties, 797-801. 
 
GENERAL INDEX. 486 23 
 
 [References are to sections.] 
 
 REMOVAL OF CAUSES (continued)— 
 character of parties, 802-805. 
 separable controversy, 807-810. 
 
 carries entire suit, 810. 
 prejudice or local influence, 811-816. 
 
 none but defendants, 813. 
 
 not allowed as between defendants, 814. 
 
 application made to federal court, 815. 
 procedure in removal of causes, 817-827. 
 
 petition and bond, 817. 
 when to be filed, 817. 
 
 on ground of prejudice or local influence, 823, 824. 
 judicial inquiry into facts, 824. 
 remanding cause, 825-827. 
 
 removal of suits against persons denied civil rights, 828. 
 removal of suits against revenue officers, 829. 
 
 REPLEVIN— 
 action of, 915. 
 
 RIPARIAN RIGHTS— 
 
 determined by state laws, 44. 
 
 subordinate to power of congress over commerce, 45. 
 
 RULES OF PROPERTY— 
 
 state laws constituting, 80, 1100. 
 binding on federal courts, 74, 80. 
 
 s. 
 
 SCIRE FACIAS— 
 action of, 918, 919. 
 
 SOVEREIGNTY— 
 
 attributes of divided between the federal and state governments, 17, 
 
 180. 
 faational sovereignty vested in the federal government, 16, 17, 20-22, 
 
 180. 
 municipal sovereignty reserved to the states, 16, 17, 40-63, 179-208. 
 
 defined, 181. 
 distinction between state and national sovereignty early drawn, 50. 
 doctrine of Marshall, Taney and Waite, 180, 181. 
 
 SPECIAL CASE— 
 defined, 1106. 
 practice regarding, 1107. 
 
 SPECIAL FINDINGS— 
 
 by the court in trials without a Jury, 1050, 1135, 1136. 
 requisites of, 1135. 
 
 spread on the minutes, 1136. 
 
486 — 24 GENERAL INDEX. 
 
 [References are to sections.] 
 
 SPECIAL ISSUE— 
 
 federal courts not bound to submit, 939. 
 distinction between, and special verdict, 1105. 
 are creatures of statute, 939, 1104-1107. 
 
 SPECIAL VERDICT— 
 defined, 1104. 
 origin of, 1103, 1104. 
 practice in regard to, 1104-1109. 
 errors arising out of, reviewed without Dill of exceptions, 1141. 
 
 STATE LAWS— 
 
 rules of decision in federal courts, 70-93. 1068, 1069, 1075, 1100. 
 
 except, when, 66, 67. 
 federal administration of, 70-93. 
 constitute body of municipal laws, 70. 
 
 SUITS AT COMMON LAW— 
 defined, 164, 890-920. 
 distinction between and suits m equity, 163, 164, 506, 831-883, 887 
 
 897, 930-932, 978-980, 999, 1038, 1040, 1044. 
 classification of, 894, 896, 897. 
 
 ex contractu or ex delicto, 894. 
 
 local or transitory, 896, 897, 947. 
 account, 901, 902. 
 
 concurrent jurisdiction in equity, 902. 
 annuity, 903. 
 assumpsit, 904, 905. 
 
 general, 904. 
 
 special, 904. 
 
 great common-law action, 905. 
 condemnation proceedings, 920. 
 covenant, 906. 
 debt, 610, 618, 739, 907. 
 detinue, 908, 909. 
 ejectment, 856-883, 916, 917. 
 
 legal title necessary to maintain, 859-862, 868-875. 
 
 equitable title no defense, 876-880. 
 replevin, 915. 
 scire facias, 918, 919. 
 trespass, 910. 
 
 trespass on the case, 911-913. 
 trover, 914. 
 
 SUPERSEDEAS— 
 
 upon writ of error, 449. 
 bond, 453. 
 
 SUPREME LAW OF THE LAND — 
 
 constitution, laws and treaties of the United States, 66, 67. 
 
GENERAL INDEX, 486 — 25 
 
 IReferences are to sections.] 
 
 T. 
 
 TAXATION— 
 
 power of the states to tax, 182-188, 288-298, 312-317. 
 due process of law in taxation, 288-297. 
 
 general rule, 290. 
 
 strict judicial procedure not required, 288. 
 
 notice, 291. 
 local assessments, 292, 293. 
 classificatl6n for taxation, 295, 296, 317. 
 non-resident mortgagee's interest, 294. 
 equal protection of the laws in, 312-317. 
 
 TAX ON IMPORTS AND EXPORTS— 
 the states inhibited from, 352-362. 
 imports and exports defined, 353. 
 imposts defined, 354. 
 inhibition does not apply to interstate shipments, 355. 
 
 TONNAGE DUTIES— 
 
 states inhibited from levying, 363-374. 
 
 tonnage defined, 364. 
 
 tonnage tax defined, 365. • 
 
 wharfage, 368-373. 
 
 -TENNESSEE— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 TEXAS— 
 
 citizens of, became citizens of the United States upon admission, 
 232. 
 admitted with her population as it stood, 232. 
 land system, 871. 
 judicial system, 871. 
 statute in regard to suits for land, 871. 
 
 TREASON — 
 
 defined, 101, 102. 
 
 evidence required to convict, 101. 
 
 penalty, 102. 
 
 ■TREATIES OF THE UNITED STATES— 
 nature of, 67, 707, 708. 
 removing disability of alien to take and hold land, 708. 
 
 affects status of person and not rules of property, 708. 
 supreme law of the land, 67. 
 
 ■TRESPASS— 
 action of, 910. 
 
 ■TRESPASS ON THE CASE- 
 action of, 911-913. 
 
486 26 GENERAL INDEX. 
 
 tReferences are to sections.] 
 
 TROVER— 
 
 action of, 914. 
 
 TRIAL OF SUITS AT COMMON LAW— 
 
 two modes for trial of issues of fact, 936, 1050, 1051. 
 
 by jury, 1050, 1051. 
 
 by court without jury, 1050. 
 
 not by referee under state law, 105? 
 
 issue of jurisdiction, 1053. 
 trial by jury, 1054-1128. 
 qualification of jurors, 1055, 1056. 
 
 how jurors drawn, 1058. 
 
 mileage and per diem of jurors, 1059. 
 
 writs of venire, facias, 1060. 
 
 talesmen, 1061, 1062. 
 
 special jurors, 1063. 
 
 challenges, 1064-1065a. 
 
 impaneling jury, 1066. 
 stating issues of fact to court and jury, 1067. 
 state rules of evidence control in federal courts, 1060. 
 witnesses, 1069-1070. 
 
 competency controlled by state law, 1069 
 
 subpoenas, 1070. 
 
 must testify orally, 937, 1071. 
 
 deposition when allowed, 1071, 1072. 
 mode of taking depositions, 937, 1073. 
 
 motion to suppress deposition, 1074. 
 surgical examination of plaintiff, 1075, 1076. 
 cross-examination of witnesses, 1070. 
 production of documentary evidence, 938, 1078-1085. 
 introduction of evidence, 1086. 
 objections to evidence, 1087-1089. 
 demurrer to evidence, 1090. 
 charge to the jury, 939, 1091-1101 
 
 withdrawal of the jury to deliberate on verdict, 940, 1102. 
 verdict, 1103-1113. 
 
 general or special, 1103-1105. 
 
 special case, 1106. 
 
 agreed case, 1107. 
 
 must find all issues of fact, 1108, 1109, 
 
 legal effect of, 1110. 
 
 amending verdict, 1112, 1113. 
 
 defects cured by, 1114. 
 motion in arrest of judgment, 1115. 
 
 for judgment, non obstante veredicto, 1116, 
 
 repleader, 1116. 
 new trial, 944, 1117-1123. 
 
GENERAL INDEX. 486 — 27 
 
 [References are to sSctions.] 
 
 TRIALS OP SUITS AT COMMON LAW (continued) — 
 judgment, 1124, 1126. 
 execution, 942, 943, 1127, 1128. 
 trial by the court without jury, 1129-1136. 
 
 procedure in, 1129, 1130. 
 
 stipulation waiving jury, 1131. 
 
 what questions of law may be raised and reviewed, 1132-1134. 
 
 outer dictum of Justice Bradley, 1133. 
 
 procedure stated by Justice Miller, 1134. 
 
 requisites of special finding, 1135. 
 
 special finding should be spread on minutes, 1136. 
 preparing case for review, 945, 1138-1163. 
 
 u. 
 
 UTAH— 
 
 venue of suits in federal courts in, 959, note 23. 
 
 VENUE OF SUITS AND COMMON LAW— 
 local or transitory, 947. 
 in federal courts, 947-966. 
 regulated by federal statute, 948. 
 brought where defendant resides, 949-954, 959-966. 
 
 in the state and district, 949, 950. 
 when jurisdiction based on diversity of citizenship, 951-953. 
 against national banks, 953. 
 against aliens and alien corporations, 954. 
 local suits, 955-958. 
 infringement of patents, 961 
 to protect commerce, 962. 
 
 for damages under federal anti-trust act, 963. 
 for pecuniary penalties and forfeitures, 964. 
 for internal revenue taxes, 965. 
 by national banks against comptroller of currency, 966. 
 
 VERDICT— 
 
 general or special, 1103. 
 special verdict defined, 1104. 
 
 practice in regard to, 1104, 1105. 
 special case, 1107. 
 agreed case, 1107. 
 
 must find all the issues of fact, 1108, 1109. 
 legal effect of, determined by state law, 1110 
 32B 
 
486 28 GENERAL INDEX. 
 
 [References are to sections.] 
 
 VERDICT (continued) — 
 
 special finding by the court, 1135, 1136. 
 requisitee of, 1135. 
 spread upon the record, 1136. ■ 
 
 VIRGINIA— 
 
 tax and coupon cases, 679-681, 688-691. 
 
 W. 
 
 "WASHINGTON— , 
 
 venue of suits In federal court in, 959, note 23. 
 
 WHARFAGE— 
 
 what is, 368-373. 
 
 reasonableness of a question of law and fact, 372. 
 determined by local law, 373. 
 
 "WITNESSES— 
 
 competency, 1069. 
 
 controlled by state law, 1069. 
 
 subpoena for, 1070. 
 WRIT OP ERROR— 
 
 defined by the common law, 422, 423. 
 
 no re-examination of facts upon, 424. 
 
 lies to review final judgments only, 437, 438. 
 
 to what court it should run, 439-441. 
 
 the foundation of the appellate jurisdiction, 442. 
 
 when and by what judges allowed, 443, 1157. 
 
 what clerks authorized to issue, 444, 1158. 
 
 form and requisites, 445. 
 
 may be amended, 448. 
 
 service and return, 446, 447, 1159, 1160. 
 
 within what time sued out, 454, 1162. 
 
 not the commencement of a new suit, 423. 
 
 when clerk of state court refuses to make return, 1160. 
 
 parties to writs' of error, 455-457. 
 
 bond, 453. 
 
 supersedeas, 449. 
 
 citation in error, 450-452, 1161. 
 
 service and return, 451, 452, 1161.